BRYAN G SULLIVAN, Applicant
OSHKOSH TRUCK CORP, Employer
UTSCHIG THEO & SON INC, Employer
PIPING SERVICE INC, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
TRAVELERS CASUALTY & SURETY CO, Insurer
TRANSPORTATION INSURANCE CO, Insurer
WORK INJ SUPP BEN FUND, Insurer
Theo Utschig & Son, Inc./Travelers Casualty & Surety Company (Utschig/Travelers), Oshkosh Truck Corp/Employers Insurance Company of Wausau (Oshkosh/Employers), and Piping Service, Inc./Transportation Insurance Company (Piping/Transportation) each submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 23, 2009. Briefs have been submitted by the parties.
Utschig/Travelers conceded a compensable left knee injury that occurred on July 3, 1978, together with the 1978 maximum average weekly wage. Oshkosh/Employers conceded a compensable left knee injury that occurred on January 24, 1982, together with an average weekly wage of $359.60. Piping/Transportation conceded a compensable left knee injury that occurred on March 4, 1997, together with the 1997 maximum average weekly wage. At issue are: (1) apportionment of liability among the respondents for compensation including medical expense attributable to total left knee replacement surgery performed on September 18, 1997; (2) a claim that Wis. Stat. § 102.17(4), is unconstitutional; (3) nature and extent of disability and liability for medical expense attributable to the traumatic left knee injury of March 4, 1997; and (4) whether or not reimbursement is due to Transportation Insurance Company for compensation it paid towards the traumatic left knee injury of March 4, 1997.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:
The applicant, whose birth date is April 5, 1959, sustained a traumatic injury to his left knee on July 3, 1978, when he jumped off the back of a pickup truck. He was employed at that time by Theo Utschig & Son (Travelers Insurance). Dr. James Sargent performed open surgery on the knee on August 12, 1978, which involved removal of torn left medial and lateral meniscus tissue. Dr. Sargent also noted an "obvious" anterior cruciate ligament tear, but concluded that repair of the ligament was not indicated at that time. Dr. Sargent assessed 10 percent permanent partial disability at the left knee.
A second traumatic left knee injury occurred on January 24, 1982, when the employee slipped on ice while working for Oshkosh Truck Corp (Employers Insurance of Wausau). Dr. Sargent performed another open surgery on the knee on February 24, 1982, involving repair of the medial collateral ligament, removal of a large bony fragment from the lateral femoral condyle, and general debridement of the knee joint. Laxity of the anterior cruciate ligament was noted, but again Dr. Sargent elected not to reconstruct the ligament. Dr. Sargent assessed an additional 10 percent permanent partial disability.
A third traumatic injury occurred on March 4, 1997, when the applicant was employed by Piping Service, Inc. (Transportation Insurance). In that incident a metal beam struck the applicant's left leg just above his knee, while he was standing on a ladder. The blow knocked him off the ladder to the ground, which was approximately a four-foot fall. The applicant's knee "hyperextended" and "twisted" when he hit the ground. Dr. Sargent's clinic note of March 7, 1997, verifies a contusion and swelling in the left knee, but it did not mention any hyperextension or twisting. Dr. Sargent attempted conservative care but on September 18, 1997, he performed arthroscopic ACL reconstruction, removal of a bone fragment, and removal of torn medial meniscus tissue. Dr. Sargent assessed another 10 percent permanent partial disability to the knee.
The applicant indicated that after the March 1997 injury his knee was more painful but more stable. These somewhat inconsistent descriptions are inferred to be partially explainable by the fact that the ACL reconstruction took place in the September 1997 surgery.
In 2003, the applicant began treating with an orthopedic surgeon, Dr. Davis Tsai. He also treated with other physicians, but because of increasing pain he ultimately agreed to total left knee replacement surgery performed by Dr. Tsai on March 29, 2007. The primary issue in this proceeding is determination of liability for this total knee replacement surgery.
Dr. Tsai completed a WKC-16-B dated July 16, 2007, in which he listed the March 1997 date of injury and checked the "direct causation" and the "precipitated/aggravated/accelerated beyond normal progression" causation boxes. In the former box he wrote: "Work related injury caused numerous surgeries thus leading to need for TLK." In a letter addressed to the attorney for Piping Service/Transportation dated July 30, 2007, Dr. Tsai wrote:
"The ACL was torn prior to March of 1997. Mr. Sullivan subsequently sustained work related injuries in 1997 and 1983 (sic) that may have exacerbated and accelerated a preexisting injury and degenerative process."
