BARBARA DUMESIC, Applicant
CARMAX, Employer
TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer
In November 2007, the applicant filed an application for hearing seeking compensation for a left knee injury based on a September 10, 2007 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on October 15, 2008. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $462.42. At issue was whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of an incidental to that employment, the nature and extent of disability from any such injury, and the respondent's liability for medical expenses.
On February 24, 2009, the ALJ issued his decision in this matter. The respondent filed a timely petition for review.
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 makes the following:
1. Facts.
The applicant was born in 1948. She began working for the employer in February 2007. Before starting work for the employer, she testified, she never had any problems with her left knee. Between the time she started working for the employer and the date of injury, however, the record does indicate the applicant had had some aching in the left knee.
On September 10, 2007, the applicant testified, she hurt her left knee walking up a ramp. She testified her knee "just gave out or buckled, and I couldn't go any further." She experienced sudden, severe pain.
Exhibit 1, a picture of the ramp, shows a floor surface itself made of tile that slants upward on an incline. The applicant put an "x" on the picture where she felt the buckling sensation; it appears to be near the top of the ramp. The pictures make it appear as if the ramp rose 2 feet in 16 feet; this roughly jibes with how the applicant described the ramp to her doctors.
There is a mat on the ramp, but the applicant testified the mat was not wrinkled, and did not cause to misstep or otherwise contribute to her knee problem. She apparently was not walking simply straight up the ramp, but diagonally up and across it from the right side to the left side.
The applicant's testimony, particularly on cross examination, makes it clear the applicant did not trip or fall, or twist her knee before she experienced the left knee pain. The applicant apparently bent over to grab her ankle immediately on experiencing the knee pain. She did not, however, fall.
The applicant testified that she had pain for the remainder of her shift, and while at home that night. She sought treatment the next day, September 11, 2007, when she saw David A. Fetter, M.D., with a presenting complaint of pain in the left side of the knee and some swelling.
The applicant completed a history when she saw the doctor, which contains this response to the inquiry "Did accident happen at work?"
Not Sure - Been having problems with pain
The history also indicates the applicant was concerned about a blood clot. However, there is also a notation on the history referring to walking up a ramp when she heard a noise and felt something, apparently in her left knee. The typewritten note from Dr. Fetter documenting his treatment on September 11, 2007 says:
...called our office today requesting to be seen on an urgent-type basis. She is a sales associate to CarMax in Wisconsin who reports being at work yesterday when she was walking up a wide ramp when she felt pain and a cracking sensation about her left knee. She did not actually fall she reports. Her pain has persisted, and she has noticed some slight swelling. Because of the pain, she requested to be seen today.... She states that over the past year she has noticed occasional aching about her knee, but her complaint currently is new-type symptom she reports.
On examination, the doctor noted pain over the medial joint line with flexion-rotation, and minimal knee effusion. The doctor's diagnostic impression was pain in the left knee. He wanted to rule out internal derangement including a mensical tear, and though he doubted it as a diagnosis, he wanted to rule out a deep vein thrombosis. He provided crutches and a knee immobilizer, and ordered a Doppler study. He took her off work, and asked her to return in a day.
The MRI showed an oblique tear of the posterior horn of the medial meniscus, degenerative arthritis of the medial joint compartment with near full thickness cartilage erosion, a small popliteal cyst, mild chondromalacia patellae, and quadriceps and patellar tendinopathy. No thrombosis was detected in the ultrasound.
The applicant returned to Dr. Fetter, then, the next day when the doctor noted findings consistent with a tear of the medial meniscus. He suggested trying physical therapy, before giving consideration to outpatient arthroscopy if her symptoms persisted.
During physical therapy, the applicant told the therapist, Precefina Geslani, that she had been limping two months earlier due to excessive walking and stair climbing. Exhibit C, September 12, 2007 note of physical therapist, Geslani. However, the applicant also told the therapist she felt a snap or pop while walking up the ramp, and that her knee hurt ever since.
Dr. Fetter released her to sedentary work as of September 15, 2007. In response to a letter from the employer's worker's compensation insurer, Dr. Fetters wrote a letter dated October 9, 2007, stating:
I am again enclosing office consultation note September 11, 2007 and an injury report that Ms. Dumesic completed in our office on September 11, 2007 in regard to the injury she stated she sustained a previous day on September 11, 2007...Based upon a review of the medical file in my office it is felt that Ms. Dumesic's knee condition based upon the history obtained and the information again reviewed, she reported, either was the cause or contributed to her current symptoms of tear of her medial meniscus. The degenerative arthritis noted on the MRI report would have been preexistent finding but may have been aggravated from her reported injury.
