JASON HELLMICH, Applicant

MENARD INC, Employer

ZURICH AMERICAN INS CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The employer submitted a petition for commission reviewing alleging error in the administrative law judge's findings and interlocutory order dated March 22, 2010. Briefs were submitted by both parties. At issue is the nature and extent of the applicant's disability, the employer's liability for medical expense and the propriety of an interlocutory order, as well as eligibility for temporary total disability benefits for the period of December 11, 2007 to January 29, 2009 and temporary partial disability benefits for the period of December 10, 2007 to April 11, 2008.

The commission has carefully review the entire record in this matter and hereby affirms in part and modifies in part the findings and interlocutory order of the administrative law judge. The commission makes the following:

NOW, THEREFORE, THIS

The administrative law judge's findings of fact and conclusions of law are affirmed except as modified. The matter is remanded to the department to determine the correct amount of temporary total disability the applicant is entitled to for the period between December 11, 2007 and January 29, 2009 due to the fact that the applicant was employed for several weeks within that period of time. The amount for temporary and partial disability between December 10, 2007 and April 11, 2008 was correctly determined by the administrative law judge in the amount of $2,247.84. Upon calculation of the correct amount of temporary total disability benefits an award should be issued in accordance with the ALJ's and commission's findings.

Dated and mailed December 27, 2010
hellmja . wmd : 175 : 9 ND6  6.10

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant is entitled to temporary total disability benefits for 48.5 weeks from December 11, 2007 to January 29, 2009, and temporary partial disability benefits from December 10, 2007 to April 11, 2008, and 5 percent permanent partial disability at the right knee due to the work-related right knee injury on December 10, 2007. The employer states the applicant's MRI following the work incident on December 10, 2007 did not show any breakage warranting a finding of 5 percent permanent partial disability. The employer also points to the fact that Dr. Laing released the applicant to return to work without restrictions in April 2008. However, Dr. Kohli noted at the same time in early April 2008, the applicant had continuing restrictions, although he did not attribute these restrictions to the work incident. The applicant testified Dr. Kohli's restrictions would now allow him to return to his normal work as a yard worker. In addition there was evidence the applicant treated with Dr. Laing in June 2008 for ongoing right knee problems.

The applicant testified to his ongoing pain and restrictions as a result of the work incident. The applicant testified that after Dr. Kohli's examination and report the insurer refused to pay for further treatment at that time in April 2008. The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony of his ongoing pain and restrictions as a result of the work incident. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The evidence is sufficient to establish the applicant continued to be in a healing period through January 29, 2009 as found by Dr. Jayaparakash.

The evidence does not support Dr. Kohli's assessment the applicant suffered a significant injury to his right knee when he slipped on the ice on January 14, 2008. The medical records do not support any ongoing need for treatment or continued swelling beyond a few days subsequent to January 14, 2008. The administrative law judge appropriately noted that Dr. Tolson encouraged the applicant to continue with physical therapy as a result of the six-week old work injury and his restrictions were maintained. On January 22, 2008, approximately one week after the slip on the ice, the applicant testified he returned to his normal physical therapy routine for his work injury shortly after a three-day hiatus due to a slip on the ice on January 14, 2008.

The fact the applicant has not required surgery does not undercut his claim for permanent disability due to the work incident. The applicant testified to his ongoing pain and restrictions as a result of the work incident. Dr. Jayaparakash assessed the applicant with 5 percent permanent partial disability due to his ongoing instability and the need for treatment. The commission credits Dr. Jayaparakash's assessment. Dr. Jayaparakash noted the applicant has a considerable amount of pain and discomfort overlaying the medial aspect and lateral aspect of the patella, and compression test of the patella produces pain and discomfort which is classical from his osteochondral injury to his patella. The applicant testified that he had a prior right knee injury while playing semi-professional football in 2005 leading to MCL surgery in 2006. The applicant testified he returned to his normal strenuous duties following this knee surgery in 2006, and was performing his normal duties on December 10, 2007. The evidence does not indicate the applicant had any ongoing need for right knee treatment at the time of the work incident on December 10, 2007. Based on Dr. Jayaparakash's assessment the commission finds the applicant suffered 5 percent permanent partial disability at the right knee due to the work injury on December 10, 2007.

However, the department awarded the applicant 48.5 weeks of temporary total disability between December 11, 2007 and January 29, 2009. It appears from the record the applicant worked full-time for the employer performing light work between April 8, 2008 and early September 2008, when he was terminated. Therefore the applicant would not be entitled temporary total disability benefits for those weeks while he was working on a full-time basis. The commission remands the matter to the department for calculation of the appropriate amount of temporary total disability benefits due during the period of December 11, 2007 to January 29, 2009 deducting the weeks in which the applicant was employed on a full-time basis.

cc: Attorney Richard A. Fortune
Attorney Scott E. Wade

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