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

CHARLES DUANE SMITH, Applicant

MEYER BROTHERS GRAIN INC, Employer

MUTUAL SERVICE CASUALTY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-061166


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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 November 14, 2003
smithch . wsd : 175 : 1  ND 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant suffered 10 percent permanent partial disability as a result of his work related knee injury on December 14, 2000. The evidence indicates that following the applicant's work injury Dr. McNally performed partial medial and lateral meniscectomies on January 19, 2001. Dr. McNally opined in his WC-16-B dated May 18, 2001 the applicant suffered 10 percent permanent partial disability consistent with partial medial and lateral meniscectomies with an overall good result postoperatively.

The employer argues that pursuant to Wisconsin Administrative Code § DWD 80.32(4) the applicant was entitled to only 5 percent permanent partial disability for his knee injury and subsequent surgery. Wisconsin Administrative Code § DWD 80.32(1) provides that the disability set forth in this section are the minimums for the described conditions, and findings of additional disabling elements shall result in an estimate higher than the minimum. Wisconsin Administrative Code § DWD 80.32(4) provides that the total or partial meniscectomies open or closed procedure, with excellent to good results, results in 5 percent permanent partial disability.

In this case Dr. McNally, the applicant's surgeon, credibly opined that the applicant suffered 10 percent permanent partial disability consistent with both partial medial and lateral meniscectomies. The applicant testified he still has some lingering problems with his right knee and needs to wear a brace at times, although he has been able to work without restrictions, and is not under any medication or currently undergoing treatment.

There is nothing in the record to contradict Dr. McNally's assessment of 10 percent permanent partial disability. Dr. Barron, who examined the applicant on behalf of the employer, concluded in a report dated March 5, 2001 he expected the applicant to reach a healing plateau within two to three months with a minimum of 5 percent permanent partial disability to the right knee. The administrative law judge appropriately noted that Dr. Barron failed to obtain a permanent disability rating on the applicant's knee.

The employer's insurer argued at the hearing that the applicant was not entitled to more than 5 percent permanent partial disability because the medial and lateral meniscectomies were done in one surgical procedure. However, Dr. Barron admitted in his report on March 5, 2001 the applicant would suffer a minimum of 5 percent permanent partial disability at the right knee, and therefore it appears that Dr. Barron anticipated the possibility of a higher disability rating. The question of the applicant's level of disability as a result of his work related right knee injury on December 14, 2000 is a question of fact. The employer contends that the applicant switched theories just prior to the hearing and sandbagged the employer by leading the employer to believe that the only fighting issue was whether the administrative code provision could be interpreted to provide for 5 percent permanent partial disability at the knee or 10 percent.

However, it is clear that the issue was presented to the parties as a question of fact as to the nature and extent of permanent disability, and not just a legal interpretation of Wisconsin Administrative Code § DWD 80.32(4). The employer had a long advance notice of Dr. McNally's assessment of 10 percent permanent partial disability at the right knee consistent with his lateral and medial meniscectomies. The employer was also aware that Dr. Barron did not file a final assessment of permanent disability. The administrative law judge appropriately noted in her Memorandum to the Order that an award for permanent partial disability is not based solely on the code provisions in DWD 80.32 which only provide the minimum awards for certain surgical procedures. The administrative law judge also noted that the insurer's attorney acknowledged that 5 percent was only a minimum in his letter dated October 24, 2001 and that all permanent disability claims inherently involve a factual dispute. The commission agrees with the administrative law judge that the insurer received due notice of the permanent partial disability dispute, and had ample time to obtain a final rating from Dr. Barron but failed to obtain one prior to the hearing.

Given the nature and extent of the applicant's knee injury, and the need for resulting surgery, and based on Dr. McNally's report, and given the applicant's testimony that although he does not have any severe ongoing problems in his right knee he does have restrictions, cracking and discomfort in the joints, as well as the need to wear a knee brace at certain times, the evidence was sufficient to establish the applicant suffered 10 percent permanent partial disability at the right knee as a result of his work related injury.

cc:
Attorney Steve M. Jackson
Attorney Jeffrey J. Strande


 

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