JAMES SLAGOSKI, Applicant

WRJ TRANSPORT, Employer

WEST BEND MUTUAL INS CO, 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 November 29, 2007
slagosj . wsd : 101 : 1 ND § 5.6

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant injured his left knee while working on October 18, 2004. The employer and its insurer (collectively, the respondent) conceded the occurrence of an injury, and that the applicant tore his meniscus in the injury. The respondent thus has paid some temporary disability benefits associated with the injury and permanent partial disability at ten percent at the knee.

The applicant claims he also tore his anterior cruciate ligament (ACL) in the incident, and seeks additional disability and treatment expense associated with the asserted ACL injury. The respondent contends that the ACL problem is solely pre-existing, and was neither directly caused, nor aggravated beyond normal progression, by the work injury that caused the conceded meniscus tear. It also argues that there is no medical support for paying the renewed period of temporary total disability associated with the ACL tear from January 15, 2007 to the date of hearing and ongoing.

However, like the ALJ, the commission credits Dr. Seipel's opinion that the applicant injured his ACL in the October 18, 2004 injury. The commission acknowledges the absence of the typical edema and bruising, but Dr. Rolnick indicates that bone bruising and edema may not always show up on MRI following a traumatic tear, only that they usually do. Dr. Rolnick goes on to opine that the applicant must have a previous knee injury or internal derangement. However, the applicant credibly denied a prior injury and states his complaints began with the work injury. Indeed, there are no records of treatment for a prior ACL instability or injury.

Regarding temporary disability, the respondent argues that because Dr. Seipel rated permanent disability for the ACL tear in February 2005, the respondent's liability for temporary disability should end at that point. This argument would be more persuasive if the applicant were claiming additional temporary disability beginning in February 2005. However, he is instead claiming a renewed period of temporary disability from January 15, 2007, that started with the off-duty re-injury to the weakened left knee while removing snow from his driveway.(1)

The supreme court has held that the commission cannot order payment of temporary total disability after a worker's condition has stabilized even though he or she may be awaiting surgery to treat the work injury, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994). Dr. Seipel, like the doctors in Larsen Co. and GTC Auto, was willing to rate permanency (here, for the ACL injury) before the surgery was done. However, with the January 2007 re-injury, the applicant's condition was no longer stable, so he re-entered a healing period. Certainly, the notes of Dr. Seipel and Dr. Montemurro provide sufficient support for the finding that the applicant again became temporarily disabled from work in January 2007. The ALJ correctly awarded temporary total disability from January 15, 2007 to the date of the hearing.

NOTE: While the ALJ's findings referring to liability for "ongoing temporary total disability benefits," he did not include similar language in his award. An award for the payment of temporary disability may not be made to continue indefinitely into the future.(2) Of course, employers and their insurers are liable under the workers compensation law for compensation due to disability from a work injury, and they are potentially liable for penalties if they stop payment without reason.

Wisconsin Stat. § 102.18(1)(b) does permit an order directing an employer or insurer to pay for future treatment expense that may be necessary to cure and relieve the effect of the work injury. Certainly, the applicant has established that the proposed ACL repair surgery is a reasonable treatment that is necessary due to the work injury. Thus, the ALJ's prospective order for future treatment expense is warranted.

cc:
Attorney Mark P. McGillis
Attorney Timothy J. Schumann

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(1)( Back ) For a general discussion of the compensability of off-duty reinjuries, see Todd E. Lange v. LIRC, 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App. 1997).

(2)( Back ) Levy v. Industrial Commission, 234 Wis. 670, 675 (1940). See also McDuffy v. Kennedy Hahn TV & Appliance, WC Claim No. 2000-030626 (LIRC, October 8, 2002) and Irvine v. UPS, WC Claim No. 1998-021734 (LIRC, March 6, 2003).

uploaded 2007/12/03