VIRGINIA E. HOWARD, Applicant
KRAFT PIZZA CO, Employer
ACE AMERICAN INSURANCE CO, Insurer
In June 2008, the applicant filed an application for hearing regarding a left knee injury and listing a May 2, 2006 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 17, 2009.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, and an average weekly wage of $758.34. At issue was whether the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of and ancillary to that employment. If such an injury is established, also at issue is the applicant's entitlement to an order directing the respondent to pay future medical expenses.
The ALJ issued his order on June 23, 2009. 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 was born in 1948. She began working for the employer, Kraft Pizza Company, in March 1997. She ran a machine that pressed pizza dough and made it round. She worked a 12-hour shift on an alternating 36-hour, 48-hour shift.
The applicant's job required her to stand on her feet. She periodically had to climb a ladder to fill oil jars on a machine, and also on cleaning days to clean the machine. She estimated she had to climb up and down ladders or stairs four or five times day, usually carrying about two quarts of oil.
As noted above, the applicant claims she sustained a left knee injury at work on May 2, 2006. However, the record documents prior instances of left knee complaints. The employer offers a June 2, 1992 note from Sinai Samaritan Center reporting complaints of pain and inflammation of the left knee without trauma for which left knee pain was diagnosed. The note states the applicant denied previous left knee problems. It appears this occasioned a single instance of treatment. Exhibit 2.
The applicant also recalled a left knee injury in 1999, occurring at work when she climbed down a ladder, slipped on a step, and hit her knee. She sought treatment, and was told she had suffered only a bruised knee. She did not follow up thereafter.
There is also a report of an acute left knee contusion following a fall on October 29, 2003. It appears this was a single instance of treatment as well. Exhibit 3.
On May 2, 2006, the applicant injured her left knee at work while descending a set of steps leading down from a platform. She felt a "pop" in her knee, and told her team leader that perhaps she had stepped the wrong way. She noticed her knee was swollen to the point her uniform pants were tight in the knee. However, she did not report the injury formally in the sense of filling out an accident report.
On May 5, the applicant told her supervisor she was having a lot of trouble with her knee. She recalled it being swollen with a little bit of pain. She still did not seek formal treatment, but instead applied hot and cold compresses at home, while taking Aleve.
The applicant testified she was feeling OK at work, nonetheless, but on May 15, she actually heard a pop when she put her left leg down while walking across a catwalk. The applicant formally reported a knee injury that day. Her supervisor took her to an urgent care clinic that day.
A clinic note from this visit is at exhibit A. The "triage" portion of the note reports this history:
L[eft] knee swelling going downstairs
L[eft] knee "popped" 2 weeks ago, happened again today
Swelling at the pre-patellar was also noted. An x-ray (dated May 15, 2006) showed no evidence of fracture, but did show "prominent joint effusion." The physician's note indicates a suspected ACL tear in the left knee. Internal derangement of the left knee was also noted.
The applicant saw Edward Cooney, M.D., at the Work Injury Care Center on May 16, 2006. He took this history:
She states that on 5/2/06, she was coming down two steps at work when she felt a painful pop in her left knee. She had no extreme pain or instability, and she was able to finish her shift. However, over the next few days, it became swollen, hot, and was painful to walk. Four days later at work, she was going up and down a ladder and developed increasing pain, which was more localized toward the back of the knee. She iced the region and took over-the-counter analgesics. She noted more swelling of her knee and at this time described some episodes of feeling unstable though she noted no gross instability. She continued to work over the past several days, but last night while going down some stairs at work, she again felt a painful pop. This time she had immediate swelling and severe pain. She had to be taken to St. Joseph's Outpatient Center...
On examination, Dr. Cooney added:
Her left knee did appear to have an effusion versus the right side. There was no obvious redness or warmth. She had mild, diffuse tenderness which was most noticeable in the lateral joint line and in the popliteal space. ... McMurray's sign was negative though she complained of severe pain with any flexion or extension. The knee was stable.
