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

ROBYN VAN LAANEN, Applicant

AGRILINK FOODS INC, Employer

LUMBERMENS MUTUAL CAS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 2003-030083, 2005-010300


Agrilink Foods, Inc. and Lumbermens Mutual Casualty Co. (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 29, 2005. The applicant also submitted a petition for commission review. At issue are whether the applicant sustained bilateral knee injuries arising out of and in the course of her employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense and vocational retraining.

On September 12, 2005, the commission issued a remand order for the taking of additional evidence, and that additional evidence has now been received.

The commission has carefully reviewed the entire record in this matter, and hereby modifies and affirms the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birth date is March 29, 1944, began her employment with the employer in 1981 as a general factory worker. In 1983, she obtained her LPN license and transferred to the position of company nurse. In December 1990, she was in a motor vehicle accident in which both of her knees hit the dashboard. She received substantial medical treatment for the knee injuries including a left knee arthroscopy for patellar debridement in December 1991, and a right knee arthroscopy for patellar debridement in January 1992. She returned to her employment without restriction at the end of January 1992.

Her duties as a company nurse involved a good deal of walking about the plant, climbing stairs, and carrying safety and first aid supplies. During the packing season of July through October/December, she was on her feet approximately 60 percent of the time for 50-52 hours per week. During the off-season her job was 80 percent sedentary and she normally worked eight hours per day. She has a history of obesity, weighing between 250 and 300 lbs. from 1992 until having bariatric surgery in 2002.

After January 1992, the applicant did not receive medical treatment for her knees, but she occasionally experienced pain in them after prolonged walking or stair climbing. On May 17, 2000, she tripped and fell forward on the concrete floor at the plant while carrying some pamphlets. She landed on both knees causing severe pain, and was unable to get up off the floor for about ten minutes, when the production supervisor helped her into a chair. She did not miss work. She did not make a formal report of the incident because she did not want to ruin the employer's safety record, and because she was afraid of how the employer might react to her report of an injury. However, she did eventually note the incident in the employer's Daily Record of First Aid that she was in charge of completing. She also made entries in this Daily Record of pain she experienced in her knees after the fall.

The applicant treated herself with over-the-counter medication and tolerated her knee pain without a formal report until February 12, 2003, when she learned that the employer was going to shut down the plant. Her last day of work was April 30, 2003. The applicant's knee pain after the May 2000 fall was more severe and frequent than it had been prior to the fall. She sought treatment for her knees with Dr. James Grace on June 3, 2003, and he performed right knee replacement surgery on January 10, 2003, and left knee replacement surgery on February 16, 2004. On December 16, 2004, Dr. Grace opined that the May 2000 fall aggravated and accelerated the applicant's preexisting bilateral knee condition, and also opined that the applicant's work duties were a material contributory causative factor in the onset or progression of that bilateral condition.

At the insurer's request, Dr. Dale Blasier examined the applicant on October 10, 2003. In his report dated October 27, 2003, he opined that the applicant's knee condition, which he diagnosed as pattelofemoral degenerative arthrosis, began with the automobile accident in 1990, and gradually deteriorated with significant aggravation of the condition by the applicant's excessive weight "on a nonindustrial basis." He further opined that the May 2000 fall ". . . could not have led to the requirement for total knee replacement," and he cited the fact that the applicant had no medical treatment for her knees after this fall, until three years had passed.

In response to the commission's remand order, Dr. Grace submitted a supplemental medical opinion again indicating that the applicant's work exposure with the employer was a material contributory causative factor in the onset or progression of her bilateral knee condition and knee replacements. This opinion was given after Dr. Grace had reviewed an accurate description of the amount of time the applicant spent on her feet during her years of employment with the employer. Dr. Blasier's supplementary opinion was that the applicant's work exposure with the employer was not causative of her bilateral knee condition and knee replacements. Dr. Blasier specifically opined that:

  1. Ambulation is not a medically probable cause for degenerative arthritis leading to joint replacement surgery;
  2. The applicant did not have to walk much at work; and
  3. The applicant's excessive weight and degenerative patellofemoral arthrosis are what led to her requirement for knee replacement surgery.

Dr. Blasier's opinion somewhat underestimated the length of the employer's packing season (he estimated it at from 3-to-6 months in length, when it was actually 5-to-7 months in length).

Dr. Grace's opinion of an occupational cause for the applicant's bilateral knee condition and knee replacements is accepted as credible. While the parties continue to dispute the exact amount of time the applicant spent on her feet during each year of her employment with the employer, it is clear that the job did involve a regular and substantial amount of walking that included stair climbing and occasional lifting. Certainly, the applicant's excessive weight, when combined with her work exposure, was also causative. However, the employer took the applicant "as is," and her weight problem does not constitute a defense to her claim for worker's compensation.

The applicant's knees were also subjected to traumatic injury in the nonindustrial incident of December 1990, as well as in the work incident of May 2000. Dr. Blasier opined that the December 1990 nonindustrial injury began a process of bilateral patellofemoral arthrosis, and that this arthrosis progressed unaffected by the applicant's work exposure. Dr. Blasier additionally opined that the May 2000 work injury could not have led to the requirement for total knee replacements, and he cited the three-year delay between that injury and the date of formal medical treatment. Finally, Dr. Blasier opined that the applicant's excessive weight contributed to the progression of her knee condition, but only on a nonindustrial basis.

