STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JON A TAYLOR, Applicant

DIVINE SAVIOR HOSPITAL & NURSING
HOME, Employer

GREENWICH INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-021498


In April 2008, the applicant filed a hearing application alleging a left knee injury on June 2, 2006. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 16, 2008. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $652.18. The respondent also conceded a work injury on June 2, 2006, for which it paid temporary disability compensation in the sum of $2,116.76 for the period from June 27 to July 21, 2006. At issue was the nature and extent of disability beyond that conceded, as well as the respondent's liability for medical treatment expense.

On October 20, 2008, the ALJ issued his decision dismissing the application with prejudice. The applicant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning
witness credibility and demeanor. Based on its review, the commission makes the following:

[Note: these findings were made by decision dated July 16, 2009, including modifications by the commission on July 29, 2009, pursuant to Wis. Stat.  102.18(4)(b).]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born in 1979. He has a history of knee problems dating back to his teen years. In June 1995, when the applicant would have been 16, he was evaluated by Richard A. Lemon, M.D., for right knee pain. Dr. Lemon diagnosed a meniscal tear and performed a right knee arthroscopy and medial meniscectomy on July 28, 1995.

The applicant saw Dr. Lemon again in December 1995 for left knee complaints. The doctor diagnosed a left knee tear and did a left knee arthroscopy and medial meniscectomy later that month. In July 1997, the applicant saw Dr. Lemon again for left knee problems and underwent a left knee arthroscopy on July 1, 1997.

The applicant had another knee injury in early 2002. At this time, he was working as an ambulance driver for Curtis Ambulance. He returned to Dr. Lemon. The applicant testified that Dr. Lemon diagnosed a sprain, and that he prescribed physical therapy to which the applicant's knee responded well. Dr. Lemon's report reflects the applicant had a left knee injury which responded well to physical therapy.

The applicant then began working for the employer as an EMT/ER tech on July 8, 2002. He testified that Dr. Lemon had issued no work restrictions, and in fact sent the employer a letter saying he could do his duties to 100 percent. The applicant had no knee symptoms when he started his job, and passed his pre-employment physical.

After starting for the employer, but before the injury at issue here, the applicant reinjured his left knee while working. He described this incident--which occurred when he slipped in a ditch while trying to get to a nonresponsive person at an accident scene--as a "tweak." Work restrictions were briefly imposed.

The applicant also slipped and fell on his right knee (which is not at issue here) in March 2006 on an icy parking lot. He underwent a meniscectomy for this injury.

The injury now at issue occurred on June 2, 2006. On that day, the applicant responded with two other paramedics to a call at a home regarding a child suffering a diabetic seizure. The child recovered from the seizure, but as he was leaving the home, the applicant stepped into a hole in the floor with his left foot. The hole, about a foot deep, was covered by a mat near the front door. The applicant grabbed the door knob, but still twisted his left knee and fell forward on to the porch in the process.

As he fell, the applicant felt a crunch in his knee. He felt pain, leading him to believe he had torn the cartilage in his knee as he had had similar pain with other incidents in the past. His coworkers helped him up, and they returned to work.

A note for June 5, 2006, documents treatment with Antonio Escobedo-Morse, M.D. Exhibit L. The doctor's history reports the injury in which the applicant fell in the hole, with the applicant thereafter having clicking, cramping and locking in his knee. He reported difficulty standing for more than 2 or 3 hours, with increased pain and swelling by the end of a shift. Dr. Escobedo-Morse ordered an MRI, on a question of cartilage and/or meniscal damage. He limited the applicant to standing no more than an hour at a time.

The MRI was done the next day. The interpreting radiologist noted it showed something that could be either an extensive meniscal tear, or a manifestation of a postoperative partial meniscectomy.

When the applicant returned to Dr. Escobedo-Morse, he was still complaining of worsening knee pain, which he testified radiated down to his feet. The doctor's assessment was

Left knee effusion. Question meniscal tear. Has some postoperative changes on MRI, so it is difficult to assess at this particular time.

Dr. Escebedo-Morse reported that the applicant was to follow up with orthopedics.