The doctor's assessment was probable internal derangement of the left knee. He recommended she take ibuprofen and medication, and he returned her to seated work only. He also scheduled a left knee MRI.
The MRI report, dated May 18, 2006, is at exhibit A. It states an impression of:
1. Horizontal/oblique tear involving the posterior body and posterior horn of the medial meniscus. An associated early meniscal cyst is seen with the periphery of the body of the medial meniscus.
2. Intact lateral meniscus.
3. Intact cruciate and collateral ligaments.
4. Small knee joint effusion.
5. Focal near full thickness chondromalacia involving the weightbearing surface of the medial femoral condyle. A similar sized intraarticular fragment is seen posteriorly within a moderate size Baker's cyst.
The applicant returned to Dr. Cooney on May 2, 2006. After looking at the MRI, he felt she was clearly going to require surgery. He referred her to Dr. McCarty, and released her for seated work only.
On May 23, 2006, the applicant saw Dr. McCarty's colleague, Kenneth L. Schaufelberger, M.D., for evaluation of her left knee injury. Dr. Schaufelberger reported that the applicant injured her left knee while on a catwalk at work on May 2, when she heard a pop and subsequently developed an effusion, followed by another pop with the immediate development of pain and more effusion on May 15. She told the doctor she had pain with flexion beyond 90 degrees, with no symptoms of locking or catching, though she did have a "pebble in the shoe" type of feeling.
On examination, Dr. Schaufelberger noted a range of motion from 0 to 100 degrees, pain with flexion beyond 80 degrees, a moderate effusion about the knee, and a positive McMurray's sign. His assessment was a "58 year old female with posttraumatic tear of the medial meniscus with possible traumatic chondromalacia," for which she requested surgery.
Dr. Schaufelberger added that he would do a surgery, including a left knee arthroscopy with debridement of the medial meniscal tear, retrieval of any loose bodies and possible microfracture if necessary, on June 2. He released her to seated work only.
Dr. Schaufelberger's June 2, 2006, operative report is at the end of exhibit E. Degenerative chondromalacia was noted, with a loose chondral piece found in the medial gutter. There was a tear noted in the posterior horn approximately one-third of the length of the meniscus. The doctor also reported:
There was a large chondral defect noted being grade 4 on the weightbearing surface of the distal femur. This had sharp edges and appeared to be traumatic in etiology. This was probed and the edges were loose, particularly anteriorly, and this was debrided back to a stable edge using the arthroscopic shaver. [Underlining supplied.]
On follow-up on June 12, 2006, Dr. Schaufelberger described the surgery as:
...follow-up of her left knee arthroscopy. This revealed a large medial meniscal tear and a large delamination of the medial femoral condyle. This was treated with debridement of the chondral injury to a smooth edge, as well as retrieval of the loose body and partial medical meniscectomy. She reports she has been doing well but is having postoperative pain.
Post-surgery, the applicant developed a complication of a deep vein thrombosis, for which she was treated with an anti-coagulant. When she was six weeks post-surgery, she reported her range of motion was normal, but that she had pain in the medial compartment, knee pain varying with the weather, and recurrent effusion with prolonged activity. In his August 16, 2006 treatment note, Dr. Schaufelberger stated:
A 58-year-old female, six weeks status post left knee arthroscopy with partial medial meniscectomy and debridement of a medial femoral condyle lesion. She is now probably at her baseline. ... Because of her meniscal tear, I would assign permanent partial disability of five percent. Additionally, because of the medial femoral condyle delamination, I would assign an additional five percent, for a total of ten percent permanent partial disability. She is aware that within the next five to ten years, she will likely need either a unicompartment or total knee arthroplasty. She will return to clinic when her pain worsens to the point where she would like to consider conservative therapies, initially, which would be corticosteroid injection.
