RANDALL ADAMOWICZ, Applicant

DAIMLERCHRYSLER CORPORATION, Employer

DAIMLERCHRYSLER CORPORATION, Insurer

The applicant filed a petition for commission review alleging error in the administrative law judge's findings and order dated October 26, 2006. At issue is whether the administrative law judge appropriately entered a final order in this matter or whether the order should have been interlocutory as to future medical expense and disability issues.

The commission has reviewed the entire record in this matter and hereby affirms in part and modifies in part the findings and order of the administrative law judge. The commission makes the following:

Add the following to the last sentence of the administrative law judge's findings of fact:

Jurisdiction is reserved as to future medical expenses as well possible future disability issues.

Delete the administrative law judge's order and substitute therefor all except the first sentence of the commission's interlocutory order set forth below.

NOW, THEREFORE, this

The findings and order of the administrative law judge, are affirmed in part and modified in part in accordance with the above findings. Within 30 days from the date of the commission's order the respondent's self insurer shall pay to the applicant in compensation the sum of Twenty thousand four hundred forty-nine dollars and forty-nine cents ($20,449.49); to Attorney Daniel J. Kelley as attorney's fees the sum of Five thousand two hundred ninety-one dollars and fifty-seven cents ($5,291.57); to Attorney Daniel J. Kelley as reimbursement for costs the sum of Seven hundred sixteen dollars and seventy-seven cents ($716.77); to Post Rehabilitation the sum of One thousand one hundred twenty dollars ($1,120.00); to the applicant as reimbursement for medical expenses the sum of One hundred seventy-two dollars and forty-six cents ($172.46). Pursuant to Wis. Stat. § 102.30(7) the employer self-insured shall reimburse Humana in the amount of Eleven thousand six hundred eighty-six dollars and eighty-three cents ($11,686.83).

Jurisdiction is reserved as to future medical expenses as well as possible future disability.

Dated and mailed April 20, 2007
adamora : 175 : 9   � 8.33

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The applicant asserts in his petition for commission review the administrative law judge should have entered an interlocutory order as to future medical expense and disability issues. The commission agrees. The applicant asserted in his petition for commission review that it cannot be definitely stated the applicant will not incur additional disability in the future as a result of his work injuries, at least as it pertains to his September 6, 2002 right knee injury and September 25, 2002 left knee injury. The applicant points to the January 27, 2005 office note of Dr. Main discussing a surgical procedure involving a lateral release with anteromedialization of the tibial tubercle. The latter procedure has not been completed. The applicant states that with any degenerative knee condition there is always a risk that a total knee replacement may become necessary in the future, and accordingly, periods of additional disability are entirely possible and therefore an interlocutory order is appropriate.

Interlocutory orders are authorized by Wis. Stat. § 102.18(1)((b) which provides that pending a final determination of a controversy before it, the department may in its discretion and after hearing make interlocutory findings, orders and awards. In general, an interlocutory order to permit future disability and medical expense awards is appropriate when it may not be definitely determined that the injured worker will not sustain additional periods of disability with respect to that injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956). The employer cites the case of Lisney v. LIRC, 171 Wis. 2d 499, 508, for the proposition that one of the principle objectives of the Worker's Compensation Act is to provide a tribunal with disputes between employer and employee in regard to compensation which may be settled promptly, cheaply and summarily. However, the Wisconsin Supreme Court also noted in a separate discussion in the Lisney case that the level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992).

When the words "in its discretion" were added to the sentence from Wis. Stat. § 102.18(1)(b), the department included an explanatory note to its annotated version of the Worker's Compensation Act stating:

This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate. DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27.

The evidence indicates the applicant has suffered both a left knee and right knee injury, leading to the need for arthroscopic surgery in the left knee. The applicant has preexisting degenerative arthritis in both knees, however the law of the case established the applicant's work injuries in September 2002 aggravated, accelerated and precipitated the preexisting condition beyond its normal progression, leading to the onset of knee pain and the need for surgery. The applicant credibly testified to his ongoing knee pain, especially on the left, from September 2002 to the date of surgery in March 2005, and thereafter. It is clear from the record that Dr. Main has not ruled out possible future surgery for the applicant, although he has not followed through with any current recommendations for further surgery. However, concrete medical proof is not strictly necessary to reserve jurisdiction. It is a discretionary decision that may even be based on evidence regarded as inadequate.

On the one hand, a decision maker has the discretion to issue a final order citing perhaps the absence of medical proof as at least part of its rationale as happened in the commission's decision in Zentgraf v. Access Industries, Inc., Worker's Compensation Claim No. 1997-011500 (August 30, 2001). However, a decision maker also has the discretion to retain jurisdiction in the absence of "adequate" medical proof (assuming there is something to support the factual inference in which the reservation and jurisdiction is based).

In our current case, the applicant has a long history of continuous knee pain and need for surgery, as well as ongoing injections both before and after surgery to alleviate swelling and knee pain. Dr. Main's notes on January 27, 2005 state that he had previously discussed arthroscopic lateral release with an anteromedialization of the tibial tubercle as a salvage procedure, and the applicant would like to try this, but he is not ready for the anteromedialization and he just wants the arthroscopy and the lateral release. The applicant had gone ahead with the lateral release in March 2005, and clearly the anteromedialization procedure is still available and contemplated. Given the applicant's ongoing knee complaints and need for treatment and injections more than six months after his lateral release surgery in March 2005, and given the possibility of future surgery, and the long history of knee complaints following the applicant's work injuries in September 2005, the commission finds that an interlocutory order is appropriate as to future medical expenses and possible future disability, including temporary disability and permanent disability issues.

cc:
Attorney Daniel J. Kelley
Attorney Joseph Berger
Attorney Thomas M. Rohe

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