The applicant saw Dr. Lemon on June 22, 2006. His note for that date states:

Jon had another on-the-job injury on June 9, 2006, where he twisted his left nee. He fell down, and struck his left knee also. He was seen by his local physician Dr. Escobedo, and an MRI was obtained. The MRI showed a bone contusion as well as evidence of his previous medial meniscectomy and arthritis.

The doctor recommended aggressive physical therapy, and felt it unlikely the applicant would need surgery.

A month later, on July 20, 2006, Dr. Lemon noted the applicant had made very little progress with physical therapy, but that he had no effusion, no laxity and a near full range of motion. He did, however, complain of a lot of pain.

When the applicant returned to Dr. Lemon on August 10, 2006, he told the doctor he had persistent knee pain and was discouraged by his lack of progress. On physical examination, though, Dr. Lemon thought that the applicant's left knee looked great. Dr. Lemon's impression was healing left knee bone contusion, and he told the applicant "these do take time to heal and his progress has been reasonable." He continued the applicant on light duty.

When Dr. Lemon saw the applicant six weeks later, on September 27, 2006, the doctor reported the applicant had continued to improve, that he had no effusion and a full range of motion, and no tenderness. He released the applicant to full duty, with no work restrictions and no permanent partial disability.

However, the applicant testified, credibly, that his left knee was still swollen in September 2006, that he still had pain, and that he still had limitation in motion, but that "Dr. Lemon's expression was live with it." Transcript, page 22. The applicant testified, too, that Dr. Lemon also told him that the only surgical option was a total knee replacement, but that he was too young for that. Transcript, page 23.

The applicant was dissatisfied with this advice. Still, he did not seek immediate treatment because he hoped it was a bone bruise and it would get better. Transcript, page 23-24. He also was taking pain pills for a gall bladder condition (he had a gall bladder surgery in November 2006), which masked his knee pain temporarily. Transcript, page 24. After contacting the employer, the applicant resumed treatment with Dr. Escobedo in January 2007.

Dr. Escobedo's note for January 31, 2007 states:

Patient is a 27-year old male that presents to clinic complaining of left knee pain. Patient states that his knee stiffens up significantly, especially when he is at work and sitting for greater than 2 hours at a time.

The doctor's assessment was:

Left knee osteoarthritis, status post partial meniscectomy many years ago. Patient desires conservative treatment at this particular time, but he wants to resolve his pain issue.

Dr. Escobedo referred the applicant to Paul Kornaus, M.D., a sports medicine specialist.

On February 8, 2007, shortly before he saw Dr. Kornaus, the applicant underwent an MRI which showed rather prominent osteoarthritis-type changes predominately medial knee joint clearly consistent with his exam. In his February 12, 2007 report, Dr. Kornaus stated he had been having persisting symptoms of pain without overt evidence for instability or internal derangement persisting despite pervious management. The doctor did an injection, and asked the applicant to return the next week.

The applicant returned to Dr. Kornaus on February 26, 2007, when he told the doctor he had significantly improved after the injections. The doctor noted that a surgical evaluation was planned, but that meanwhile a low impact rehab plan would be pursued.

The applicant saw a surgeon, Patrick Simon, M.D., on February 28, 2007. He noted the applicant's prior procedures on both knees, but that "six months ago he injured his knee falling though a floor on a job and has pain ever since."

Dr. Simon diagnosed likely arthritis, left knee, degenerative in nature in a fairly young man. He did not think that surgery would make the applicant much better, and that cortisone shots--a Synvisc injection--would help more than surgery.

When the applicant returned to Dr. Kornaus, he complained that conservative treatment was not helping, and Dr. Kornaus ordered another MRI. The doctor suggested that the applicant may have aggravated his meniscus in the work injury. Given his symptoms, the doctor suggested the applicant may, indeed, be a surgical candidate.

The MRI was done in July 2007. The radiologist doing the MRI noted findings that could be a possible meniscus tear, but might also be related to the medial meniscectomy. He also noted findings that could be accelerated osteoarthritis, but could also be an overuse phenomenon or from a traumatic bone bruise.

The MRI led Dr. Kornaus to recommend another surgical consultation. Dr. Simon decided that, because the conservative treatment had not helped, and given his persistent pain, an arthroscopic evaluation might be an appropriate next step. Thus, on August 29, 2007, Dr. Simon did a left knee arthroscopy with arthroscopic medial chondroplasty based on a pre-operative diagnosis of left knee medial compartment osteoarthritis with possible loose body. During the surgery, the doctor debrided loose cartilage and smoothed the edges of the remaining articular cartilage. Exhibit I, page 30.

