Wis.LIRC WC Decision: Bowe, Rodney - April 26, 2006 - ND 5.18 - Schedule Injury - DWD 80.32 minimum ratings - evidence supports finding that "rather extensive" left knee surgery likely resulted in disability beyond minimum - applicant argument for "per-unit" basis, so bilateral meniscectomy warrants a 10% PPD, discussed but not relied on

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

RODNEY BOWE, Applicant

CITY CHIPPEWA FALLS, Employer

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-024447

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, and hereby affirms the ALJ's order except as modified. The commission makes the following modification:

Delete the second sentence of the paragraph which begins on the bottom of page three and ends on page four of the ALJ's order; and also delete the second full paragraph on page four of the ALJ's order.

INTERLOCUTORY ORDER

The findings and interlocutory order of the administrative law judge is affirmed as modified.

Dated and mailed April 26, 2006
bowero . wsd : 175 : 8 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 ten percent permanent partial disability at the left knee as a result of his work-related knee injury on June 3, 2003. The employer contends the administrative law judge erred in crediting Dr. Drawbert's assessment of ten percent permanent partial disability. The employer points to the fact the applicant was released to return to work from his original surgery without restriction, and he had no problems until his second left knee injury in December 2003. The employer states that Dr. Drawbert did not see the applicant after he rated him at three percent permanent partial disability, until after he had his second injury.

However, Dr. Drawbert, the applicant's treating physician, specifically noted in a letter dated June 6, 2005, the applicant had a repeat injury in December 2003, but he sustained ten percent permanent partial disability to the left knee as a result of his June 3, 2003 injury. Dr. Drawbert opined that despite the repeat injury in December 2003 the applicant's ten percent permanent partial disability was a result only of his June 3, 2003 injury. Dr. Drawbert noted that the applicant's work injury in June 2003 resulted in significant arthroscopic knee debridement in July 2003, including a partial medial and lateral meniscectomy, as well as significant chondroplasty for a rather severe articular cartilage problem. The administrative law judge appropriately noted that Dr. Drawbert examined the applicant's left knee on multiple occasions since February 2004, long after a healing plateau from the June 2003 injury, and appropriately inferred that the applicant's left knee had not healed as well as Dr. Drawbert had anticipated in August 2003 resulting in the increased rating. The commission also agrees the applicant's rather extensive left knee surgery following the June 3, 2003 injury would likely result in disability beyond the minimum as found by Dr. Drawbert. The commission credits Dr. Drawbert's assessment that the applicant's work injury on June 2003 resulted in ten percent permanent partial disability at the left knee.

The commission notes that the applicant also argued that the per level rating system for spinal surgeries in Wis. Admin. Code § DWD 80.32(11) indicates that other minimums in DWD 80.32 should also be applied on a per-unit basis, and since the knee contains two menisci, a unilateral meniscectomy warrants a five percent permanent partial disability minimum, and a bilateral meniscectomy warrants a ten percent permanent partial disability minimum. Since the commission credits Dr. Drawbert's assessment of permanent disability it need not decide this issue. However, the commission notes that the applicant's argument is consistent with the commission's decision in Smith v. Meyer Brothers Grain Inc., Comm. Dec. dated November 14, 2003. In the Smith case the applicant's treating physician performed partial medial and lateral meniscectomies due to the applicant's work-related knee injury and awarded ten percent permanent partial disability in accordance with the treating physician's assessment of permanent disability.

cc:
Attorney Thomas A. Siedow
Attorney Richard D. Duplessie

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