A few weeks later, on September 6, 2006, the doctor noted the applicant had been doing well but the developed a left knee effusion after a long day at work. (He noted, too, that she worked 12 hour shifts and is on her feet most of the time.) His assessment was:
A 58-year-old female, status post left knee arthroscopy with recent effusion. She has a large delamination of the medial femoral condyle and I ended up awarding her a 10 percent permanent partial disability at the last appointment. I think that a lot of her pain is coming from this arthritis and she was offered and accepted a corticosteroid injection, following which she had near resolution of her pain. An attempt was made to aspirate the area of soft tissue swelling along the anteriomedial tibia, although no fluid could be obtained. This is due to chronic swelling of the knee and is not an area of fluid collection.
On September 18, 2006, Dr. Schaufelberger reported that her knee pain was largely improved, and he released her to work without restriction, though he recommended she continue with her strengthening exercises. His note for that day did, however, indicate that she still had some medial knee pain which was worse with activity and weather changes, but that her knee effusion had resolved and that she requested the release without restriction.
The applicant testified that she continued to have knee problems, specifically knee swelling and not being able to sit or stand for too long. Transcript, pages 30-31. The employer accommodated by allowing her to have a chair, but still she had soreness at the end of her 12 hour shift.
Then, in March 2007, the employer's plant closed. The applicant found work at the postal service, where she was hired as a casual letter carrier. She had a week of in class training, and three days of watching an experienced letter carrier do his route. Then, she was given her own route. However, she had to stop working after an hour because of her left knee. The postal service then assigned her work driving a truck and dropping mail at and collecting mail from mail boxes. She did this work for about two weeks.
The postal service, however, wanted her to perform door-to-door delivery, so she had to resign after less than a month at the postal service. She did not believe she had any new injury during employment. It does not appear she treated for her knee pain either.
The applicant resumed treatment with Dr. Schaufelberger who wanted to do another MRI. A note from Dr. Schaufelberger dated July 25, 2007 reports the applicant had worsening left knee pain which started shortly after starting a job at the postal service with a walking delivery route. She denied any new injury, but had pain and swelling to the point she had to quit the post office job. She reported cracking, but no locking or catching. He wanted to do an MRI to evaluate for a new meniscal tear.
A copy of the MRI report dated July 26, 2007 is at exhibit 7. It refers to "pain for approximately ten years." The conclusion was intact cruciate ligaments, a large oblique tear involving the posterior horn of the medial meniscus, an intact medial meniscus, partial and full thickness chondral disease involving the medial patellar facet, and chondral thinning involving the medial patellar facet.
The MRI, according to Dr. Schaufelberger's July 30, 2007 note, showed grade 4 chondromalacia of the medial femoral condyle and medial patellar facet with a large posterior horn meniscal tear. Dr. Schaufelberger's assessment was:
This is a 59-year-old female with posttraumatic left knee DJD. Approximately one year ago at work she sustained an injury where she delaminated the majority of the weightbearing of the medial femoral condyle, and not surprisingly, has gone on to develop arthritic pain. Treatment options were discussed with her, including debridement of her medial meniscus or total knee arthroplasty. ...she has elected to proceed with total knee arthroplasty. Because I will be leaving the practice, she would like to have this performed by Dr. McCarty and will follow up with him.
The applicant then saw Dr. McCarty on August 13, 2007. He noted the applicant was still having pain on the medial side of her knee, and that physical examination showed a very focal pain over the posterior medial joint line, which was worsened with external rotation testing. He noted the MRI from the prior August showed a very large oblique tear of the medial meniscus with a fairly large parameniscal cyst adjacent to this. He noted also some chondral thinning on the medial femoral condyle, and some chondral disease in the medial patellar facet as well.
Dr. McCarty's impression was:
...I recommended operative arthroscopy with a partial medial meniscectomy. I don't think that a total knee replacement is appropriate in this setting. It would appear that perhaps less than complete resection of original tear was performed which has led to the meniscal cyst and persistence of symptoms. ... In my opinion to a reasonable degree of medical certainty, this is related to her original meniscal injury which was work related.