On October 15, 2007, Dr. Fetter noted that the applicant wanted to proceed with a left knee arthroscopy. The doctor reiterated his sedentary work restriction on that date. In particular, he said she could stand or walk less than an hour, could occasionally climb stairs, and could do
minimal walking and mostly on ground level. Limit stair climbing and going up and down ramps.
The applicant subsequently saw David L. Becker, M.D, on January 27, 2008, who gives this history:
She was walking up the inside ramp, which she feels is about 16 feet long and may elevate 2-4 feet. As she reached the top, her left leg buckled. It did not give away and allow her to fall, but she did have immediate pain on the medial side of the left knee. The pain increased overnight and the patient sought medical attention. The patient states that she never had "any issues" but had various prior aches and pains and various things....
He noted, too:
With respect to the patient's history, it is certainly consistent with Dr. Fetter's with respect to the injury on 9/10/2007, the patient's history is clear that the injury has resulted in a marked inability to move around in the community. Difficulty doing stairs. Considerable startup pain, all of which she did not have prior to the injury.
The MRI shows a tear on the medial meniscus, but also articular cartilage loss in the medial compartment as well.
It is my feeling that the injury on 9/10, has resulted in persistent pain and a significant decrease in function and is superimposed over a pre-existing osteoarthritis medial compartment in the left knee. With this history and exam, it is my opinion that this would be a work-aggravated degenerative arthritic knee.
The tear appreciated on review of the MRI is of underdetermined age, and I do not think any more important than the degenerative changes on the articular surfaces. It is my medical opinion within a reasonable degree of medical certainly that the patient's injury certainly aggravated a pre-existing arthritis in her left knee.
I have suggested to her that removing the meniscal tissue might improve her knee.
The applicant also saw Karl B. Scheidt, M.D., on April 16, 2008. His diagnostic impression "was internal derangement left and knee pain left -- new, will need arthroscopy." Specifically, he recommended an arthroscopic partial medial meniscectomy and possible chondroplasty and meniscectomy left.
The applicant testified that she underwent a couple of months of physical therapy after the injury, but has never undergone the surgery for insurance reasons. She has remained off work, except for a couple of weeks near the date of hearing when she worked part-time for another employer.
However, the time-of-injury employer offered the applicant work at 36 hours per week at $11.36 per hour on May 8, 2008, doing "transitional employment." Transcript, page 38 and exhibit 2, last four pages. The duties involved would be filing while sitting, tending the children's playroom, and answering phones.
The applicant rejected the offer because in order to go between the office where she would be doing the filing and the children's area, she would have to walk on a ramp (or else go outside the building.) She did not call the employer, however, to see if they could accommodate her desire to avoid using the ramps. Transcript, page 39.
Dr. Becker wrote a letter dated February 13, 2008, to the applicant's lawyer stating that he felt the applicant had a work-related aggravation of an aggravated degenerative arthritic knee. He stated that to a reasonable degree of medical certainty, her injury certainly aggravated a pre-existing arthritis in her knee. He noted he had suggested surgery, but that the surgery would only improve, not cure her problem.
In a March 12, 2008 letter, Dr. Becker stated:
My medical opinion is that the patient, within a reasonable degree of medial certainty, had a work-aggravated condition in her knee superimposed over a pre-existing arthritis.
It is also my opinion that the ramp more likely than not was the cause of the work-aggravated injury.
In addition, Dr. Fetter's October 9, 2007 letter, quoted above, states:
...Based upon a review of the medical file in my office it is felt that Ms. Dumesic's knee conditions based upon the history obtained and the information again reviewed, she reported, either was the cause or contributed to her current symptoms of tear of her medial meniscus. The degenerative arthritis noted on the MRI report would have been preexistent finding but may have been aggravated from her reported injury.
The record also contains a practitioner's report dated November 19, 2007 (exhibit F). The report is apparently from Thomas Grossman, M.D., though it is stamped "Advanced Orthopedic & Sports Injury Center" and includes notes from Dr. Fetter reflecting treatment on September 11, 2007 after an injury sustained at work the prior date. The commission concludes this exhibit is offered to state Dr. Fetter's opinion that the incident while walking up the ramp on September 10, 2007 caused the applicant's disability directly and by precipitation, aggravation, and acceleration of a pre-existing degenerative condition beyond its normal progression.
