MICHAEL COTTER, Applicant
CITY OF OSHKOSH
FIRE DEPARTMENT - CITY CLERK, Employer
CITY OF OSHKOSH
c/o HILB ROGAL & HOBBS OF APPLETON, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed May 30, 2006
cottemi . wsd : 175 : 4 ND § 1.5
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant asserts in his petition for commission review the administrative law judge erred in determining the applicant suffered 10 percent permanent partial disability due to his quadriceps tendon repair and partial meniscectomy due to his work injury on September 26, 2003. The applicant asserts the administrative law judge should have credited the opinion of his treating physician, Dr. Spears, who opined the applicant suffered 10 percent permanent partial disability due to his quadriceps tendon tear repair, and the combined impairment would be 15 percent. The applicant testified to his ongoing pain and restrictions as a result of his work injury. However, the administrative law judge appropriately noted that Dr. Spears did not comment on the applicant's constant pain when he rated the applicant. The applicant's work capacity overview on April 27, 2004, noted the applicant was able to meet the demands of, the job with the use, of knee pads for kneeling and crawling, and was able to lift 150 pounds in full firefighter gear. The applicant demonstrated an ability to perform very heavy work. The applicant's discharge summary on April 27, 2004, noted the applicant had met all of his treatment and return-to-work goals, and he was returned to his pre-injury firefighter job with no restrictions.
Dr. Alt's notes on September 28, 2004 state the applicant had been seen postoperatively following an excellent repair of a distal quadriceps tendon rupture by Dr. Bentson. Dr. Alt noted the applicant has performed both, active firefighting tasks and ambulance tasks, as well as EMS tasks, very successfully since his discharge from worker's rehabilitation. Dr. Alt stated the applicant was able to perform a full squat without assistance in getting back up, and had normal active range of motion at the knee, including flexion and extension. The applicant's treatment notes on April 28, 2004 state the applicant was quite pleased with the resolution of his symptoms, although he does continue to have difficulties running and jogging, he was able to squat to the 75th percentile, and he still does require kneeling pads when he is on his hands and knees.
The treatment notes on April 28, 2004 stated the applicant was lacking perhaps two to three degrees of terminal extension, but he has full flexion and very good strength against resistance. The administrative law judge appropriately noted the applicant has good stability, excellent strength, and does not receive any medication or treatment for his pain and swelling, and has been released without restrictions to resume a very physically demanding job. In addition, the applicant's five degree loss of flexion was far less than the threshold 45 degree loss required to reach a mimmum disability rating of 10 percent for loss of range of motion under Wis. Admin. Code § DWD 80.32(4).
Dr. Guten, who examined the applicant on behalf of the employer, noted in a letter dated July 28, 2005, the applicant has made an excellent recovery from the quadriceps tendon repair and medial meniscectomy, and should be granted a five percent permanent partial disability for the quadriceps tendon repair and an additional five percent for the meniscectomy for a total of 10 percent permanent partial disability for the work injury in 2003. In addition, Dr. Guten noted in his report dated June 21, 2005, the applicant was very happy with the results of surgery and his pain level went from a preoperative level of seven to a pain level of one to three if he kneels or works long 24-hour shifts.
The administrative law judge credited Dr. Guten's assessment. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's determination. The evidence indicates that the applicant continues to have some swelling and has lost five degrees of flexion, with some functional loss. Based on Dr. Guten's assessment, as well as the applicant's testimony and the evidence of the applicant's disability, and the fact the applicant was released to return to work without restrictions, without the need for ongoing treatment or medication, the evidence was sufficient to establish the applicant suffered 10 percent permanent partial disability as a result of his work injury in 2003.
The applicant states in his petition for commission review that he feels that he was not well represented by his attorney in the matter. However, the evidence indicates the applicant's attorney presented several exhibits and conducted direct examination of the applicant at the hearing. The applicant states in his petition that he paid his attorney $2,000. The administrative law judge did not award attorney's fees in this matter. Nothing in the record indicates that the applicant's attorney required the applicant to pay any attorney's fees. However, if it is established the applicant paid attorney's fees in this matter, Wis. Stat. § 102.26(4) provides the charging or receiving of any fee in violation of this section shall be unlawful, and the attorney or other person guilty therefore shall forfeit double the amount retained by the attorney or other person, the same to be collected by the state in an action in debt upon complaint of the department.
cc:
Attorney Joseph P. Danas, Jr.
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