In still another letter addressed to the same attorney on September 19, 2007, Dr. Tsai again indicated that the applicant's ACL was torn prior to March 1997. He additionally wrote:
"...the injury sustained in March did exacerbate his symptoms, which eventually lead (sic) to repeated arthroscopies, ACL reconstruction and having failed all of the above hardware removal and conversion to a primary left total knee arthroplasty. This case is complicated by the fact that the knee has undergone surgery in 80's. He has had preexisting problems with that knee prior to this incident."
At Employers Insurance of Wausau's request, Dr. Steven Friedel examined the applicant and submitted a written evaluation dated July 25, 2008. Dr. Friedel attributed 90 percent of the cause for the total knee replacement to the effects of the work injury with Theo Utschig & Son on July 3, 1978. He attributed the remaining 10 percent of causation to the injury with Oshkosh Truck on January 24, 1982. Dr. Friedel opined that the March 1997 injury was nothing more than a minor strain, and did not contribute to the need for the total knee replacement surgery.
At Traveler's request, Dr. James Stiehl performed a medical record review and submitted a report dated June 10, 2008. He apportioned causation for the total knee surgery at 85 percent attributable to the 1978 injury, 10 percent attributable to the 1982 injury, and 5 percent attributable to the 1997 injury.
At Transportation's request, Dr. Richard Lemon examined the applicant and submitted a report dated September 22, 2007.1(1) Dr. Lemon apportioned causation for the total knee surgery at 90 percent attributable to the 1978 injury, and 10 percent attributable to the 1982 injury. He opined that the 1997 incident resulted in a contusion injury with no permanent disability.
Dr. Sargent completed a WKC-16-B dated April 13, 1998. In that document he attributed the 1997 ACL reconstruction surgery to the March 1997 traumatic injury. No opinion was submitted from Dr. Sargent regarding causation for the applicant's total knee replacement surgery.
The administrative law judge adopted the 90/10 apportionment assessed by Dr. Friedel and Dr. Lemon. He found the applicant's testimony that he "twisted" or "hyperextended" his knee on March 4, 1997, to be incredible. He noted that when the applicant went to Dr. Sargent for treatment on March 7, 1997, that physician's clinic note recounted a history of the left leg being hit by a beam "right on top of the left knee," causing a contusion; but there was no mention of "twisting" or "hyperextension," nor did Dr. Sargent use these words in his WKC-16-B dated April 13, 1998. However, the employer's First Report of Injury dated March 4, 1997, and described by Dr. Lemon in that physician's September 2007 evaluation, provides:
"Beam hit me in left. Fell from ladder four feet and twisted left knee."
Thus, a written report consistent with the applicant's description of the work incident was completed on the date of that incident, and the medical records reflect a significant change in the applicant's left knee condition coincident with that incident. Neither Dr. Sargent's clinic note dated March 7, 1997, nor his WKC-16-B mentions twisting or hyperextension, but the commission's experience has taught it that busy physicians frequently do not indicate all of the details of a work injury in their notes or reports. The commission looks to the entire record to determine whether or not an applicant's description of a work incident is credible. In this case, there is confirmation of the applicant's description in the First Report of Injury, and in Dr. Tsai's WKC-16-B dated July 16, 2007, which describes the applicant being knocked off a ladder and "twisting knee." In addition, it is entirely plausible that an individual being knocked off a ladder and falling four feet would land hard and somewhat awkwardly on the floor. The commission finds credible Dr. Stiehl's and Dr. Tsai's opinions that the March 1997 work injury was one of the causes of the applicant's left total knee replacement surgery. Dr. Stiehl provided a credible apportionment of causation among the three work injuries. To reiterate, Dr. Stiehl apportioned causation for the total knee replacement surgery at 85 percent attributable to the work injury of July 3, 1978, 10 percent attributable to the work injury of January 24, 1982, and five percent attributable to the work injury of March 4, 1997.