The applicant has not seen Dr. McCarty since.
Both sides submit reports stating expert medical opinion. Dr. McCarty's opinion is stated in a report dated June 19, 2008, at exhibit D. The report identifies the date of traumatic event as May 2, 2006. Regarding the accident or work exposure causing the injury, Dr. McCarty's report refers to attached notes, which includes Dr. Schaufelberger's May 23, 2006 note stating:
On May 2, she initially injured her left knee while on a catwalk at work. She heard a pop and had a subsequent development of an effusion.
Dr. McCarty's form report also refers to notes for a description of the diagnosis. On this point, Dr. McCarty's June 19, 2008 note refers to a meniscus tear treated arthroscopically and found to be consistent with the mechanism of an injury at work.
In the practitioner's report, Dr. McCarty also marked affirmatively the box on the form report indicating that the May 2, 2006 event precipitated, aggravated and accelerated beyond normal progression a pre-existing progressively deteriorating or degenerative condition. The doctor added in a letter attached to the form report:
She failed to progress and, therefore, was seen by me on August 13, 2007. At that time, a repeat MRI demonstrated continued presence of a fairly large oblique medial meniscus tear, as well as some articular surface damage. Repeated arthroscopic debridement was recommended at that time. The patient has not followed up since, and I have not seen her since that date.
To a reasonable degree of medical certainty, it is my opinion that, given the articular surface damage that was present, she has had an aggravation and acceleration of a pre-existing condition beyond its normal progression. It was my opinion nearly a year ago that repeat arthroscopy may be helpful to her. I have no opinion as to her ability to have gainful employment, as I have not seen her in almost a year. Permanent partial disability rating at this time is not possible, as we have not seen the patient in such a long time, and I do not know the status of her knee. It certainly would be at least 5 percent based upon the meniscal injury and statutory application of the PPD rating for that injury.
The employer's medical expert is Richard C. Lemon, M.D. His opinion dated December 10, 2007 is at exhibit 6. His report notes then current symptoms of continued left knee pain aggravated by walking, stair climbing, bending, kneeling, twisting, or sitting. On examination, he noted an antalgic gait favoring the applicant's left knee. He described her left knee as having nearly a full range of motion, with pain at the limits of flexion and marked medial joint line tenderness. He noted no effusion, however, and no ligament laxity in the left knee.
His review of the records includes those from the 1999 injury, but not the 1992 or 2003 incidents, and then all the treatment notes from the May 2, 2006 event. His diagnostic impression was:
1. Preexisting left knee osteoarthritis, unrelated to employment at Kraft Foods - Sussex and unrelated to any alleged on-the-job injury at Kraft Foods - Sussex.
2. Manifestation of preexisting left knee osteoarthritis - May 2, 2006, unrelated to employment at Kraft Food - Sussex and unrelated to any alleged on-the-job injury at Kraft Foods - Sussex.
3. Status post left knee arthroscopy with chondral debridement and medial meniscectomy - June 2, 2006, unrelated to employment at Kraft Foods - Sussex.
4. Obesity.
5. Nicotine dependence.
Discussing the applicant's condition, Dr. Lemon wrote:
Ms. Howard's left knee pain is due to her pre-existing left knee osteoarthritis. Ms. Howard's onset of left knee pain when simply going down the stairs at work represents a manifestation of her preexisting left knee osteoarthritis. Ms. Howard did not have any trauma to her left knee. She did not twist her left knee. She did not fall on her left knee. Rather, Ms. Howard's insidious onset of left knee pain while going down stairs represents a manifestation of her pre-existing left knee osteoarthritis, unrelated to her employment at Kraft Foods - Sussex and unrelated to any alleged on-the-job injury.
While stating that none of the applicant's treatment was related to her employment, Dr. Lemon did state that it was reasonable to consider a left knee arthroscopy, debridement, and medial meniscectomy. He added that she might ultimately need a left total knee replacement, adding again that these recommendations were unrelated to any alleged on the job injury.
