SCOTT WALDVOGEL, Applicant
CITY OF ANTIGO, Employer
CITIES & VILLAGES MUTUAL INS CO, Insurer
The applicant filed an application seeking compensation for a right knee injury occurring on January 29, 2007. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 12, 2009. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $741.98.
At issue before the ALJ was whether the applicant had sustained an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. Also at issue was the nature and extent of disability, and the respondent's liability for medical expenses.
On June 3, 2009, the ALJ issued her decision. The respondent filed a timely petition for commission 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:
The applicant works as a sewer construction lead man for the employer. He twisted his right knee at work on January 29, 2007, while pulling tree branches. On February 5, 2007, he saw his family physician, Robert Cromer, M.D., who ordered an MRI. The MRI (exhibit D) showed findings consistent with a partial tear of the anterior cruciate ligament. Dr. Cromer referred the applicant to an orthopedist.
The applicant accordingly saw James P. Sutherland, M.D., on February 19, 2007. Dr. Sutherland recorded complaints of right knee pain which were significantly improved, so that the applicant only had pain if he twisted in a certain direction. Dr. Sutherland also noted that the applicant denied any mechanical problems and told the doctor he was feeling considerably better.
Dr. Sutherland also noted:
Examination of the knees reveals no obvious ecchymosis, erythema, or deformity. He has no significant effusion. Clinically has a negative Lachman's bilaterally with a firm end point. No varus or valgus instability in full extension or in flexion. No click or clunk with McMurray's maneuver bilaterally. No varus or valgus instability in full extension or in 30 degrees of flexion. He has intact skin without rash, lesion, or lymphyedema. He has bilateral intact ankle dorisflexion, plantar flexion, and great toe extension. Palpable doralis pedis and posterior tibialis pulses.
Dr. Sutherland reported further that the findings on the MRI
do show some possible partial thickness tearing of the anterior cruciate ligament although the acute versus chronic nature of this is unclear at this point. He has minimal effusion, no bony contusion, and no meniscal abnormality.
Dr. Sutherland's assessment was "resolving knee strain status post twisting injury with MRI which shows a possible partial ligament disruption of the ACL." The doctor's plan stated:
Because he is improving and not currently having symptoms of instability and does not have meniscal pathology, I would not recommend any intervention. Recommend he return to work at least to activities as tolerated, progressively increasing his activity, and follow up in 2-6 week if he continues to have difficulty. It is unlikely based on his clinical findings and his history that he would require any sort of surgical intervention.
When Dr. Sutherland saw the applicant next on April 3, 2007, he reported that the applicant had some achiness and sometimes feels that he tweaks his knee as he twisted on it. However, he did not have any true instability, swelling or mechanical symptoms. The doctor's assessment again was "resolving symptoms right knee status post partial ACL tear." The doctor added that "because he is not experiencing any true instability, I would not recommend surgical reconstruction at this point."
On May 15, 2007, Dr. Sutherland reported that the applicant "had a partial ACL tear 31/2 months ago" but was doing very well and not having any trouble. He occasionally had a tweak, which he could not reproduce, but this did not keep him from any activity he wanted. The doctor noted that the applicant was at work without restrictions, and should follow-up in three months for a final check.
The applicant's last visit was on August 14, 2007. On this occasion, Dr. Sutherland noted
...follows up 6 months status post a right knee anterior cruciate ligament disruption. This was a workman's injury. He initially opted for nonsurgical treatment. He is doing quite well. He really is not having any trouble. He does not limit his activities in any way. He does not notice any effusion or instability. His knee is certainly not bad enough that he wishes to consider any type of reconstructive procedure currently.
It does not appear there was any abnormality on the doctor's actual physical examination of the knee. Diagnosing chronic ACL deficiency of the right knee, the doctor concluded:
Since the patient is doing quite well and not really having any limitation, at this point I do not feel it is necessary to consider surgical reconstruction although he could potentially need this at some point in the future. Minimum permanent partial disability for ACL injury is ten percent by statute. This is what I recommend.
The applicant testified about his knee at the hearing. He stated his knee stiffens in certain positions, as when he kneeled on it for a long time and stands back up. He said he does activities differently to avoid knee pain, and he tries to limit the amount of weight he puts on his knee. He stated his knee probably had given away in the prior 6-12 months. Transcript, page 32. On cross examination, the applicant acknowledged that he had at times told Dr. Sutherland he had no knee pain and that at the last visit he told Dr. Sutherland his knee did not limit him in any way. Transcript, page 47.
Both parties submitted expert medical opinion regarding the cause, nature and extent of the applicant's disability. Treating doctor Sutherland prepared two practitioner's reports on form WKC-16B. In both reports, the doctor opined the traumatic event of January 29, 2007 directly caused the applicant's work injury. He also listed the applicant's prognosis as good, adding that the applicant could require an ACL reconstruction in the future but was "currently asymptomatic."
In the first practitioner's report, dated in August 2008, Dr. Sutherland estimated permanent partial disability at 10 percent to the right knee. In response to the question about the elements constituting permanent disability, the doctor wrote "by statute." In a second report dated December 31, 2008, the doctor estimated at 15 percent again stating "by statute" when asked to list the disabling elements.