The applicant had continuing severe pain after the surgery, leading Dr. Simon to wonder about possible reflex sympathetic dystrophy. Later notes indicate that a brace provided significant symptomatic relief. Apparently, the effect of the brace made the applicant interested in having surgery, a unicompartmental knee replacement. Dr. Simon went ahead with the procedure on November 14, 2007. Follow up notes indicate the applicant did well with the procedure, and Dr. Simon released him to light duty on December 19, 2007. On January 16, 2008, Dr. Simon released the applicant to return to work without restriction. Exhibit N, last page.

The parties provide expert medical opinion on the question of the nature and extent of disability beyond that conceded.

Dr. Simon submitted a practitioner's report on form WKC-16-B dated February 5, 2008, which lists the accidental event or work exposure to which the applicant attributed his condition as "fell through the floor while on a job and injured his left knee." As to diagnosis, the doctor noted "doing well [status/post] left knee unicompartmental knee replacement." Regarding causation, Dr. Simon marked affirmatively both the box on the form report opining that the work event precipitated, aggravated, and accelerated his pre-existing degenerative condition beyond normal progression, and the box opinining that an appreciable period of workplace exposure was at least a material contributory causative factor in the onset or progression of his condition.

Dr. Simon opined the applicant could return to work without restrictions on January 17, 2008 (the day after his then most recent examination). Dr. Simon went on to estimate permanent partial disability at 45 percent for the partial prosthesis, but indicated it was possible he would ultimately need a revision to the knee replacement surgery.

Dr. Escobedo provided a report dated July 9, 2007 (exhibit B), indicating he had last treated the applicant on June 16, 2006, and that while he had suffered a work injury, he had no permanent partial disability, and could return to work as permitted by Dr. Lemon in 2006. Dr. Escobedo's report, however, indicates that he declined to give a prognosis, at least, because he had not recently seen the applicant.

Dr. Kornaus also completed a practitioner's report dated July 19, 2007 (exhibit C), which does not actually give an opinion on causation, and indicates that evaluation of permanent disability or work restrictions could not be done because, at the time, the applicant was still in treatment.

The respondent relies on the report of Dr. Lemon, dated August 20, 2008 (exhibit 1). Dr. Lemon, again, was among the earliest treating doctors. He offers this discussion of the applicant's left knee condition:

...Mr. Taylor is predisposed to left knee problems because of his obesity. Mr. Taylor suffered a left knee medial meniscus tear and subsequent medial meniscectomy at a young age. I performed a left knee arthroscopy and medial meniscectomy on December 28, 1995 and a repeat left knee arthroscopy and medial meniscectomy on July 1, 1997. Mr. Taylor's subsequent left knee arthritis is directly related to the aging process, his obesity, and his 2 knee meniscectomy surgeries in 1995 and 1997. Mr. Taylor's left knee arthritis progressed through the years because of these factors unrelated to Mr. Taylor's employment at Divine Savior Hospital and Nursing Home and unrelated to the on-the-job injury of June 2, 2006.

Mr. Taylor's on-the-job injury of June 2, 2006 directly caused a left knee bone bruise. This diagnosis is clearly documented on MRI. Mr. Taylor reached an end of healing from his left knee bone bruise of June 2, 2006 as of September 27, 2006, with no permanent partial disability and no permanent work restrictions. The vast majority of bone bruises heal uneventfully in 3 months with no permanent partial disability.

Mr. Taylor subsequently was treated for ongoing left knee problems because of his osteoarthritis of the left knee. Mr. Taylor's left knee Synvisc injections were performed for osteoarthritis. Mr. Taylor's left knee arthroscopy of August 29, 2007 was performed for osteoarthritis. Mr. Taylor's left knee unicompartmental knee replacement of November 14, 2007 was performed for osteoarthritis. This ongoing left knee treatment is unrelated to Mr. Taylor's employment at Divine Savior Hospital and Nursing Home and unrelated to his on-the-job injury of June 2, 2006.

