KORY CARR, Applicant
MARATHON CHEESE CORPORATION, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
Marathon Cheese Corporation and Employers Insurance Company of Wausau (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 8, 2008. The applicant 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 the conceded work injury of May 4, 2004.
The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant's primary treating physician, Dr. James P. Sutherland, opined that he would assess no permanent disability to the applicant's knee or ankle; but he would assess 20 percent permanent partial disability to the right calf for loss of musculature, altered sensation, and scarring. Dr. Sutherland deferred to the treating podiatrist, Dr. Joel Tikalsky, for a foot rating. Dr. Tikalsky assessed 10 percent for the applicant's injury-related plantar fasciitis.
At respondents' request, Dr. Ellen O'Brien examined the applicant on April 29, 2006, and submitted a report dated May 10, 2006. She did not assess any disability for the scarring, gave 1 percent permanent partial disability for the plantar fasciitis, 1 percent for chronic calcaneal pain, and 2 percent for sensory loss over the skin graft on the applicant's calf. Thus, Dr. O'Brien assessed a total of 4 percent permanent partial disability at the right ankle.
The administrative law judge (ALJ) accepted the permanency assessments given by Dr. Sutherland and Dr. Tikalsky. She interpreted Dr. Sutherland's assessment of 20 percent at the calf to be a 20 percent loss at the knee. She also awarded medical and mileage expenses which respondents have indicated were previously paid. The applicant has not disputed that these medical and mileage expenses were previously paid, and it is therefore accepted that they were. Respondents point out that Dr. Sutherland stated there was no permanent disability in the applicant's knee or ankle, and that his 20 percent rating for the calf includes allowance for cosmetic deformity (scarring). Respondents also note that Dr. Sutherland indicated the applicant's calf "functionally works quite well for him." Finally, they also contest the ALJ's interpretation of the 20 percent calf assessment as being 20 percent at the knee, instead of at the ankle.
It is the location of the disability or impairment, not the location of the injury, that determines whether and how the scheduled disability ratings apply. Vande Zande v. ILHR Department, 70 Wis. 2d 1086, 1093, 236 N.W.2d 255 (1975). The applicant's injury has caused chronic plantar fasciitis. He also lost muscle mass in his calf, which to some extent will affect the strength and function of his leg over his lifetime. Respondents point to the fact that he is currently functioning quite well from a physical standpoint, worked in a paper mill subsequent to the injury, and even continues to play basketball. However, the applicant is quite young. Despite his good recovery, he does have a permanent functional loss of strength in his calf which youth will not always help to ameliorate.
Plantar fasciitis is a painful condition and it affects the applicant on a chronic basis. The commission finds Dr. Tikalsky's assessment of 10 percent permanent partial disability at the right ankle to be credible.
Dr. Sutherland's 20 percent "at the calf" is problematical, because it does not specify a joint at which Dr. Sutherland believed the permanency should be assessed, and because it includes an allowance for scarring. Based on the location of the impairment, the commission infers that it affects the strength of the entire lower leg, and therefore is most properly assessed at the knee. However, Dr. Sutherland's inclusion of scarring, which would be properly considered in a disfigurement claim, would leave one to guess at what part of his assessment addresses functional disability. Dr. O'Brien's opinion is deficient in another way, in that she makes an allowance for sensory loss in the calf, but no allowance for loss of strength. In accordance with the 5 percent presumption of Wis. Stat. 102.18 (1)(d),(1) the commission finds that the applicant's calf injury has resulted in 7 percent permanent partial disability at the right knee, which is within 5 percent of Dr. O'Brien's assessment for the calf injury. The commission finds this to be an appropriate assessment considering the degree of loss of strength and sensory loss.
Beginning with the disability rated at 10 percent for the right ankle, this amounts to 25 weeks of permanent partial disability. Pursuant to Wis. Admin. Code ch. DWD 80.50(1),(2) this "more distal" disability must be deducted from the scheduled weeks for the "more proximal" disability at the right knee, before applying the 7 percent disability percentage at the knee. The scheduled 425 weeks for the applicant's knee disability is therefore reduced by 25 weeks to 400 weeks, and when multiplied by 7 percent yields 28 weeks of permanent partial disability.
Additionally, the multiple injury factor found in Wis. Stat. § 102.53(4), requires a 20 percent increase of the lesser disability at the ankle, or an additional 5 weeks.
The total permanent partial disability award is therefore 58 weeks at the applicable rate of $232 per week, for a total of $13,456, all accrued. Respondents previously conceded and paid permanent partial disability in the amount of $2,320, and credit will be given for such payment. A 20 percent attorney's fee together with $152.92 in costs shall be subtracted from the unconceded award.
The applicant may require future medical treatment and/or sustain additional disability. Also, this proceeding was limited to the issues of nature and extent of disability and liability for accrued medical expense. Other issues could arise from the applicant's injury. For all these reasons this order will be interlocutory.
Now, therefore, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant the sum of Eight thousand seven hundred fifty-five dollars and eighty-eight cents ($8,755.88); and to applicant's attorney, Robert J. Gray, fees in the amount of Two thousand two hundred twenty-seven dollars and twenty cents ($2,227.20), and costs in the amount of One hundred fifty-two dollars and ninety-two cents ($152.92).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed November 13, 2008
carrko . wmd : 185 : 9 ND 5.15, 5.25
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission's partial reversal of the administrative law judge's decision was based on analysis of the written medical opinions and the credible testimony given by the applicant. The commission had no disagreement with the administrative law judge regarding her credibility assessment of the applicant, who was the only witness at the hearing.
cc:
Attorney Robert J. Gray
Attorney David A. Piehler
Appealed to Circuit Court. Affirmed July 7, 2009.
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