An explanation of the change in Dr. Sutherland's rating from 10 to 15 percent, is provided by a letter from Dr. Sutherland to the insurer dated September 18, 2007.(1) The letter states:
I strongly disagree with your assessment of the fact that given that Mr. Waldvogel has not elected to have reconstruction of his ACL, that he has no permanent partial disability. The implication of what you are saying is that by reconstructing somebody's anterior cruciate ligament with surgery, we are making them worse than how they would do without a reconstructed ACL. On the contrary, I believe that Mr. Waldvogel's permanent partial disability should be rated at fifteen percent because although he does not experience daily instability, he still is subject to micro instability which puts him at risk in the future for development of instability associated arthritis. He is currently not unstable and I believe it is unwise for him to undergo an anterior cruciate ligament reconstruction given the circumstance, and should he develop arthritis in the future, it would be appropriate for him to undergo a knee replacement at that time.
As I mentioned above, I would rate his permanent partial disability at fifteen percent for an anterior cruciate ligament deficient knee without reconstruction.
The respondent offers the reports of its medical examiner, Steven Friedel, M.D. In his initial report of January 21, 2008 (exhibit 1), Dr. Friedel diagnosed a right knee strain as well as partial anterior cruciate ligament tear. However, he did not concur with Dr. Sutherland's estimate of permanent partial disability at 15 percent at the knee, stating:
I do not concur with the 15 percent permanent partial disability rating in light of the findings on the magnetic resonance imaging scan. Initial multiple examinations in February, April and May time frames showed a stable knee without symptom of instability, locking or catching. Physical examination showed no significant atrophy or effusion. Additionally, the magnetic resonance imaging scan showed no significant damage to the articular cartilage or bone marrow edema, making it unlikely that an ongoing disease process is occurring. The examinee has returned back to full activities without limitations or restrictions. Therefore no permanent partial disability as it relates to this injury has resulted. Based on these findings, the current stability on exam, as well as his ability to return to full activities makes the need for ACL reconstruction as it relates to this event unlikely.
Dr. Friedel confirmed these opinions in a later report (exhibit 2).
On appeal, the respondent does not challenge the ALJ's finding that the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of an incidental to that employment. Indeed, the record, including particularly treatment notes and Dr. Sutherland's practitioner's reports persuade the commission the ALJ's findings on that point are correct.
Now at issue, rather, is the amount of permanent partial disability, if any, resulting from the injury. Dr. Sutherland initially estimated permanent partial disability at 10 percent compared to loss at the knee based on his understanding of the minimum award under the administrative code. However, the 10 percent minimum disability rating under Wis. Admin. Code § DWD 80.32(4) is based on the occurrence of an "anterior cruciate ligament repair," not on the presence of an ACL tear or an MRI showing (in Dr. Sutherland's words) "possible partial thickness tearing of the anterior cruciate ligament." In other words, the minimum assumes a knee requiring an ACL repair surgery and that the surgery was performed. Here, the applicant has had no surgery.
In his second report, Dr. Sutherland increased his rating to 15 percent, reasoning that someone who has no surgery should have a higher permanent partial disability rating than someone who has had a successful surgery. This may well be true, assuming that surgery is necessary. That is, if a doctor recommends an ACL repair because the condition of a person's knee is bad enough to warrant a repair, but the person never undergoes the repair surgery, permanent partial disability might be warranted at higher level than the minimum for a successful procedure, especially if a correspondingly increased functional loss (such as decreased range of motion) were documented. But where the repair surgery is neither recommended nor performed because the knee is stable and symptom-free, the commission sees no logic in awarding permanent disability based on the code minimum.
In short, Dr. Sutherland's ratings are based solely on the administrative code minimum for an ACL repair surgery and his belief that, when an MRI shows an ACL tear, even a stable, asymptomatic knee that does not warrant surgery should get permanent partial disability based on that minimum. Dr. Sutherland does not offer a rating based on the applicant's complaints at hearing: stiffness if he kneels on his right knee for too long and self-limiting weight bearing. In fact, Dr. Sutherland's notes are inconsistent with those complaints testimony--Dr. Sutherland did not limit weightbearing and he described the knee as asymptomatic in his practitioner's reports. While stiffness and weightbearing problems might have been taken into account by a medical expert giving a disability rating, the fact is that they were not in this case; at least not on the record before the commission.
On this record, then, the commission credits Dr. Friedel's opinion that no permanent partial disability had resulted from the work injury, at least not as of the date of the hearing. There is no claim for temporary disability. A "Medical Treatment Statement" on form WKC-3 was filed by the applicant, but it shows the applicant's medical expenses have been paid in full by the insurer. Exhibit G does include a claim for medical mileage in the amount of $147.48, which the commission is satisfied is compensable under Wis. Stat. § 102.42(2)(b). No other compensation is due at this time.
In general, an interlocutory--as opposed to final--order is appropriate when it may not definitely be determined that the injured worker will not sustain additional 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). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Issuing an interlocutory order is discretionary under Wis. Stat. § 102.18(1)b), "to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate." DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007, note 106.
Dr. Sutherland opined that, while the applicant's prognosis is good, he could require an ACL reconstruction in the future. Indeed, future surgery--or future disability even if no surgery is done--seems a reasonable possibility based on the findings on the MRI. Accordingly, this order shall be left interlocutory to permit future orders and awards as are warranted.
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 from the date of this order, the employer and its insurer shall pay the applicant, Scott J. Waldvogel, the sum of One hundred forty-seven dollars and forty-eight cents ($147.48) in medical mileage.
This order shall be left interlocutory to permit future orders and awards as are warranted and consistent with this decision.
Dated and mailed January 28, 2010
waldvsc . wrr : 101 : 9 ND
5.18
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 did not reverse the ALJ's decision based on a different view of the credibility of the witness who testified at the hearing, but because it concluded as a matter of law that neither the expert medical evidence nor the administrative code minimums provide a basis for an award of permanent disability at this point.
cc:
Attorney Matthew E. Yde
Attorney William W. Ehrke
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]