The respondent also offers a report of William McDevitt, M.D., who did a record review on May 29, 2007 (before the knee replacement surgery). He opined:

Based upon review of the medical records, it is my opinion that this patient's diagnosis is degenerative arthritis of the left knee, with a strain to the knee that occurred on 6/2/2006. In my opinion the patient reached an end of healing from the knee strain on September 27, 2006 without permanent disability. I think he was treated appropriately and would agree that surgery was certainly not indicated. When the patient returned for treatment in February 2007 that was because of his pre-existing condition of osteoarthritis, and this treatment and the MRI scan would not be related in any way to the June 2, 2006 injury, which reached an end of healing on September 27, 2007.

2. Discussion and award.

The commission consulted with the presiding ALJ concerning the applicant's credibility and demeanor at the hearing. He reported that he found the applicant's testimony credible in general. The ALJ specifically stated that he found credible the applicant's testimony that he was not having left knee symptoms shortly before the June 2, 2006 accident, that he continued to have left knee symptoms after Dr. Lemon released him in September 2006, and that the doctor told him at that time that he would have to live with the residual symptoms.

The commission notes, too, that the applicant had been working as a paramedic despite his prior injuries, leading to the inference that he was not prone to exaggerating disability or inventing symptoms. While Dr. Lemon's early treatment notes following the June 2, 2006 work injury mention the applicant's subjective complaints, his September 27, 2006 report says nothing about what the applicant actually told him about how his knee felt on that day.

It is true that the applicant did not treat for his knee from September 2006 to January 2007, despite testifying to continuing pain and dissatisfaction with Dr. Lemon's September 2006 advice. However, the applicant also had a gall bladder surgery in November 2006, and it is reasonable to conclude he gave that condition priority. Further, Dr. Kornaus noted in his February 12, 2007 report, that the applicant had been having persisting symptoms of knee pain despite previous management. Treating surgeon Simon's first note from late February 2007 refers to the work incident as a source of pain. The commission notes, too, that the report from the August 2007 arthroscopy showed fraying in the meniscus and loose cartilage in the applicant's left knee.

Given this record, and the ALJ's statements during the commission's credibility conference with him, the commission finds Dr. Simon's opinion regarding the cause, nature, and extent of the applicant's disability to be most credible. The commission is persuaded that the applicant's left knee was asymptomatic immediately before the injury on June 2, 2006, but was continuously disabling thereafter, through the time of the unicompartmental knee replacement done by Dr. Simon in November 2007. The commission cannot credit the opinions of Drs. Lemon and McDevitt that the applicant recovered from the injury without disability within four months, or that or that his resumption of treatment in January 2007 was for his preexisting condition only and "not related in any way" to the June 2, 2006 injury. Rather, the commission concludes that the applicant's June 2, 2006 work injury precipitated, aggravated and accelerated the applicant's preexisting degenerative condition in his left knee beyond its normal progression, and led to his continuing disability and need for treatment including the surgeries performed by Dr. Simon in August 2007 and November 2007.

The applicant claims temporary disability for various periods from the date of injury to January 17, 2007, as outlined in exhibit G. At the hearing, the respondent had three objections to the calculations done in exhibit G (aside from the fundamental issue of whether the applicant's injury caused the disability, resolved above in the applicant's favor).

First, the respondent contended it had paid temporary disability compensation in November 2007 for which the applicant's calculations do not account. The commission examined the department's claim payment information record for this claim, and it shows only the $2,116.76 payment of temporary disability reflected in exhibit G. While the commission's order should not be construed to make the respondent pay any amounts twice, it sees no basis for concluding that the respondent has paid more than $2,116.76.

Second, the respondent asserted the applicant's temporary partial disability should be reduced by wages earned in other employment. It submits wages documenting employment in two other jobs, Running Inc., and REM Wisconsin. See exhibits 3 and 4. Exhibit 3 itself and the applicant's testimony establish that the applicant had already been working for Running Inc. when the June 2, 2006 injury occurred. The applicant's testimony further indicates that the work injury prevented him from continuing at Running Inc., and so, after the injury, he obtained the job at REM. Transcript, page 32. Indeed, exhibit 4 shows a date of hire with REM on June 21, 2007.