The respondent relies on the report its examiner, Thomas Grossman, M.D. In his history, he reported that the injury felt like a rubber band snapping in her left knee. He wrote:
The workplace event described does not arise to the level of an injury. Specifically, the examinee indicated that pain began spontaneously while engaged in regular activities. The absence of any descriptor of an injury-type event does not allow me to establish causal linkage between the objective findings of a meniscal tear and significant degenerative changes in the knee and her employment. Rather, I believe that this is a manifestation of an underlying event. Specifically, she did not describe a twist, a fall, and there is no mention of squatting or deep knee bending any place in the records presented for review. It is, therefore, my opinion that during the course of her employment she manifested degenerative changes in the knee. I believe that she developed pain in the knee unrelated to her employment as described.
In response to specific interrogatories, the doctor diagnosed degenerative changes of the left knee and a medial compartment meniscus tear, which he opined was a pre-existing condition. He did allow that anti-inflammatory medication and arthroscopy were reasonable treatments, regardless of causation. He thought that a six month healing period would be reasonable if surgery were pursued.
2. Discussion
The first issue is whether the applicant sustained an injury arising out of her employment with the employer, while performing services growing out of and incidental to that employment. On this issue, the respondent asserts that the applicant has not proven she was injured by work activity as opposed to a force solely personal to her. The respondent's arguments raise the questions posed in a line of cases dealing with idiopathic or unexplained falls.
The claim of an unexplained or idiopathic fall is similar, but not identical to, the situation posed by manifestation or symtpomization of a definitely preexisting
condition of a progressively deteriorating nature during normal exertive
activity.(1) An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work, not due to any hazard or danger of employment, but instead due to a disease, physical disability, or condition personal to the injured worker.
Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). For example, if person with diabetes falls to the floor at work because of an insulin reaction unrelated to work duties and is injured in the fall, the fall may be regarded as idiopathic, or due to a solely personal force, and the injury caused by the fall would not be compensable. Such an accident or fall, even though occurring while a worker is performing services for an employer, does not arise out of employment as is required under Wis. Stat. § 102.03(1)(e). Similarly, an "unexplained fall," which can be attributed to neither an idiopathic fall nor a cause related to employment, is not compensable even if it occurs while the worker is performing services.
Id.
However, this is not really a case of an idiopathic or unexplained fall--or some personal force--causing an injury. The applicant did not fall and there is no claim of an injury from a fall or similar force. Rather, the applicant's knee gave way while she was walking up a ramp at work.
Injuries caused by normal employment effort are compensable. The court has stated:
The fact that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee 'as is' and if he is suffering from a disease predisposing to breakage and an exertion required by the employment causes the breakage at the moment of exertion, the employer is liable under the act.
Brown v. Industrial Commission, 9 Wis. 2d 555, 570 (1960). Subsequently in the case of Lewellyn, the Wisconsin Supreme Court further clarified that the work activity required for a compensable injury need only be "usual" or "normal" in the sense of the exertion of nonemployment life, and effort expended need not be unusual or extraordinary. Id., at 38 Wis. 2d 58 note 3, 61.
In the commission's view, then, the dispositive question is whether the normal exertive activity of walking up the ramp as part of her work duties caused the injury to the applicant's knee. If it did, the injury is compensable. Since there was no fall, and purely personal force, it is unnecessary to address the issue of an unexplained or idiopathic fall or whether the ramp was a zone of danger.
The doctors, to be sure, differ on whether the activity of walking up the ramp precipitated, accelerated, or aggravated the applicant's knee condition beyond normal progression. Treating doctors Becker and Fetter opine that it did, or else that the activity directly caused the injury. Dr. Grossman, on the other hand, sees the injury as a mere symptomization or manifestation of the prior degenerative condition at work, not causally related to the work itself.
On this point, the respondent notes that the applicant had pre-existing osteoarthritis. However, the existence of a pre-existing condition alone does not make the injury noncompensable; a worker may recover compensation where work activity precipitates, aggravates and accelerates a preexisting degenerative condition beyond normal progression. The employer also notes that the applicant told physical therapist Geslani on September 12 that she had been limping two months earlier due to excessive walking and stair climbing. However, she also told Geslani that she heard or felt snap or pop in her knee while walking up the ramp, and that her knee hurt ever since.
