CAUTIONARY NOTE: The commission's decision in this case (Braun)
was characterized as erroneous in a subsequent commission decision in
Klettke v. American Innvotech, WC Claim No. 1989-041491 (LIRC, June 30,
2010).
ROBERT J BRAUN, Applicant
FROEDTERT MALT, Employer
ZURICH AMERICAN INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 13, 2007. Froedtert Malt/Lesaffre International Corporation and Zurich American Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties.
At issue are the nature and extent of disability and liability for medical expense attributable to two conceded work injuries. The first injury was to the applicant's right knee and occurred on October 1, 2001, and the second injury was to the applicant's low back and occurred on June 18, 2002. Compensation was previously paid for each work injury, but the applicant claims additional compensation for each of them.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:
The applicant, whose birth date is September 20, 1944, was employed as a millwright and machine repairman for the employer. He sustained a conceded right knee injury on October 1, 2001, and a conceded low back injury on June 18, 2002.
The right knee injury resulted in arthroscopic repair of the applicant's torn medial and lateral meniscus, as well as a torn anterior cruciate ligament. This surgery was performed by Dr. Jeffrey Shovers on October 2, 2001, and Dr. Shovers assessed 20 percent permanent partial disability at the knee. However, the insurance carrier paid 7.5 percent permanent partial disability based on a report from Dr. David Mellencamp, who believed the ACL tear was preexisting. Dr. Shovers released the applicant to full duty without restriction on December 24, 2001. In December 2004, the applicant returned to Dr. Shovers with increased right knee symptoms. On April 11, 2005, Dr. Shovers performed a total right knee replacement. However, Dr. Shovers opined that the degenerative changes in the applicant's knee were present when he treated him in 2001, and he could not attribute those degenerative changes to the work injury.
On August 24, 2005, the applicant's attorney referred the applicant to Dr. N. M. Reddy for a medical assessment. Dr. Reddy diagnosed severe right knee arthritis with history of arthroscopy and total knee replacement. Dr. Reddy believed it was highly likely that the applicant's knee condition continued to deteriorate on an aging basis, and further worsened after he sustained his back injury in 2002. Most notably, Dr. Reddy also opined that the work injury to the applicant's knee accelerated his arthritis in that joint, leading to the knee replacement surgery.
The applicant was lifting an old refrigerator at work when he injured his low back on June 18, 2002. He initially continued to work and receive conservative treatment from Dr. Daniel Suberviola. The applicant stopped working on January 8, 2003, and on January 9, 2003, Dr. Suberviola performed a microdiskectomy at L4-5. This surgery did not provide permanent relief from the applicant's symptoms. On April 28, 2004, the applicant was referred to Dr. James Hollowell, and on June 22, 2004, Dr. Hollowell performed a two-level fusion at L4 through S1 that included insertion of hardware. The applicant eventually had a relatively good result from this surgery, and on July 20, 2005, Dr. Hollowell assessed an end to healing with 25 percent permanent partial disability of the back (he attributed 5 percent to the 2003 surgery and 20 percent to the 2004 surgery). Dr. Hollowell gave a permanent 35-pound lifting restriction.
At the insurer's request, Dr. Christopher Noonan examined the applicant and submitted a report dated July 31, 2003. He opined that there was spondylolisthesis at L5-S1 that was preexisting and not work-related. No opinion was submitted from Dr. Noonan subsequent to the 2004 fusion surgery.
The applicant began receiving social security disability income (SSDI) in July 2003, and also retired and receives a pension. He has not looked for new work and expressed reluctance to do so. Respondents also point out that the day after Dr. Hollowell gave his restriction, July 21, 2005, they contacted the applicant and offered him assistance in job placement for work within his restriction (no such work was available with the employer). The applicant indicated he was not interested in job placement assistance.
The applicant's vocational expert, Daniel Kuemmel, opined that considering Dr. Reddy's restrictions the applicant was permanently and totally disabled. He did not give an opinion based on Dr. Hollowell's restriction. Respondents' vocational expert, Gregory Wisniewski, opined that based on Dr. Reddy's restrictions the applicant sustained a 60 to 65 percent loss of earning capacity. Based on Dr. Hollowell's restriction, Wisniewski assessed the loss at 40 to 45 percent.
Right Knee Injury
In consultation with the commission, the administrative law judge indicated that he dismissed the applicant's claim for his right knee replacement based on Dr. Shovers' clinic note of December 1, 2004, in which Dr. Shovers wrote:
"Degenerative joint disease, right knee. He already has a 10% disability of his knee. The degenerative changes in his knee were present at the time of his industrial injury and I really cannot make them due to the industrial injury."
However, this statement merely recounts the medical fact that the applicant had degenerative changes in his knee when he injured it at work on October 1, 2001. Dr. Shovers offers no discernible opinion with regard to the contribution the work-related medial and collateral meniscus tears did or did not make to the necessity for a total knee replacement. Even if Dr. Shovers' opinion were to be read to indicate that he believed there were no additional degenerative changes to the applicant's knee attributable to the effects of the October 2000 knee injury, that opinion would not be credible. Dr. Reddy credibly opined that the October 2001 work injury accelerated the degenerative process that ultimately led to a right knee replacement. It is certainly credible that removal of medial and collateral meniscal cartilage would accelerate a preexisting degenerative knee condition beyond its normal progression. The commission therefore finds that the applicant's right knee replacement surgery was a compensable consequence of the work injury that occurred on October 1, 2001.
