SANDRA MACK, Applicant

OPEN PANTRY FOOD MARTS, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

Open Pantry Food Marts and Society Insurance (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 9, 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 conceded bilateral knee injuries occurring in the work incident of March 2, 2006.

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

The applicant continued to have bilateral knee pain and continued to work for the employer. She was a part-time employee with the employer, working there about 20 hours per week, and also working 40-50 hours per week at her own printing business. The applicant sought medical treatment with Dr. James Davis on May 16, 2006. She waited that long because she hoped her knees would heal on their own.

Dr. Davis took a history of the work incident, and recorded the applicant's complaints of bilateral patellar pain (right worse than left), discomfort and restriction in range of motion, and knee swelling by the day's end. He diagnosed "chondromalacia patella" and "contusion of the knees." He began conservative treatment that eventually included injections, but they did not help. MRI's of both knees were performed on September 25, 2006, and the left knee was described as showing mild aspiration of the posterior horn medial meniscus without sign of frank tear; mild tricompartment degeneration; bone contusion medial aspect of the tibial plateau; and localized marked degeneration of the posterior aspect of the medial femoral condyle. The right knee showed patellar bone contusion and mild tricompartment degeneration. Dr. Davis referred the applicant for consultation to an orthopedic surgeon, Dr. Bindu Bamrah.

Dr. Bamrah examined the applicant on October 23, 2006, and noted that she had bilateral knee pain, right worse than left. He diagnosed "Right knee pain with contusion and possible meniscal tear." He recommended physical therapy and indicated: "I have also discussed possibly undergoing a diagnostic arthroscopy of the right knee." In a follow-up letter to Dr. Davis, Dr. Bamrah indicated he could not rule out a possible meniscal tear in the right knee, and that he had discussed with the applicant the possible need for a diagnostic arthroscopy of that knee, but wanted to see how she progressed in physical therapy.

Dr. Davis completed a WKC-16-B dated March 12, 2007, in which he indicated there had been direct causation, assessed 5 percent permanent partial disability, and indicated that he expected future treatment would be necessary.

At the insurance carrier's request, Dr. Timothy O'Brien, an orthopedic surgeon, examined the applicant and submitted a report dated December 6, 2006. He opined that the applicant sustained bilateral anterior knee contusions in the work incident, but that these contusions would have healed within six weeks after the incident, without permanency. He further opined that treatment and complaints subsequent to that six-week period should be considered as having been due to preexisting degenerative conditions, or as the result of "other episodes or injuries." Dr. O'Brien performed another examination on January 22, 2008, and reiterated his previous opinions, adding that he believed the September 2006 MRI showed only preexisting bilateral patellofemoral chondromalacia.

On an unspecified dated subsequent to the work-related fall, the applicant tripped over bags of salt in the employer's store and again fell on her knees, but not as hard as she fell on March 2, 2006. She filled out an accident report for that incident, but indicated: "It didn't really make any difference because they hurt so bad already."

The applicant had no knee symptoms prior to the work incident, which resulted in substantial trauma to both knees and the onset of persistent bilateral knee symptoms. Dr. Davis credibly diagnosed traumatic chondromalacia of the patellas caused by the work incident, and respondents are found liable for the treatment expenses incurred up to the date of hearing. Dr. Bamrah's review of the right knee MRI led him to conclude that there "may be" a meniscal tear, but he did not offer a direct opinion regarding causation of such possible meniscal tear. Both Dr. Davis and Dr. Bamrah credibly indicated additional medical treatment may be necessary. The commission rejects Dr. O'Brien's opinion that the applicant's bilateral patellar contusions healed completely and without need for future treatment within six weeks from the date of the work incident. The applicant's treatment records and the credible opinions of her physicians demonstrate that this is simply not what occurred.

Dr. Davis's assessment of 5 percent permanent partial disability is inferred to be an assessment of 2-1/2 percent at each knee, which amounts to 10.63 weeks of compensation at each knee, at the applicable rate of $115 per week. The permanent partial disability award for each knee therefore amounts to $1,222.45, less a 20 percent attorney's fee. The administrative law judge's finding that this permanency assessment was premature is unsupported by any medical opinion.

The administrative law judge's broad, discretionary finding that prospective liability accrues to the respondents for the proposed diagnostic surgery, and for such medical treatment as Dr. Davis and Dr. Bamrah recommend, is set aside. The applicant may certainly choose to undergo diagnostic right knee surgery, but neither Dr. Bamrah nor Dr. Davis specifically opined that such surgery was required as a result of the work incident. If Dr. Bamrah performs the surgery, he may find a meniscal tear or other pathology that he may causally link to the work incident. This could result in claims for additional medical expense, temporary disability, and permanent partial disability. In such case, respondents would have the option of accepting Dr. Bamrah's opinion, or of seeking an opinion from another physician. At this point all this is speculative. It is clear from the opinions of Dr. Davis and Dr. Bamrah that future medical treatment may be necessary. Accordingly, the 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 One thousand nine hundred fifty-five dollars and ninety-two cents ($1,955.92); to applicant's attorney, Dan A. Riegleman, fees in the amount of Four hundred eighty-eight dollars and ninety-eight cents ($488.98); to Sussex Family Practice the sum of Six hundred fifteen dollars ($615.00); to Fortis Insurance as reimbursement for payment of non-industrial medical expense the sum of Two hundred sixty-five dollars ($265.00); and to the applicant as reimbursement for payment of medical expense the sum of One thousand seventy-eight dollars and thirty-eight cents ($1,078.38).

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

Dated and mailed December 29, 2008
macksa . wrr : 185 : 9 ND § 5.46

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission's partial reversal of the administrative law judge's findings was based on analysis of the written medical opinions. It did not include any disagreement with the administrative law judge's determinations concerning the credibility of the applicant, who was the only witness at the hearing.

cc: Attorney Dan A. Riegleman
Attorney James G. Nowakowski

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