The applicant also stated in her self-reported history at Dr. Fetter's office that she was not sure how she was injured. But the doctor's notes from that same day indicate that the applicant felt or heard a cracking sensation and immediate pain while walking up the ramp at work on September 10, 2007, and the report of Dr. Grossman (and the notes of physical therapist Geslani) also mention a sound or sensation with the injury to the knee on September 10, 2007. In addition, the commission notes the findings on the MRI. Like the ALJ, the commission concludes that the work activity of walking up the ramp caused breakage, or at the every least precipitated, aggravated, and accelerated the applicant's degenerative left knee condition beyond its normal progression if that activity did not cause breakage directly. Either way, the injury is compensable.
Dr. Fetter's October 9, 2007 letter states that the "degenerative arthritis noted on the MRI report would have been preexistent finding but may have been aggravated from her reported injury." "May have" does not state an opinion to a reasonable degree of medical probability.(2) However, the commission construes Dr. Fetter's October 9, 2007 letter, read in its entirety, to opine within the requisite degree of medical probability, that the work activity caused the applicant's knee injury. Moreover, Dr. Becker persuasively stated his opinion to the requisite degree of certainty.
The next issue is the nature and extent of disability. The ALJ paid temporary total disability to the date of hearing. The respondent claims that it should not be held liable for temporary total disability given the offer of work it made to the applicant on May 8, 2008. Regarding this issue, the applicant asserts that she remained in a healing period to the date of hearing because she never underwent the proposed surgeries. She cites commission cases holding that an employer may not refuse to pay for treatment for a compensable injury, then point to the worker's unchanging condition thereafter as the endpoint of healing.
In this case, the commission credits Dr. Becker's opinion that surgery would improve the applicant's knee condition. Because surgery would improve her condition, it cannot be said that "there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence." Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). Consequently, the applicant remained in a healing period to the date of hearing. Ibid. See also: Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
As the applicant notes, the commission previously addressed the situation where a respondent refuses to pay for treatment that would help the applicant recover from a work injury in Carole Lee v. Famous Fixtures, WC claim no. 96000857 (LIRC, July 2, 1997). In that case, the commission held that an employer may not refuse to pay for treatment for a compensable work injury, and then simply point to a worker's unchanging condition after that refusal as an endpoint of healing.3(3) The Supreme Court has similarly stated in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 461-62 (1977):
In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose.
Those cases, however, do not address the complicating factor of an offer of work during the healing period. Wisconsin Stat. § 102.43(9) provides:
102.43(9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:
(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.
As the applicant observes, the employer offered no witnesses to prove that its May 8, 2008 job offer was made in good faith. However, the applicant admits receiving the offer and rejecting it. There is no reason to believe the offer was not made in good faith. The applicant refused the offer because she was nervous about ramps. The applicant never contacted the employer to ask if the offer could be reworked to avoid having to walk up ramps.
The commission is satisfied that the work offered was within the restrictions that Dr. Fetter set on October 15, 2007. Dr. Fetter did not totally prohibit walking on ramps in his October 15, 2007 work restrictions; rather, he stated she could engage in only limited walking up ramps. While the job would appear to have involved some walking between work areas, Dr. Fetter, again, did not prohibit walking totally. The main aspects of the job, tending a children's area, filing and answering phones are duties that can be done with minimal walking. Under these circumstances, the commission concludes that the employer made a good faith offer of suitable employment on May 8, 2008, which was within the applicant's restrictions, but which the applicant refused without reasonable cause. Consequently, the applicant's compensation for temporary disability after May 8, 2008, must be calculated in accordance with Wis. Stat. § 102.43(2) and (9).
3. Award.
Under Wis. Stat. § 102.43(2)
If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee's average weekly wage at the time of the injury.
Had the applicant accepted the job offered by the employer on May 8, 2008, she would have earned $408.96 per week (36 hours times $11.36 per hour). Under Wis. Stat. § 102.43(9), then, the applicant's "actual wage loss" equals her average weekly wage ($462.46) less the offered wages ($408.96), or $53.30. The proportion that her "actual wage loss" bears to her average weekly wage is 0.116 ($53.50/$462.46). Multiplying that figure times her temporary total disability rate of $308.31 yields a temporary partial disability rate of $35.67.
