WILLIAM D MCROBERTS, Applicant

BAUER BUILT INC, Employer

AMERICAN CASUALTY CO OF READING PA, 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, except that it makes the following modifications:

1. Delete the third through seventh (last) sentences of the tenth paragraph of the ALJ's Findings of Fact, and substitute as new paragraphs:

"As noted above, Dr. Orth estimated permanent partial disability at five percent compared to loss at the knee. However, the minimum loss of use rating following a meniscectomy procedure under Wis. Admin. Code § DWD 80.32(4) is five percent. Because the applicant underwent that procedure twice, the minimum award in his case would be 10 percent.(1)

"Wisconsin Admin. Code § DWD 80.32(1) further provides that 'findings of additional disabling elements shall result in an estimate higher than the minimum.' In this case, Dr. Bodeau estimated permanent partial disability at 20 percent compared to amputation at the knee, explaining in a note dated September 28, 2006, (exhibit D):

'Permanent partial disability is assessed in consideration of Wisconsin Administrative Code DWD 80.32. A WKC-16 form is completed on the patient's behalf. Disability is assessed at 20% at the knee compared to amputation. This includes 5% for the September 14, 2005, partial medical meniscectomy performed by Dr. James Haemmerle plus additional permanent partial disability for the second medial meniscectomy performed by Dr. Israel on February 14, 2006. A 10% disability is assessed over and above the mandatory surgical ratings for greater than expected pain, weakness, loss of strength, etc.'

"Dr. Bodeau's rationale for an estimate of 20 percent, or 10 percent above the minimum, is supported by the applicant's credible testimony. After the first surgery, the applicant testified, his knee pain got worse, and just kept getting more and more sore. After the second surgery, the applicant testified, his knee condition became worse still.

"Accordingly, the applicant is entitled to permanent partial disability at 20 percent compared to loss of the leg at the knee, or 85 weeks at the weekly rate of $242 (the statutory maximum for injuries in 2005), totaling $20,570.00, all of which is accrued.

"The applicant agreed to the payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the amount of temporary total disability and permanent partial disability awarded under this order, or $6,058.48 {0.20 times ($20,570.00 plus $9,722.42). That amount, plus costs of $498.51, shall be paid to the applicant's attorney within 30 days.

"The record indicates that the applicant owes child support at a rate of $35.08 per week, payable to WI SCTF. Exhibit G. Because this order awards compensation for 114.1 weeks, the total withheld for child support and paid directly to WI SCTF shall be $4,002.63 (114.1 weeks times 35.08 per week). See Wis. Stat. § 102.27(2) and Brad Miller v. Roberts Roofing & Siding, WC claim no. 2001-046371 (LIRC, July 9, 2007).

"The amount to be paid to the applicant for disability compensation within 30 days is $19,732.79, which equals the total amount awarded for temporary total and permanent partial disability ($30,292.42), less attorney fees ($6,058.48), costs ($498.51) and child support ($4,002.63).".

2. Delete the twelfth (last) paragraph of the ALJ's Findings of Fact, and substitute:

"In his July 28, 2006 treatment note, Dr. Bodeau stated that additional medical care, including surgical intervention, was likely. Accordingly, this order shall be left interlocutory to permit the awards for additional compensation for disability and medical expense as may arise in the future.".

3. Delete the ALJ's Interlocutory Order, and substitute the second and third paragraphs of the Commission's Interlocutory Order as set out below.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge, as modified, are affirmed.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Nineteen thousand seven hundred thirty-two dollars and seventy-nine cents ($19,732.79) in disability compensation.
2. To the applicant's attorney the sum of Six thousand fifty-eight dollars and forty-eight cents ($6,058.48) in fees and Four hundred ninety-eight dollars and fifty-one cents ($498.51) in costs.
3. To WI SCTF, (Box 74400 Milwaukee, WI 53274-0400) the sum of Four thousand two dollars and sixty-three cents ($4,002.63) under Wis. Stat. § 102.27(2).
4. To Red Cedar Clinic, the sum of Fifteen thousand four dollars and twenty-five cents ($15,004.25) in medical treatment expense.
5. To Midelfort Clinic, the sum of Ten thousand three hundred five dollars and five cents ($10,305.05) in medical treatment expense.
6. To Luther Hospital, the sum of Eight thousand eighty-two dollars and fifty cents ($8,082.50) in medical treatment expense.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed March 31, 2009
mcrober . wmd : 101 : 6 ND 5.18

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He told the commission he found the applicant to be quite credible, not only in describing how his injury happened, but also in describing his left knee symptoms both before and after his injury. The ALJ added that while he paid only five percent in permanent disability compensation, he left his order interlocutory to permit a higher award.

After reviewing the record, the commission is satisfied that the applicant has established that, as of the date of the hearing, his permanent partial disability in his left knee was 20 percent compared to loss of the leg at the knee. The commission left its order interlocutory, however, to permit future awards for additional disability should the applicant's condition from the work injury worsen or require additional treatment.(2)

In increasing the permanent disability award to Dr. Bodeau's 20 percent estimate, the commission did consider the applicant's testimony that he had been assigned permanent partial disability at 7 or 8 percent to his left knee back in the late 1980s. The administrative code provides that appropriate deductions should be made for pre-existing disability. Wisconsin Admin. Code § DWD 80.32(1). When he began working for the employer in 2005, the applicant testified, his left knee was stable, but sore most of the time. The applicant stated there was always some degree of pain in his knee, but it did not stop him from pursuing normal activities like playing softball, basketball, and skiing.

While Dr. Bodeau does not mention the applicant's prior left knee problems in explaining his estimate, he clearly was aware of them. He completed both a practitioner's report on form WKC-16-B dated May 15, 2006 (exhibit C) and a medical report on form WKC-16 dated September 28, 2006 (exhibit D, last page). Both refer to "medical records" on the question of previous disability, and Dr. Bodeau's note of December 29, 2005 (exhibit D) reports that the applicant's prior history was significant for knee problems. Further, as set out above, the applicant testified, credibly according to the ALJ, that his disability and pain in his left knee increased substantially after his work injury and surgeries. Accordingly, the commission is persuaded that Dr. Bodeau's permanent partial disability estimate of 20 percent was made in addition to any pre-existing disability and reflects due consideration to the pre-injury condition of the applicant's left knee.

cc: Attorney Jeffrey Klemp
Attorney Mark Miller

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(1)( Back ) The question of whether the administrative code minimums for repeat surgeries are cumulative was answered affirmatively and definitively by the supreme court in DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1. There, the supreme court affirmed the commission's decision that awarded permanent disability compensation based on the code minimum rating for each surgical procedure done, even though the second surgery was a repeat or redo procedure. Specifically, the court held that:

The certified question before this court is whether the LIRC may interpret Wis. Admin. Code DWD 80.32(4) to award a cumulative minimum PPD for multiple ligament repair procedures, where the resulting award is higher than the highest medical estimate of PPD in evidence. We answer this question in the affirmative. We hold that DWD 80.32(4) may be interpreted to award a cumulative minimum PPD for multiple ligament repair procedures, even though the award by the LIRC is higher than the highest medical estimate in the record. We further hold that Wis. Stat. 102.18(1)(d) does not prohibit determinations in excess of the highest medical assessment in evidence, but rather creates a presumption of reasonableness for PPD awards that fall within the prescribed range. [Emphasis supplied.]

DaimlerChrysler, 299 Wis. 2d 1, 44.

(2)( Back ) In general, an interlocutory--as opposed to final--order to permit future disability and medical expense awards is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973).

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