The statute of limitations has expired in this matter against Utschig/Travelers and Oshkosh/Employers, except for a revision of Wis. Stat. § 102.17(4), which took effect on April 1, 2006. That revision retroactively removed the statute of limitations for specified injuries, including total knee replacements. Utschig/Travelers and Oshkosh/Employers have submitted arguments challenging the constitutionality of this revised statute, but as noted by the administrative law judge, neither the department nor the commission possesses the authority to declare a state statute unconstitutional.(2)
Dr. Sargent, who performed the September 1997 ACL reconstruction surgery, completed a WKC-16-B dated April 13, 1998, in which he attributed direct work causation for that surgery to the work injury of March 4, 1997. Dr. Tsai's July 2007 WKC-16-B also opines that the March 1997 work injury was at least partially causative of the September 1997 surgery. Neither Dr. Stiehl nor Dr. Friedel commented directly regarding causation for the September 1997 surgery, while Dr. Lemon opined that there was no causal relationship between the March 1997 injury and the September 1997 surgery. The commission finds Dr. Tsai's opinion that there was a substantial causal relationship between the March 1997 work injury and the September 1997 surgery credible. Transportation Insurance has already paid for the surgery and requests reimbursement from the other two employers/insurers, on the basis of the apportionment found for the total knee replacement surgery. However, the statute of limitations had expired against Utschig/Travelers and Oshkosh/Employers when the September 1997 surgery was performed, and the revised statute only removes the statute of limitations for partial or total knee replacements, not for knee surgery such as was performed on September 18, 1997. Therefore, regardless of any apportionment of liability for the total knee surgery, Transportation Insurance has no surviving right under the statutes for the claimed reimbursement from the other employers/insurers.
As explained in David Ralph Parent v. MG&E, WC Claim No. 1998-012234 (LIRC November 30, 2009); Jon Taylor v. Devine Savior Hospital and Greenwich Ins. Co., WC Claim No. 2006-021498 (LIRC July 16, 2009); and Daniel Lenegar v. Pepsi Cola General Bottlers and Old Republic Ins. Co., WC Claim No. 2005-007181 (LIRC April 9, 2007), the commission deducts prior awards or disability ratings assessed for preexisting disability from the disability rating assessed for a total knee replacement attributable to a subsequent work injury or injuries. However, when one injury results in successive surgeries that may include a total knee replacement, the permanent disability compensation for all such surgeries is awarded cumulatively. The applicant's case invokes the former rule.
With regard to permanent disability, the January 1982 work injury occurred when the applicant already had a 10 percent preexisting left knee disability. Thus, for Oshkosh/Employers, the uncontested minimum assessment of 50 percent permanent partial disability for the total knee replacement is reduced by the preexisting 10 percent. Oshkosh/Employers are responsible for 10 percent of the total knee replacement, which translates to four percent permanent partial disability (50 percent minus 10 percent times 10 percent). This translates to 17 weeks of permanent partial disability at the applicable rate of $90 per week, for a total of $1,530.00.
The March 1997 work injury occurred when the applicant already had 20 percent preexisting left knee disability, thus, for Piping/Transportation, the 50 percent permanency is reduced by 20 percent. Piping/Transportation are responsible for five percent of the total knee replacement, which translates to 1.5 percent permanent partial disability (50 percent minus 20 percent times five percent). This translates to 6.375 weeks of permanent partial disability at $174 per week for a total of $1,109.25.
There was no preexisting disability when the applicant sustained his July 1978 left knee injury, and therefore Utschig/Travelers are responsible for the remaining 44.5 percent permanent partial disability attributable to the total knee replacement, which translates to 189.125 weeks of permanency at $65 per week for a total of $12,293.13.
Piping/Transportation are responsible for the applicant's temporary total disability solely attributable to his March 1997 traumatic left knee injury, which was the period from March 4, 1997 to April 14, 1997. This was a period of four weeks and two days at the applicable rate of $509 per week for a total of $2,205.67. Piping/Transportation paid $19,611.00 in compensation, resulting in an overpayment of $17,405.33, which offsets the $1,109.25 otherwise due for permanent partial disability, and leaves an overpayment of $16,296.08. As previously noted, none of this overpayment is reimbursable from the other respondents.
All three insurers/employers are responsible in their respective proportions for the temporary total disability attributable to the total knee replacement surgery, which was the period between March 28, 2007 and June 29, 2007, a period of 13 weeks and one day.
