GREGORY P LAWRENCE, Applicant

M J SYSTEMS, Employer

WIS WC UEF, Insurer

The Uninsured Employer's Fund and ASU Risk Group (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 8, 2009. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the conceded work injuries to the applicant's back, right leg, and left knee sustained on March 23, 2006.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is February 4, 1972, was employed as a cable installer for the employer when injured on March 23, 2006. This conceded work injury occurred when he fell backwards while on a ladder, resulting in his left knee becoming stuck in a rung of the ladder. The incident caused the tearing of several of the applicant's major knee ligaments, and on June 5, 2006, Dr. Angela Freehill performed arthroscopic reconstruction of his anterior and posterior cruciate ligaments, as well as of his medial collateral ligament. During this time-consuming surgery the applicant's right leg was strapped down too tightly, and he sustained a compression injury to his sciatic nerve that ultimately resulted in the development of complex regional pain syndrome in his right leg. Additionally, the incident caused a low back injury.

The applicant subsequently received treatment from several physicians, but the only one of them to provide permanent disability ratings and restrictions was Dr. Perico Arcedo. Dr. Arcedo completed a WKC-16-B dated August 2, 2007, that found a healing plateau on that date and assessed three percent permanent partial disability to the back, 20 percent to the left knee, and 40 percent to the right leg. He also referred to a physical capacities form that was not entered into the record.

On February 24, 2008, Dr. Arcedo sent a responsive letter to the insurance carrier indicating: "If he [the applicant] has very little muscle deficit with standing, I would adjust his percentage of disability to the right leg to four percent." Then on June 2, 2008, Dr. Arcedo completed a WKC-16, in which he gave the same permanent partial disability ratings for the left knee and the low back, but changed the right leg disability rating to "four percent PPD to the right knee." The commission infers that Dr. Arcedo intended this rating to be four percent to the right leg, not knee. There is no explanation given in Dr. Arcedo's WKC-16 for the dramatic change in his right leg assessment. The WKC-16 also noted permanent restrictions of "10-20 pounds and seldom bend/twist." Dr. Arcedo completed a Worker's Compensation Injury Report dated May 2, 2008, which refers to the applicant's low back pain and restricts the applicant to light work (10-20 pounds) and seldom bending/ squatting/kneeling/crawling. The respondents did not secure a medical opinion.

With no other permanent partial disability or restriction assessments in the record, the administrative law judge looked to clinical statements from another treating physician, Dr. Gizelle Spurgeon, to help resolve the conflict in Dr. Arcedo's opinions. Pursuant to her authority under Wis. Stat. § 102.18(1)(d), the administrative law judge added 5 percent permanent partial disability to the four percent rating given by Dr. Arcedo on June 2, 2008, and awarded nine percent permanent functional disability at the right leg. The applicant's vocational expert, Michael Guckenberg, assessed 35-40 percent loss of earning capacity (LOEC), and the administrative law judge accepted the 35 percent figure. Respondents' vocational expert, Keith Moglowsky, assessed 15-20 percent LOEC. Both Guckenberg and Moglowsky grounded their LOEC assessments on Dr. Arcedo's physical restrictions given on August 2, 2007. Respondents obtained another vocational expert opinion from Steve Lambert, given prior to Moglowsky's opinion, which assessed LOEC at 5 to 10 percent, and also relied upon Dr. Arcedo's physical restrictions given in his WKC-16 of June 2, 2008.

Before the commission, the parties have submitted arguments addressing the question of what should be the proper assessment of right leg permanent partial disability, including physical restrictions. They assume that the resolution of the right leg scheduled disability question should impact upon the assessment of unscheduled permanent partial disability (LOEC). However, a fundamental legal principle of Wisconsin's worker's compensation law is that when one work incident causes both a scheduled injury and an unscheduled injury or injuries, in determining the permanent partial disability award for the unscheduled injury (LOEC), only the disability attributable to the unscheduled injury may be considered. The disabilities attributable to the scheduled injuries, which in applicant's case would be his left knee and right leg, are compensated in total by the scheduled awards for permanency. Langhus v. LIRC, 206 Wis. 2d 494, 503-05, 557 N.W.2d 450 (Ct. App. 1996); Vande Zande v. DILHR, 70 Wis. 2d 1086, 193, 236 N.W.2d (1975).

Therefore, credible medical evidence is needed in this case that separates out only the disability attributable to the applicant's unscheduled back injury. In addition, the vocational experts would then have to provide LOEC assessments that take into account only those restrictions attributable to the unscheduled back injury. The LOEC assessments the vocational experts submitted at the hearing take into account Dr. Arcedo's disability ratings and restrictions attributable not only to the applicant's back, but also to his left knee and right leg. The permanency assessments and physical restrictions found to be attributable to the applicant's scheduled leg disabilities are irrelevant to the assessment of his unscheduled LOEC. Dr. Arcedo's Worker's Compensation Injury Report referred to above and dated May 2, 2008, does give "light work" restrictions attributable only to "LBP, Discogenic back pain." It might have been possible for the vocational experts to have taken note of that document and utilized only the restrictions therein when determining LOEC, but they did not do that. Their opinions rely upon the restrictions assessed for both the scheduled and the unscheduled injuries, as set forth in Dr. Arcedo's WKC-16-B and/or his WKC-16.

Accordingly, the commission concludes that this matter must be remanded to the department for the taking of additional medical evidence that identifies the physical restrictions solely attributable to the unscheduled back injury. The parties shall each have opportunity to present additional evidence regarding this question. Thereafter, new assessments of LOEC should be made, taking into account the physical restrictions solely attributable to the unscheduled back injury.

The parties do not dispute Dr. Arcedo's rating of 20 percent permanent partial disability at the left knee.

The issue of permanent partial disability to the applicant's right leg is disputed, and it is clouded by the inconsistencies and lack of explanation in Dr. Arcedo's opinion. The administrative law judge attempted to make the best of a bad evidentiary record when she found nine percent permanent partial disability at the right leg. However, given the questionable nature of the evidence submitted on that issue, and the fact that the matter must be remanded anyway for additional evidence regarding the issue of LOEC, the commission will exercise its discretion to also set aside the finding of nine percent permanent partial disability at the right leg. The commission will include in the remand an order for additional evidence and new findings regarding the extent of permanent partial disability attributable to the right leg injury. Each of the parties shall also be allowed the opportunity to present additional evidence regarding this issue.

Finally, the hearing record and post-hearing correspondence indicate that the issue of the amount of child support to be deducted from the applicant's compensation requires further attention. This issue shall also be included in the remand order. Because the amount of child support to be deducted will affect the calculation of compensation due, the commission will not at this time order payment of conceded compensation.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are set aside and the matter is remanded to the department for new hearing with regard to all issues as detailed in the above findings. Thereafter, the department shall issue a new decision addressing all issues.

Dated and mailed May 26, 2010
lawregr : 185:5 ND § 5.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Robert J. Gray
Attorney Angela D. McKenzie

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