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


DAWN MARIE STANISLOWSKI, Applicant

HONTHANERS RESTAURANTS INC, Employer

NORTH RIVER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994043687


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 23, 1998. Respondents submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded right arm/elbow injury of July 9, 1994.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is January 20, 1956, was employed as a cook for the employer, a George Webb restaurant. On July 9, 1994, she was flipping eggs with a frying pan when she heard a "pop" in her right elbow and thereafter could not use it. Her right hand also began to swell and she wrapped the elbow in ice. She told her supervisor about the problem but the supervisor told her to pop the elbow back and go to work. The applicant cannot recall whether she stayed the entire shift, but she could only use her left hand. She was able work as a waitress for the employer during the next three days, with pain, but went to the hospital emergency room on July 12, 1994. They told her to go to a physician. The applicant continued to work as a waitress, but only for about half time.

She went to Dr. D. P. Bogunovic on August 16, 1994, and he took her off work and began a long period of conservative treatment for his diagnosis of right lateral epicondylitis. Dr. Bogunovic ordered an MRI of the right elbow joint on April 6, 1995, and it showed mild degenerative spurring in the region of the lateral epicondyle, with a possible old chip fragment in that region. He referred the applicant for a second opinion to Dr. M. S. Shivaram on April 17, 1995, and Dr. Shivaram concurred in the diagnosis of lateral epicondylitis. However, Dr. Shivaram recommended that the applicant attempt a return to work without restriction. Dr. Bogunovic concurred in this recommendation but the applicant did not go back to work. She telephoned her boss and told him she had been released for work. He asked her if she was better and she told him she knew she could not do the work because she could not hold any significant weight in her right hand. The employer did not take her back to work. Dr. Bogunovic's clinic note of May 9, 1995, indicates that the applicant is not able to work, which is consistent with her credible testimony that at that time he told her she should stay off work.

Dr. Bogunovic referred the applicant to Dr. W. B. Hobbins in May 1995, and Dr. Hobbins diagnosed sympathetic reflex dysfunction, noting that thermograms of the right hand and forearm were hypothermic. Dr. Hobbins recommended stellate ganglion blocks, and the applicant underwent several without any lasting benefit. She subsequently received steroid injections, which also failed to have lasting benefit.

Dr. Bogunovic also opined that the applicant has reflex sympathetic dystrophy of the right arm, as well as right forearm fibromyalgia. On March 26, 1996, he opined that she had reached a healing plateau and recommended continued exercise and use of pain medication as needed. He assessed 50 percent permanent partial disability at the right elbow.

At the insurer's request the applicant was examined and evaluated by Dr. R. W. McCabe on August 4, 1994. He diagnosed right lateral epicondylitis and recommended continued light duty work as well as physical therapy. On February 9, 1995, Dr. McCabe reexamined the applicant. He noted that a bone scan performed on February 1, 1995, did not suggest a serious disease process in the right arm, but there was a slight concentration of dye in the elbow. Dr. McCabe found the applicant's complaints unsupported by physical findings, opined that there was no objective evidence of persistent disease in the right arm, found a healing plateau, and recommended release to work without restriction.

On January 8, 1998, Dr. McCabe again examined the applicant. He found no signs of swelling, color change, sweating, or sensitivity to cold to verify the reflex sympathetic dystrophy diagnosis. He did find there was weakness of grip. Dr. McCabe opined that the applicant's history was suggestive of a Stage I reflex sympathetic dystrophy that had never progressed to Stage II. He reiterated his opinion that she had reached a healing plateau as of February 9, 1995, without permanent disability.

On or about August 19, 1998, Dr. W. W. Dzwierzynski reviewed the applicant's medical records. He rejected all of the diagnoses made by Dr. Bogunovic and Dr. Hobbins.

