JON H RIESEN, Applicant
GRUNAU CO INC, Employer
ZURICH AMERICAN INSURANCE 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. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
March 30, 2011
riesejo.wsd:185:5 ND6 9.14
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
The commission carefully reviewed the extensive record in this matter, and ultimately came to the same conclusions as the administrative law judge regarding the issues of causation for both the applicant's left knee and right knee conditions attributable to the work injury of October 26, 2005. The commission adopts the findings of the administrative law judge, but herein will highlight certain relevant facts.
First, Dr. Guten saw the applicant at respondents' request in January of 2006, and opined that the work incident aggravated, accelerated, and precipitated the applicant's preexisting right knee condition beyond normal progression.
Second, Dr. Stiehl examined the applicant at respondents' request on June 26, 2006, and in his report dated June 28, 2006, indicated:
"The individual fell on October 26, 2005, sustaining an anterior cruciate ligament and medial meniscus injury to the right knee."
Dr. Stiehl also reviewed the results of a left knee MRI performed in June of 2006, and opined:
"It is apparent as well that he caused or aggravated a medial meniscus tear to his left knee as a result of the October 26, 2005 incident ... The torn medial meniscus of the left knee is directly related to the
October 26, 2005 incident."
Dr. Stiehl went on to assess five percent permanent partial disability to the left knee as a result of the work incident, but indicated that "it is not apparent" and that "I would say no" to the question of whether the preexisting left knee degenerative arthritis was aggravated beyond normal progression by the work injury.
When Dr. Stiehl examined the applicant again on March 29, 2007, he opined that the 2006 left knee MRI "did not show any evidence of acute injury," and attributed the proposed need for a left knee hemi-arthroplasty solely to the applicant's preexisting degenerative knee condition. Dr. Stiehl assessed 10 percent permanent partial disability to the right knee, "which includes treatment for the medial meniscus condition as well." He also found a healing plateau had been reached for the work-related right knee injury on December 7, 2006, but failed to distinguish between the work-related and non-work-related elements of his permanent partial disability assessment, assuming he believed there was such a distinction.
On August 20, 2007, Dr. Stiehl submitted a supplemental report citing the fact that he had been able to review the results of a right knee MRI performed on July 10, 2004, and he believed that MRI showed a more severe preexisting condition than he had previously appreciated. He thereupon opined that the right knee anterior cruciate ligament condition was not causally related to the October 2005 work incident, but that the right knee medial meniscus tear was. He reduced his permanent partial disability assessment at the knee from 10 percent to 7 percent. He attributed the seven percent to "...the aggravation for a torn medial meniscus and for a low grade aggravation of the preexisting, degenerative arthritis that would have been known to be present in his knee at that time." He also wrote:
"...nor do I attribute the medial compartment degenerative arthritis to the work incident of October 26, 2005."
Finally, on January 20, 2009, Dr. Stiehl reexamined the applicant and submitted an evaluation in which he opined that the left knee arthroplasty performed on April 6, 2007, was not causally related to the October 2005 work injury. He also wrote:
"There is no suggestion that this individual had significant problems with his left knee that were caused by aggravation, acceleration and precipitation by the incident of October 26, 2005."
However, in a separate section of this report he reiterated his previous diagnosis of a work-related aggravation of the left knee medial meniscus tear.
Dr. Stiehl's ultimate opinion regarding the applicant's left knee appears to be that the work injury was causative of the medial meniscus repair surgery performed on July 6, 2006, and that the work injury caused a five percent permanent partial disability, but that the work injury did not precipitate, aggravate, and accelerate beyond normal progression the applicant's preexisting left knee degenerative arthritic condition. The commission finds credible Dr. Sullivan's opinion that the work incident caused a permanent aggravation of the left knee condition beyond normal progression, and materially contributed to the need for the left knee arthroplasty performed on April 6, 2007.(1) Dr. Sullivan credibly noted that the applicant's left knee condition and ability to work never returned to baseline after the work incident of October 26, 2005, and Dr. Stiehl's opinion that the permanent injury to the left knee meniscus had no causal relationship to the subsequent need for a partial left knee replacement is not credible.
Respondents assert that Dr. Sullivan was not fully aware of the extent of the applicant's preexisting right knee problems. However, the applicant credibly testified that he provided Dr. Sullivan with a full, verbal history of his right knee condition, together with copies of his prior right knee MRI reports. Additionally, Dr. Sullivan's opinion appropriately places more emphasis on the substantial changes in the applicant's knee conditions that manifested themselves contemporaneously with the October 2005 work incident, rather than to preexisting conditions which had not recently interfered with the applicant's ability to work. In fact, the applicant had not received medical treatment for either knee for 15 months prior to October 26, 2005.
Dr. Stiehl's opinion regarding the applicant's right knee condition undergoes significant transformation in his series of reports. Ultimately, he appears to assess some permanent partial disability to the knee that he attributes to the work-related meniscus tear, but attempts to distinguish this permanent injury from any permanent aggravation of the applicant's preexisting right knee condition. The commission finds Dr. Sullivan's opinion to be much more consistent with the reality of the effects of the October 2005 work incident on the applicant's right knee.
Respondents urged the administrative law judge and now urge the commission to "draw a negative inference" from the fact the applicant refused to provide authorization for access to his social security disability file. Respondents subpoenaed the Social Security Administration for access to the file, but that agency refused to comply with the subpoena.
The commission believes that the purposes of the Worker's Compensation Act are best served by the free flow of relevant information between the parties, including access to social security disability files, particularly when the information in the file relates only to the medical condition allegedly attributable to the work injury. However, there is no provision in the statutes or administrative code requiring an applicant to authorize access to the social security disability file absent a direct order to that effect from the department or the commission. The department has authority to issue such an order at a pre-hearing conference pursuant to Wis. Stat. § 102.17(1)(d), or at a hearing pursuant to Wis. Stat. § 102.18(2). Use of the term "may" in these statutes makes such orders discretionary.
The record before the commission is incomplete with respect to the extent of respondents' efforts to obtain such an order from the department, except that it is clear that the administrative law judge considered this issue at the hearing, but failed to allow access to the file or to address the issue in her decision.(2) The commission therefore reviewed respondents' request under the discretionary standard and determined that it will not order a remand to access the file in this particular case. The primary reason for this denial is the fact that the voluminous medical records in the case lead to the inference that there has been a full medical accounting of the issues from both sides of the dispute, and there is no indication that the applicant received any significant, relevant medical treatment or assessment beyond what is catalogued in the hearing evidence. Respondents have not identified any credible reason why they believe there may be significant evidence in the social security disability file that is not already in the hearing record. Additionally, respondents have not identified what "negative inference" they would expect the commission to draw due to the applicant's refusal to allow access to the file. Given the evidence of record, it would be extremely speculative for the commission to dismiss any part of the applicant's claim based solely on such refusal.
cc:
Attorney Israel Ramon
Attorney David Kania
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