Wisconsin Statute § 102.43(2) sets out the formula for paying temporary partial disability when an injury causes a partial wage loss. The formula requires a comparison between an injured worker's actual wage loss and the worker's average weekly wage. Wages from other employment held when the injury occurred may not be considered in determining actual wage loss, subject to an exception not applicable here. Wisconsin Stat. § 102.42(6)(a). However, wages from the employment in which a worker is injured, and wages from work obtained after the injury, are considered in calculating temporary partial disability. Wisconsin Stat. § 102.42(6)(c).

The commission appreciates that the applicant characterizes the employment at REM Wisconsin, obtained after the injury, as a kind of substitute for his job at Running Inc., that he had obtained before the injury. Still, the applicant obtained his job at REM Wisconsin after the work injury. In this case, then, the wages earned with both the named employer and REM Wisconsin shall be considered in calculating the applicant's temporary disability compensation, while wages from Running Inc., shall not be considered.

In its third objection to the applicant's calculation of temporary partial disability, the respondent objected that exhibit G includes a period of temporary disability occurring after the applicant had been released to full duty. The applicant's attorney acknowledged this, and agreed that the payment of temporary disability should end on January 17, 2007, when Dr. Simon opined the applicant could return to full duty.

After reviewing the record, the commission concludes the applicant's claim for temporary disability is supported, subject to the foregoing. The calculation of temporary disability is set out in an attachment to this order. The commission essentially followed the calculations set out in exhibit G, but included a consideration of the period from July 1 to July 16, 2007 (which resulted in no additional compensation), added in the wages earned at REM Wisconsin, and eliminated consideration of the week ending January 24, 2007. In sum, the applicant is entitled to $11,603.43 in temporary disability compensation, from which the prior payment of temporary disability in the amount of $2,116.76 is deducted, leaving a net amount in temporary disability due of $9,486.67.

The applicant also claims permanent partial disability at 50 percent compared to loss of the leg at the knee. This is the sum of the 45 percent estimated by Dr. Simon for the applicant's partial knee prosthesis done on November 14, 2007, and the five percent minimum for the procedure done on August 29, 2007, which the applicant characterizes as a meniscectomy. The administrative code specifies a minimum loss of use rating of 45 percent for a partial knee prosthesis, and an minimum loss of use rating of five percent for a mensiscectomy. Wis. Admin. Code § DWD 80.34(7).

However, the operative note for the August 29, 2007 procedure does not characterize the procedure as a meniscectomy, but as a "left knee arthroscopy with arthroscopic medial chondroplasty." A "large previous meniscal tear with some loss of cartilage" is noted in the post-operative diagnosis, and some "loose frayed edges of the remnant(1) of the medical meniscus" were also noted, but there is notation that a meniscectomy was actually performed. Neither an arthroscopy nor an arthroscopic chondroplasty are procedures for which a minimum is specified in the administrative code, nor has any medical expert rated disability based on the August 29, 2007 procedure. Accordingly, this case does not raise the question of cumulative awards for multiple procedures specified in Wis. Admin. Code sec. DWD 80.34, discussed in DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1. In short, there is no basis in the record or the administrative code for concluding the applicant's permanent partial disability exceeds the 45 percent at the knee as estimated by Dr. Simon.

On the other hand, the applicant did have prior left knee meniscectomies in December 1995 and June 1997 for which Dr. Simon does not account and apparently was unaware. Rather, his practitioner's reports at exhibits A and D expressly indicate the applicant had no prior disability. The commission concludes a deduction of ten percent--again, the minimum under the code for that procedure--is appropriate.(2) The applicant is therefore entitled to permanent partial disability compensation at 35 percent at the left knee, which is the 45 percent compared to loss of the leg at the knee as estimated by Dr. Simon less 10 percent pre-existing disability for the meniscectomies performed in December 1995 and June 1997.

By application of the schedule at Wis. Stat. ? 102.52(11), an award for a 40 percent loss of a leg at the knee works out to 148.75 weeks of permanent partial disability compensation at the rate of $252 per week (the maximum for injuries between April 1 through December 31, 2006), totaling $37,485. Following the department's convention of paying permanent partial disability in weeks when no temporary disability is paid,(3) as of August 11, 2009, 120.6667 weeks of permanent partial disability totaling $30,408 has accrued; 28.0833 weeks totaling $7,077 remain unaccrued.