For Piping/Transportation the escalated temporary total disability rate is $777 per week, for which they are responsible to pay five percent, or $38.85 per week. The total for 13 weeks and one day is therefore $511.52, which is also offset by their overpayment, and leaves a net overpayment by Transportation Insurance of $15,784.56.
For Oshkosh/Employers the escalated temporary total disability rate for this same period is $692.48 per week, for which they are responsible to pay 10 percent, or $69.25 per week. The total for 13 weeks and one day is $911.79.
For Utschig/Travelers the escalated temporary total disability rate for the same period is $777 per week, for which they are responsible to pay 85 percent, or $660.45 per week. The total for 13 weeks and one day is $8,695.92.
To summarize, for the accrued awards of temporary total disability and permanent partial disability, Piping/Transportation has a net overpayment of $15,784.56. Oshkosh/Employers owes $2,441.79, less an attorney's fee of $488.36, for a net amount due to the applicant of $1,953.43. Utschig/Travelers owes $20,989.05, less $3,971 in sickness and accident benefits that Travelers must reimburse, and less $3,403.61 in attorney fees and $24.09 in attorney costs, for a net amount due the applicant of $13,590.35.
The reasonably required medical expenses for the total knee replacement surgery shall be paid in accordance with the respective percentages of apportioned liability, as particularized below.
Jurisdiction will be reserved with respect to the possibility of additional medical expense and/or disability related to the applicant's left knee.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Theo Utschig & Son, Inc. and Travelers Casualty & Surety Company shall pay to the applicant the sum of Thirteen thousand five hundred ninety dollars and thirty-five cents ($13,590.35); and to applicant's attorney, Tony W. Welhouse, fees in the amount of Three thousand four hundred three dollars and sixty-one cents ($3,403.61) and costs in the amount of Twenty-four dollars and nine cents ($24.09).
Within 30 days from this date, Oshkosh Truck Corp and Employers Insurance Company of Wausau shall pay to the applicant the sum of One thousand nine hundred fifty-three dollars and forty-three cents ($1,953.43); and to applicant's attorney, Tony W. Welhouse, fees in the amount of Four hundred eighty-eight dollars and thirty-six cents ($488.36).
Within 30 days from this date, Theo Utschig & Son, Inc. and Travelers Casualty & Surety Company shall pay to the Kennedy Center for Hip and Knee the sum of Eight dollars and fifty cents ($8.50); to Valley Orthopedic Clinic the sum of Eight dollars and fifty cents ($8.50); to Radiology Associates of Fox Valley the sum of Seventy-one dollars and fifteen cents ($71.15); to United Health the sum of Two thousand seven hundred eighty-nine dollars and forty-one cents ($2,789.41); and to Plumbers and Steamfitters Local 400 the sum of Twenty-two thousand three hundred eighty-four dollars and ninety-two cents ($22,384.92).
Within 30 days from this date, Oshkosh Truck Corp and Employers Insurance Company of Wausau shall pay to the Kennedy Center for Hip and Knee the sum of One dollars ($1.00); to Valley Orthopedic Clinic the sum of One dollar ($1.00); to Radiology Associates of Fox Valley the sum of Eight dollars and thirty-seven cents ($8.37); to the applicant as reimbursement the sum of Three hundred twenty-eight dollars and seventeen cents ($328.17); and to Plumbers and Steamfitters Local 400 the sum of Two thousand six hundred thirty-three dollars and fifty-two cents ($2,633.52).
Within 30 days from this date, Piping Service, Inc. and Transportation Insurance Company shall pay to the Kennedy Center for Hip and Knee the sum of Fifty cents ($.50); to Valley Orthopedic Clinic the sum of Fifty cents ($.50); to Radiology Associates of Fox Valley the sum of Four dollars and eighteen cents ($4.18); to the applicant as reimbursement the sum of One hundred sixty-four dollars and eight cents ($164.08); and to Plumbers and Steamfitters Local 400 the sum of One thousand three hundred sixteen dollars and seventy-six cents ($1,316.76).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed March 8, 2010
sullibr : 185 : 5 ND §§ 3.43, 5.18
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Tony Welhouse
Attorney Peggy E. Van Horn
Attorney Catherine A. Thomas
Attorney Mark Miller
Attorney R. Duane Harlow
Appealed to Circuit Court
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]