Dr. Blasier fails to explain how the applicant's excessive weight could be causative unless the force of that weight was transferred to the applicant's knees by walking, stair climbing, or other activities while on her feet. His reference to an aggravation "by this excessive weight on a nonindustrial basis" could only be reasonably interpreted to refer to activities the applicant undertook while on her feet. There is no evidence that the applicant did anything unusual while off work, except perhaps for deer hunting, which would have involved a limited period of exposure on an annual basis. It is not credible that the applicant's nonindustrial ambulation and injury were causative, but that her industrial ambulation and injury were not causative. Dr. Grace's opinion of bilateral occupational knee injury is credible.

The date of injury for the applicant's occupational knee injuries is her last day of work on April 30, 2003. As noted by the administrative law judge, there is no medical support for temporary disability until Dr. Grace's imposition of a restriction on July 22, 2003. Dr. Grace credibly opined that the applicant did not reach a full healing plateau until February 16, 2005, and was therefore entitled to temporary total disability between July 22, 2003 and February 16, 2005. However, as of February 1, 2005, the applicant had begun approved vocational retraining. She is entitled to temporary total disability up to and including the first 80 weeks of such training, together with reimbursement for her travel expenses, pursuant to Wis. Stat. § § 102.43(5) and 102.61. The parties stipulated to the fact that there had been prior payment of temporary total disability in the amount of $4,721.76.

On April 14, 2004, the Department of Vocational Rehabilitation notified the applicant that she was eligible for vocational retraining, but at that time there were insufficient resources to serve her. The applicant thereafter secured the services of a private rehabilitation counselor, Carole Givens, who counseled the applicant and developed a retraining plan for Healthcare Information Technology. Pursuant to Wis. Stat. § 102.61(1m)(c), the respondents are liable for Ms. Givens' services in the amount of $354.00. Pursuant to the same statute, respondents are also liable for the tuition for the computer software courses the applicant took in accordance with Ms. Givens' retraining plan totaling $455.50.

Dr. Grace assessed 50 percent permanent partial disability at each knee, which is the minimum award for a total knee replacement, pursuant to Wis. Admin. Code ch. DWD 80.32(4). Pursuant to Wis. Stat. § 102.53(4), a 20 percent increase for the second permanent disability is also due, resulting in a total of 467.5 weeks of permanent partial disability.

The administrative law judge chose February 25, 2005, the last day of the applicant's computer software training course, as the date from which permanent partial disability should accrue. However, he made the accrual date subject to change if the applicant received approved training after that date, and thereby became entitled to additional temporary disability. Rather than attempt to calculate and order payment of exact figures due, without knowing if such calculations are based on the correct accrual date, the commission will direct the applicant to apprise the respondents and the department of whether or not retraining continued after February 25, 2005. Assuming that it did, the applicant shall apprise the respondents and the department of the exact dates of such retraining. If respondents do not dispute such information within 15 days of the applicant's submission of it, the department shall calculate and order paid the temporary disability and permanent partial disability awards in accordance with such information, and consistent with the commission's findings.

Reasonably required medical expenses are due as set forth in the Interlocutory Order paragraph of this decision.

Jurisdiction will be reserved with respect to the possibility of additional disability, medical expense, and/or retraining expense.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, respondents shall pay to the applicant temporary total disability for the period of July 22, 2003 through February 25, 2005, the amount of Twenty-two thousand two hundred fifty-four dollars and twenty-four cents ($22,254.24) (this amount takes into account the previous payment of Four thousand seven hundred twenty-one dollars and seventy-six cents ($4,721.76)); to applicant's attorney, John Edmondson, as his fee against the aforementioned temporary total disability award, the amount of Six thousand seven hundred forty-four dollars ($6,744.00); to Blue Cross Blue Shield the sum of Forty-seven thousand four hundred twenty-four dollars and thirty-one cents ($47,424.31); to Wisconsin Electrical the sum of Six thousand two hundred ninety-five dollars and forty-five cents ($6,295.45); to Bellin Anesthesia Associates the sum of Two thousand three hundred forty-five dollars ($2,345.00); to Bellin Health the sum of Two hundred five dollars and eighty-two cents ($205.82); to Cerebral Palsy, Inc. the sum of One hundred seventy dollars and four cents ($170.04); to Green Bay Orthopedics the sum of Seven thousand three hundred fourteen dollars ($7,314.00); to the applicant as reimbursement for medical treatment and mileage expense, as well as vocational training and mileage expense, the sum of Two thousand five hundred fifty-two dollars and nineteen cents ($2,552.19); and to Carole Givens for vocational counseling the sum of Three hundred fifty-four dollars ($354.00).

Respondents are also liable for any additional temporary disability due for the first 80 weeks of vocational training, and for the 467.5 weeks of permanent partial disability, to be calculated and ordered paid by the department in accordance with the above findings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed June 2, 2006
vanlaro . wpr : 185 : 8  ND § 3.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

cc:
Attorney John B. Edmondson
Attorney Roland C. Cafaro


Appealed to Circuit Court. Affirmed,  February 5, 2007.  Appealed to the Court of Appeals.  Affirmed, unpublished per curiam decision, October 10, 2007.

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