The applicant agreed to the advancement of attorney fees set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded, yielding a future value fee of $9,394.33 {0.20 times ($9,486.67 plus $37,485)}. However, because not all of the permanent partial disability award has accrued, the fee is subject to an interest credit of $19.60, yielding a present value fee of $9,374.73. That amount, plus costs of $363.09 shall be paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $31,552.65, which equals the sum of the temporary disability ($9,486.67), plus accrued permanent partial disability ($30,408.00) awarded, less the fees thereon ($7,978.93), and less costs ($363.09). The amount remaining to be paid to the applicant as it accrues after August 11, 2009 is $5,661.60, which equals the unaccrued permanent partial disability award ($7,077.00), less fees thereon ($1,415.40). The remaining amount shall be paid in monthly installments of $1,092.00, beginning on September 11, 2009.

The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury for which the respondent is liable. These expenses are documented in the second amended medical treatment statement and supplemental medical treatment statement, intended to replace Exhibits E and F, submitted on stipulation of the parties after the hearing in an October 2, 2008 letter from the applicant's attorney. Based on those documents, the following amounts are due under Wis. Stat. § 102.42 and 102.30(7): to Divine Savior Healthcare, $287.10 in treatment expense; to Beaver Dam Orthopedic Clinic, $745.88 in treatment expense; to Peggy A. Wesson, M.D., $1,170 in treatment expense; to EMPI, $639.04 in treatment expense; to Alliance, the sum of $47,197.31 and $2,462.15 ($49,659.46) in reimbursement of medical expense paid; and to Fiserve, $65.66 in reimbursement of medical expense paid. In addition, the applicant incurred the sum of $385.29(4) and $393.29 ($778.58) in out-of-pocket medical expenses and has documented medical mileage expenses in the amount of $591.63.

Based on the report of Dr. Simon, the applicant will likely require treatment for his injury in the future. Accordingly, this order shall be left interlocutory to permit further orders and awards for additional disability compensation and medical expense that may arise after the date of hearing.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Jon A. Taylor, the sum of Thirty-one thousand five hundred fifty-two dollars and sixty-five cents ($31,552.65) in disability compensation, Seven hundred seventy-eight dollars and fifty-eight cents ($778.58) in out-of-pocket medical expense, and Five hundred ninety-one dollars and sixty-three cents ($591.63) in medical mileage expense.
2. To the applicant's attorney, Mark A. Seifert, the sum of Nine thousand three hundred seventy-four dollars and seventy-three cents ($9,374.73) in fees and Three hundred sixty-three dollars and nine cents ($363.09) in costs.
3. To Divine Savior Healthcare, Two hundred eighty-seven dollars and ten cents ($287.10) in medical treatment expense.
4. To Beaver Dam Orthopedic Clinic, Seven hundred forty-five dollars and eighty-eight cents ($745.88) in medical treatment expense.
5. To Peggy A. Wesson, M.D., One thousand one hundred seventy dollars and no cents ($1,170.00) in medical treatment expense.
6. To EMPI, Six hundred thirty-nine dollars and four cents ($639.04) in medical treatment expense.
7. To Alliance, Forty-nine thousand six hundred fifty-nine dollars and forty-six cents ($49,659.46) in reimbursement of medical expense paid.
8. To Fiserve, Sixty-five dollars and sixty-six cents ($65.66) in reimbursement of medical expense paid.

Beginning on September 11, 2009, and continuing on the 11th day of each month thereafter, the employer and its insurer shall pay the applicant One thousand ninety-two dollars and no cents ($1,092.00) per month, until the additional amount of Five thousand six hundred sixty-one dollars and sixty cents ($5,661.60) has been paid.

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

Dated and mailed July 16, 2009 (modified July 29, 2006)
taylorj . wrr : 101 : 1 ND ? 5.18

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION
[issued with original decision dated July 16, 2009]

As discussed in the body of this decision, the commission conferred with the presiding ALJ concerning witness credibility and demeanor. The commission accepted the ALJ's credibility and demeanor impressions of the applicant, the only witness who testified at the hearing. It did not reverse the ALJ on a different view of witness credibility, but on a different view of which medical expert gave the more credible opinion. See: Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).