The record before the commission is silent with respect to the specific dates of temporary disability claimed, if any, relative to the right knee replacement surgery. This may be because the applicant was claiming permanent total disability effective January 8, 2003. In any case, temporary total disability was conceded and paid to the applicant as a result of his low back injury from January 8, 2003 to July 20, 2005. On June 22, 2005, Dr. Shovers wrote in his clinic note that the applicant was "well on the way" from his knee replacement surgery, and that the applicant's range of knee motion was "already satisfactory." Given this note, and the fact that there is no opinion from Dr. Shovers indicating a later date for a healing plateau, it is found that the applicant reached a healing plateau from the right knee replacement surgery on June 22, 2005. Accordingly, no additional temporary total disability is due as a result of the knee replacement surgery.
The minimum permanent partial disability assessment for a total knee replacement is 50 percent (see Wis. Admin. Code ch. DWD 80.32(4)). Dr. Reddy's assessment was 40 percent, and therefore the minimum is applicable. The 7.5 percent permanent partial disability the applicant previously received for his right knee disability will be subtracted, leaving a net permanent partial disability award of 42.5 percent.(1) This translates to 180.63 weeks of compensation at the applicable rate of $184.00 per week.
Although medical expense was listed as an issue on the hearing notice, there was no discussion of that issue at the hearing, and no submission of claimed medical expense. Accordingly, no medical expense will be awarded herein. However, as noted below, this decision will be interlocutory with respect to certain calculations. Therefore, the commission will exercise its discretion to also leave the decision interlocutory with respect to the issue of medical expense attributable to the right knee replacement surgery.
Low Back Injury
The commission is in agreement with the administrative law judge's ultimate finding regarding the conceded low back injury of June 18, 2002. The applicant has had a relatively good result from his low back injury. As the primary treating physician and surgeon for the applicant's back, Dr. Hollowell was in the best position to assess the proper lifting restriction of 35 pounds. Dr. Hollowell did not comment regarding repetitive bending, stooping, and twisting, which Dr. Reddy indicated should be avoided. The commission agrees with Dr. Reddy that an individual who has undergone a two-level fusion at L4-S1 should avoid these repetitive movements, and therefore accepts this part of Dr. Reddy's physical restriction assessment.
Neither of the vocational experts analyzed the applicant's loss of earning capacity based on acceptance of Dr. Hollowell's 35-pound lifting restriction, together with acceptance of Dr. Reddy's restrictions on bending, stooping, and twisting. However, their analyses were generally helpful to the commission in assessing the applicant's loss of earning capacity. The applicant was 60 years old when released by Dr. Hollowell on July 20, 2005. He has performed general labor, general factory production work, factory maintenance mechanic work which included learning to read mechanical blueprints and use of fine measuring devices, and millwright and machine maintenance/repair work with the employer. He was earning $21.72 per hour when last employed by the employer. As noted by Gregory Wismiewski, the applicant is fully capable of working jobs such as night watchman, cashier, retail clerk, and light-duty inspection. He is not physically restricted to the point that he cannot engage in the full-time, light-duty employment, and he has not presented a prima facie case for permanent total disability.
The applicant is receiving a pension and SSDI, and in his petition he argues that it would not make sense to jeopardize this income by seeking the relatively low-paying employment available to him. While seeking employment may not be a desirable option from his personal point of view, the question to be addressed is the effect his low back injury has had on his earning capacity. There is no question that the injury has had a significant impact on his wage earning ability, because he can no longer perform the duties of a millwright or a machine maintenance mechanic. On the other hand, he has expressed no interest in obtaining new employment in any capacity, and has rejected the insurance carrier's offer to assist him with rehabilitation and/or job placement services. This testimony leads to the inference that he is currently uninterested in seeking employment.
After weighing all these facts and considering the arguments presented by the parties, the commission agreed with the administrative law judge that an accurate assessment of the applicant's loss of earning capacity attributable to the June 2000 low back injury is 40 percent. This amounts to 400 weeks of compensation at the applicable rate of $212.00 per week.
The record before the commission does not provide the detailed facts necessary to compute the exact amounts due the applicant and his attorney in accordance with the commission's findings. There have been prior payments of compensation including additional payments made subsequent to the hearing date, and the SSDI provision (Wis. Stat. § 102.44(5)) is applicable. Accordingly, the matter will be remanded to the department for calculation of the amounts due in accordance with the commission's findings, subject to opportunity for the parties to submit additional evidence concerning prior payments and relevant SSDI information. As noted above, the issue of medical expense for the right knee replacement surgery also remains open. In order to make this an appealable order, the commission will award $400.00 in compensation for permanent partial disability to the applicant, as well as $100.00 towards fees and costs to the applicant's attorney. The applicant's attorney is ultimately due a 20 percent fee plus $2,220.50 in costs.
NOW, THEREFORE, this
Jurisdiction is reserved in accordance with the above findings.
Dated and mailed September 19, 2007
braunro . wpr : 185 : 8 ND § 5.31
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Edward W. Stewart
Attorney Dennis H. Wicht
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