From September 11, 2007 (the date of injury) through May 7, 2008, a period of 34 weeks and 2 days, the applicant is entitled to temporary total disability compensation at the weekly rate of $308.31 (two-thirds of the average weekly wage of $462.46), totaling $10,585.20. From May 8, 2008 through October 15, 2008 (the date of the hearing), a period of 22 weeks and five days, the applicant is entitled to temporary partial disability at the weekly rate of $35.67 (as calculated above), totaling $814.47.
The total in temporary disability compensation under this order is $11,399.66. Deducting the amount of $640.36 previously paid by the respondent, the additional amount awarded under this order is $10,759.30. The applicant agreed to the direct payment of an attorney fee from her recovery, calculated under Wis. Stat. § 102.26 as 20 percent of the additional amount awarded, or $2,151.86. That amount, plus costs of $185.36, shall be deducted from the applicant's award and paid to her attorney in 30 days. The remainder, $8,422.36, shall be paid to the applicant within 30 days.
The applicant also incurred reasonable and necessary medical treatment to cure and relieve the effects of her injury as established and documented in exhibit A, which are compensable under Wis. Stat. § 102.42(1). Specifically, the applicant incurred expenses in the amount of: $5,859.30 from Advanced Orthopedic & Sports Injury Center, Ltd., of which Blue Cross/Blue Shield paid $1,438.20, $3,799.60 was adjusted from the bill, and $621.50 remains outstanding; from Gurnee Radiology Center, $443.00, of which Blue Cross/Blue Shield paid $215.00, $228.00 was adjusted from the bill, and nothing remains outstanding; from Kenosha Radiology Center, $1,300, of which Blue Cross/Blue Shield paid $664.60, $635.40 was adjusted from the bill, and nothing remains outstanding; from United Health System, $2,648.99, of which Blue Cross/Blue Shield paid $1,932.22, $662.21 was adjusted from the bill, and $55.56 remains outstanding; from IHC Kenosha Radiology, $117, of which Blue Cross/Blue Shield paid $93.60, $23.40 was adjusted from the bill, and nothing remains outstanding; from Blount Orthopaedic Clinic, Ltd., $272.00, all of which is outstanding; from Karl B. Sheidt, M.D., S.C., $255.00, all of which is outstanding; from Leilane U. Sta Romania, M.D., $994.00, all of which is outstanding; and in prescription expense, $20.00 paid by the applicant out-of-pocket.
As noted above, Dr. Becker opined that surgery would improve the applicant's knee condition. Accordingly, this order shall be left interlocutory to permit the payment of additional temporary disability compensation, permanent disability compensation, and medical expense, as appropriate and as may arise after the date of hearing.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Barbara Dumesic, Eight thousand, four hundred twenty-two dollars and eight cents ($8,422.08) in disability compensation.
2. To the applicant's lawyer, Daniel Kelley, the sum of Two thousand one hundred fifty-one dollars and eighty-six cents ($2,151.86) in attorney fees and One hundred eighty-five dollars and thirty-six cents ($185.36) in costs.
3. To Advanced Orthopedic & Sports Injury Center, Ltd., Six hundred twenty-one dollars and fifty cents ($621.50) in medical treatment expense.
4. To United Health System, Fifty-five dollars and fifty-six cents ($55.56) in medical treatment expense.
5. To Blount Orthopaedic Clinic, Ltd., Two hundred seventy-two dollars and no cents ($272.00) in medical treatment expense.
6. To Karl B. Sheidt, M.D., S.C., Two hundred fifty-five dollars and no cents ($255.00) in medical treatment expense.
7. To Leilane U. Sta Romania, M.D., Nine hundred ninety-four dollars and no cents ($994.00) in medical treatment expense.
8. To Blue Cross/Blue Shield, Four thousand three hundred thirteen dollars and forty-two cents ($4,313.42) in reimbursement of medical expenses paid.
9. To the applicant, Twenty dollars and no cents ($20.00) in out-of-pocket medical expense.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed November 9, 2009
dumiseb . wrr : 101 : 1 ND
3.34, 3.37, 5.6, 5.20
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor. The commission modified the ALJ's findings concerning temporary disability based on the applicant's uncontradicted testimony that she received the offer in the mail, but rejected it without contacting the employer because of her concerns about ramps. Transcript, page 37 et seq.
cc:
Attorney Daniel J. Kelley
Attorney David Styer
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