No reversible error by failure to plead specific diagnosis

The commission affirms an award for a right wrist injury after a "pop" based on the rating  for a wrist fracture of the claimant's expert and an offset to short term disability benefits paid by the employer. Thomas Penning v Harley Davidson, April 25, 2018  DOLIR  2018  MOWCLR LEXIS __

Claimant was doing assembly work in 2013 and was treated for carpal tunnel and scaphoid fracture and underwent a carpal tunnel release and fusion to the wrist.  He was rated with a 35% disability by his own expert for the fusion..  Dr. Guinn testified the accident caused the fracture.  The ALJ found Dr. Toby's opinions disputing causation about the fracture was based on an inaccurate history.  The employer offered no evidence to dispute the disability opinions of Dr. Poppa who rated 35% for the fusion and 25% for the carpal tunnel.  The ALJ awarded open medical for the fracture, noting a "prn" release, but did not award open medical for carpal tunnel based on the testimony that claimant may require further testing.

The Commission noted a sudden onset of symptoms was consistent to support a medical opinion that accident caused a fracture or destabilized a previously asymptomatic fracture and either scenario supported proof of a change in pathology which caused a need for treatment.  The Commission notes a finding in a radiology report that a fracture was "healing" to infer an acute onset. 

The Commission rejected the defense argument that claimant was procedurally barred from pursing benefits for carpal tunnel because he did not plead a carpal tunnel injury.   The Commission further noted no basis in the regulations for the defense to object to the submission of a proposed award.  There was no error alleged regarding the award of temporary total and future medical.


ALJ  Heffner, Billam
Atty:  Perkins
Experts:  Poppa, Guin
Treater Bagby