In response to written interrogatories, Dr. Karr reiterated the above opinions, adding that her left knee condition was simply a manifestation of her preexisting left knee osteoarthritis. He also stated that her treatment to the date of her report had been reasonable.
The commission is persuaded that the applicant sustained an injury to her left knee on May 2, 2006, which arose out of the course of her employment with the employer, while performing services growing out of and incidental to that employment. It adopts Dr. McCarty's opinion that the May 2, 2006 event precipitated, aggravated and accelerated a pre-existing progressively deteriorating or degenerative condition beyond its normal progression.
Specifically, the commission is satisfied that the applicant injured her knee
and damaged her meniscus while descending from a platform at work.(1) On this point, the commission particularly notes Dr. Dr. Schaufelberger's June 2, 2006 operative note describing what he referred to as a chondral defect that "had sharp edges and appeared to be traumatic in etiology." The commission does not read Dr. Lemon's report to discuss, much less refute, this observation which Dr. Schaufelberger made firsthand during surgery. In addition, the early medical notes uniformly note swelling or effusion in the knee, which was described as prominent shortly after the injury but diminished with the passage of time, suggesting that some trauma had recently occurred to damage the knee.
The commission also notes that the documented left knee treatment before May 2, 2006 is fairly insignificant: three instances of treatment--years apart from each other--in the 14 years preceding her injury. The employer's medical expert, Dr. Lemon, does not mention the 1992 and 2003 instances of treatment in his report. Further, some prior treatment would not be inconsistent with Dr. McCarty's opinion that the work incident on May 2, 2006 aggravated, accelerated, and precipitated a pre-existing degenerative condition beyond its normal progression.
The commission did consider the notation in the July 25, 2007 MRI indicating a ten-year history of knee pain. However, that is the only mention in the medical notes of a chronic problem over ten years. The rest of the notes consistently report pain starting with the May 2, 2006 work injury. At the hearing, the applicant denied a ten year history of knee pain and asserted the MRI history was in error. Transcript, page 47. The ALJ, who could observe the applicant when she testified, found her credible and the commission accepts that credibility finding on this record. In short, the applicant has met her burden of eliminating legitimate doubt on causation
According to the preliminary statements in the hearing transcript, the only relief sought by the applicant at the hearing was a prospective order for surgery to repair the applicant's knee. The parties specified further that the surgery at issue was not a total knee replacement. Transcript, pages 5-6. Indeed, the reports of Drs. Lemon and McCarty make it clear they contemplate an arthroscopic procedure with debridement and possible meniscectomy.
Given the agreement between the doctors as to this course of surgical treatment, and the commission's conclusion that the procedure is reasonable and necessary to cure and relieve the applicant's continuing problems from her work injury, the commission now orders the respondent to pay for the arthroscopic procedure proposed by Dr. McCarty in his note of August 13, 2007 (and his report of June 19, 2008) should the applicant undergo it.
While the amendment to Wis. Stat. 102.18(1)(b)(2) allows the commission to order an insurer to pay for future treatment, an award for the payment of temporary disability may not be made to continue indefinitely into the future.(3) The commission therefore does not order in advance the payment of temporary disability resulting from the proposed surgery. Of course, employers and their insurers are liable under the workers compensation law for compensation due to disability from a work injury, and they are potentially liable for penalties if they refuse to pay without reason.
In light of the fact the applicant requires surgery to treat her work injury, this order shall be left interlocutory to permit further orders regarding claims for disability and treatment expense that might arise in the future.
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.
The employer and its insurer shall pay for the surgery treatment proposed by Dr. McCarty, as stated in the body of this decision.
Jurisdiction is retained for further orders and awards as warranted and consistent with this decision.
Dated and mailed February 24, 2010
howardv . wrr : 101 : 9 ND 3.31, 5.46
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Jennifer F. Valenti
Attorney Ronald S. Aplin
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]