In consultation with the commission, the administrative law judge indicated that he did not find the applicant to have been a credible witness. He reiterated his findings that the videotape evidence, as well as the lack of objective findings in the x-ray, CT scan, and EMG results, led him to accept the medical opinions of Dr. McCabe and Dr. Dzwierzynski. The commission was also persuaded that the applicant has been over-diagnosed and over-treated for her right elbow problem; however, even Dr. McCabe acknowledged that the applicant originally sustained a right epicondylitis, and that she may have had a Stage I reflex sympathetic dystrophy. The commission found the videotape evidence showed the applicant did favor her right arm, albeit moderately. Dr. Bogunovic also viewed the videotape and found it unpersuasive (see his letter dated September 3, 1998, at Exhibit K, page 3). Dr. Bogunovic noted in a letter dated September 5, 1995 (Exhibit A, page 3), that the applicant's right arm continued to be swollen, cold, hypersensitive, tender on palpation, and very weak in spite of therapy. All these symptoms supported the diagnosis of reflex sympathetic dystrophy.

Given the entire record, the commission finds it credible that the applicant continued to receive medical treatment from her physicians in good faith. The commission further finds that the applicant believes herself to be permanently disabled, when in fact Dr. McCabe credibly opined that her epicondylitis and reflex sympathetic dystrophy have resolved without any permanency. In accordance with Spencer v. ILHR Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972), the medical treatment she received and temporary disability she incurred up to Dr. Bogunovic's assessment of a healing plateau on March 26, 1996, is compensable regardless of its reasonableness or necessity. Therefore, the applicant is entitled to additional temporary total disability from February 4, 1995 through March 26, 1996, a period of exactly 64 weeks at the applicable rate of $288 per week, for a total of $18,432. A 20 percent attorney's fee plus $385.45 in costs will be subtracted from this award.

The applicant also incurred the following medical expenses prior to March 26, 1996, and related to the work injury: $825 to Diagnostic Imaging; $3,820 to Dr. Bhupinder Saini of Advanced Pain Management; $147 to Dr. Mysore Shivaram; $331.75 to Milwaukee Radiology Consultants; $3,375.20 to Dr. Dragan Bogunovic of Olympic Medical Center; $4,371.60 to Trinity Hospital; and as reimbursement to the applicant for medical expense which she paid the sum of $567.74.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Honthaners Restaurants doing business as George Webb, or North River Insurance Company, shall pay to the applicant the amount of Fourteen thousand three hundred sixty dollars and fifteen cents ($14,360.15); to Attorney Susan Rosenberg, fees in the amount of Three thousand eight hundred sixty dollars and forty cents ($3,860.40), and costs in the amount of Three hundred eighty-five dollars and forty-five cents ($385.45); to Diagnostic Imaging the sum of Eight hundred twenty-five dollars ($825); to Dr. Bhupinder Saini of Advanced Pain Management the sum of Three thousand eight hundred twenty dollars ($3,820); to Dr. Mysore Shivaram the sum of One hundred forty-seven dollars ($147); to Milwaukee Radiology Consultants the sum of Three hundred thirty-one dollars and seventy-five cents ($331.75); to Dr. Dragan Bogunovic of Olympic Medical Center the sum of Three thousand three hundred seventy-five dollars and twenty cents ($3,375.20); to Trinity Hospital the sum of Four thousand three hundred seventy-one dollars and sixty cents ($4,371.60); and to the applicant, as reimbursement for medical expense which she paid, the sum of Five hundred sixty-seven dollars and seventy-four cents ($567.74).

Dated and mailed March 31, 1999
stanida.wrr : 185 : 7   ND 5.50

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge and would accept his decision as my own. I do not believe that the incident at work caused any permanent disability.

cc: ATTORNEY ANTHONY J SKEMP
DOMNIZ MAWICKE GOISMAN & ROSENBERG SC

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC


Appealed to Circuit Court. Affirmed October 11, 1999.  Appealed to the Court of Appeals.  Affirmed November 28, 2000. [Court of Appeals decision]. Petition for Supreme Court review denied, February 7, 2001, Wilcox, J., dissenting.

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