STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


DENNIS GRAY, Applicant 

MASTER LOCK CO, Employer

NATIONAL UNION FIRE INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94024018


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed April 30, 1996
grayde.wsd : 101 :  3 ND 3.42

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In their petition for review, the employer and the insurer (collectively, the respondent) assert that the administrative law judge erroneously found the opinion of the applicant's treating Dr. Chamoy more credible than that of the respondent's experts, Timothy O'Brien, M.D., and Kurt T. Hegmann, M.D. The respondent asserts that the record does not show that Dr. Chamoy ever obtained a correct history, personally observed the applicant's job duties, or even possessed the credentials necessary to render an expert opinion on causation.

However, Exhibit A includes a copy of a practitioner's report, on form WC-16-B, certified by Lewis Chamoy, M.D. Assuming Dr. Chamoy's signature is genuine, and the respondent does not allege it is not, he is qualified to give an expert opinion on causation under sec. 102.17 (1)(d), Stats. Testimony about credentials or attachment of a curriculum vitae is not necessary.

The respondent also asserts that Dr. Chamoy's report contains inaccurate or inconsistent information. First, the respondent takes issue with Dr. Chamoy's statement that the applicant worked for the employer for five years assembling locks. The employer points out that the applicant only assembled the number 17 lock for one year, and held a variety of different duties before that.

However, the fact remains that the applicant worked for the employer for five years, and his previous duties included assembling bicycle locks. Dr. Chamoy's history is not inaccurate on this point, so much as not completely specific. In order to reverse on this basis, the commission would have to infer that Dr. Chamoy in fact had incomplete information, and that the distinction between assembling number 17 locks for five years as opposed to assembling number 17 locks for one year and other locks for four years was material. The commission declines to reach those inferences on this record.

The respondent also questions Dr. Chamoy's choice to mark the "Lewellyn 3" causation (1) box on the practitioner's report. The respondent wonders when the preexisting degenerative problem that work aggravated beyond normal progression would have developed. The employer also suggests that if repetitive work were aggravating a preexisting condition, then it would clearly be material whether the applicant had been doing the number 17 lock for one year or five.

However, Dr. Chamoy marked both the "Lewellyn 3" causation box and the occupational disease causation box on the form practitioner's report. It is clear from the letters and notes attached to his practitioner's report that Dr. Chamoy believes the repetitive work assembling the locks caused the applicant's disability.

Neither this commission nor reviewing courts are inclined to automatically disregard a treating doctor's opinion because he mismarked the practitioner's report form or because he marked more than one of the boxes dealing with legal causation. (2) Further, the court of appeals has indicated that Lewellyn 3 causation (work activity that aggravates, accelerates and precipitates a preexisting condition beyond normal progression) and occupational disease causation (workplace exposure that causes or materially contributes to a condition) are related conceptually. (3) In fact, occupational disease is broadly defined as mental or physical harm caused by occupational exposure that is not so sudden or traumatic as to fit in the definition of an accident. (4) Moreover the court of appeals has held that multiple trauma itself can cause occupational disease, (5) as Dr. Chamoy believed to be the case here.

The respondent's stronger assertions are that Dr. Chamoy did not have an accurate description of the physical demands required by the applicant's job duties, leading the doctor to the incorrect conclusion that work caused the applicant's disability. However, the commission cannot agree. The applicant credibly testified that his job assembling locks involved use of mallets to force rivets or pins, a task which even independent medical examiner Hegmann reported involved mild to moderate force. The applicant credibly testified that he performed this task many times during the day, and at times would hit lock bodies "wrong" with the mallets.

Dr. O'Brien conceded that physically demanding, repetitive activities may cause ligaments to tear, give way or attenuate. However, he concluded that the applicant's duties did not involve such activities. The commission carefully examined the record, including the photograph exhibits, in light of the applicant's testimony. Having done so it concludes that Dr. O'Brien, not Dr. Chamoy, had the incorrect perception of the force involved in the applicant's work duties.

More importantly, Dr. Chamoy's history accurately records that the applicant did not have a history of trauma to the wrist. This history is borne out by the applicant's credible testimony on the point. On the other hand, Dr. Hegmann stated directly, and Dr. O'Brien's opinion implies, that the applicant's injury was caused by an off-duty acute injury, most likely from sporting activities.

The commission acknowledges that the applicant did play basketball and apparently football. However, the opinions
of Drs. Hegmann and O'Brien do not indicate simply playing those sports causes a ligament tear or disruption; rather, a traumatic injury occurring while playing is required. Since the administrative law judge credited the applicant's testimony that no traumatic injury occurred, a credibility assessment the commission reaches as well, the judge properly accepted the opinion of Dr. Chamoy over the opinions of Drs. O'Brien and Hegmann.

Finally, the applicant testified that he experienced an onset of pain on February 23, 1994. The respondent contends that the applicant testified he did not work on February 23, but that the synopsis inaccurately records this as February 28. The employer suggests that the fact the applicant did not work on February 23, coupled with the fact he did not seek treatment until February 27, means that work could not have caused a ligament tear or disruption which would have caused immediate pain.

However, both the synopsis of the testimony and judge's handwritten notes record the applicant's testimony that he noticed swelling on February 23 and that the day he missed work was February 28. In addition, the employer's own industrial injury report form completed in early April 1994 indicates that the injury occurred on February 23 or 24. The record affirmatively indicates the applicant was working on February 24 and 25. Finally, the February 27, 1994 treatment note indicates symptoms for two days. Respondent's Exhibit 9. In short, the fact that the applicant did not seek treatment until Sunday, February 27, does not mean the applicant's injury was not caused by work.

cc: ATTORNEY MARVIN RESNICK
RESNICK & RESNICK SC

ATTORNEY JAMES P REARDON
KASDORF LEWIS & SWIETLIK SC


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Footnotes:

(1)( Back ) Disability caused when a work activity precipitates, aggravates, and accelerates a preexisting degenerative condition beyond its normal progression. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).

(2)( Back ) Anderson v. LIRC and Quad Graphics, court of appeals case no. 95-1023-FT, district I unpublished decision dated November 7, 1995; and Johnson Welding and Manufacturing Company v. LIRC and Skogstad, Eau Claire County Circuit Court case no. 94CV704 (July 3, 1995).

(3)( Back ) Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982).

(4)( Back ) Neal and Danas, Workers Compensation Handbook, sec. 3.4 (3d ed., 1990).

(5)( Back ) Shelby, supra.