MEMORANDUM OPINION
(issued with modifications made by order dated July 29, 2009]

Both parties have requested the commission to modify the permanent disability awarded in its July 16, 2009 order in this case. The commission's order awarded permanent partial disability at 40 percent compared to loss of the leg at the knee, derived from the administrative code minimum for a partial prosthesis (45 percent) minus five percent for a prior left knee meniscectomy done in December 1995. The insurer now asks us to modify our decision to award only 35 percent as the commission's order does not take into account another pre-injury left knee meniscectomy in June 1997.

In response, the applicant asks the commission to increase its award to 45 percent, on the theory that the applicant's doctor, Dr. Simon, intended his rating to be in addition to whatever disability existed at the time of the injury. On this point, the applicant points out a letter from Dr. Simon to Dr. Kornaus on February 28, 2007, in which Dr. Simon referred to two prior arthroscopic surgeries on each knee. However, in his practitioner's reports at exhibits A and D, Dr. Simon expressly stated that the applicant had no prior disability In exhibit A, Dr. Simon stated his 45 percent rating was for "a partial 'prosthesis,' unicompartmental replacement per DWD" and he listed the elements of disability as "specific to partial prosthesis per DWD protocol." The commission thus must infer that when he made his 45 percent rating, Dr. Simon meant only to express the minimum rating for a partial prosthesis, and was not stating an amount in addition to his pre-existing disability from the prior meniscectomies. The commission therefore declines to modify its order as the applicant requested.

The commission does agree with the respondent's assertion that it is entitled to a five percent deduction for each of the pre-injury left knee meniscectomies. An employer is entitled to reduction in its permanent disability liability from a work injury for existing disability pursuant to administrative rule and case law. The administrative code provides for "appropriate reduction for preexisting disability," Wis. Admin. Code § DWD 80.32(1). In Green Bay Soap Co. v. ILHR Department, 87 Wis. 2d, 561, 566, 275 N.W.2d 190 (1979), the supreme court held that an employer should not have to pay compensation for pre-existing disability that can be separated from the effects of a subsequent work injury.

Both the 1995 and 1997 left knee meniscectomies are documented in the medical record. The code minimum for a partial prosthesis at the knee is 45 percent, and the minimum for a meniscectomy is five percent. Wis. Admin. Code § DWD 80.32(7). The commission accordingly has modified its order to award permanent partial disability at 35 percent compared to loss of the leg at the knee.

Finally, the respondent objects to the commission's order requiring the respondent to reimburse Wausau in the amount of $275.17. The respondent asserts there is no documentation Wausau made such a payment. The commission's order was based on the amounts shown in the final row on page 2 of the Second Amended Medical Treatment Statement submitted posthearing by the applicant with no objection from the respondent. However, since the applicant does not dispute the respondent's current assertion that Wausau did not in fact pay that amount, the commission has amended its order to strike the reimbursement.

cc: Attorney Mark A. Siefert
Attorney Karl Vandehey

 

[A chart detailing the temporary partial disability liability based on wages earned during the healing period has been omitted from the online version of this decision.]



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Footnotes:

(1)( Back ) The commission infers this is a remnant remaining after the left knee medial meniscectomy done by Dr. Lemon in December 1995.

(2)( Back ) See Levi Thunder v. Red Cedar Steel Erectors, WC claim no. 1999-047240 (LIRC, June 23, 2005); Lenegar v. Pepsi Cola General Bottlers, WC claim no. 2005-007181 (LIRC, April 9, 2007); and Green Bay Soap Co. v. ILHR Department, 87 Wis. 2d, 561, 566, 275 N.W.2d 190 (1979) (holding that an employer should not have to pay compensation for pre-existing disability that can be separated from the effects of a subsequent work injury). In DaimlerChrysler v. LIRC, 2007 WI 15, ?? 43, 44, 299 Wis. 2d 1, the supreme court approved the commission's practice of awarding cumulative minimum PPD ratings for surgeries specified in the administrative code, even absent supporting estimates from medical experts.

(3)( Back ) See Wis. Stat. ? 102.32(6)(e).

(4)( Back ) The commission assumes this figure, which is given as the total amount paid by the applicant in the second amended medical treatment statement, is correct, even though a statement documents only a single $95 expense.

 


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