KIMBERLY KUEHL, Applicant
MADISON AREA TECHNICAL COLLEGE, Employer
UNITED WISCONSIN, Insurer
Respondents Madison Area Technical College and United Wisconsin, as well as the applicant, submitted petitions for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 10, 2010. Briefs were submitted by the parties. At issue are whether or not on September 28, 2008, the applicant sustained a left knee injury arising out of and in the course of her employment with the employer. If a compensable injury is found, then the issues of nature and extent of disablity and liability for medical expense also arise.
The commission has carefully review the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:
Delete the sentence that begins in the fourth line from the bottom of page 7 of the administrative law judge's decision, and continues through the second line of page 8 of his decision, and substitute the following two sentences therefor:
"Considering the applicant's relatively good recovery from her knee surgery, but also her ongoing symptoms that increase with activity, Dr. Karr's assessment of five percent permanent partial disablity at the knee is found credible. This equates to 21.25 weeks of compensation due at the applicable rate of $272.00 per week for a total of $5,780.00."
Delete the administrative law judge's INTERLOCUTORY ORDER, and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge, are modified to conform with the foregoing, and as modified are affirmed.
Within thirty days from this date, respondents shall pay to Kimberly Kuehl, the applicant, Six thousand five hundred sixteen dollars and sixty-one cents ($6,516.61) in primary compensation, and Eight thousand six hundred sixty-nine dollars and thirty-seven cents ($8,669.37) as reimbursement for expenses that she paid; to Charles M. Soule, her attorney, the sum of One thousand seven hundred four dollars and ninety-six cents ($1,704.96) in attorney's fees, plus Three hundred and three dollars and twenty-five cents ($303.25) as reimbursement for reasonable costs; to Blue Cross & Blue Shield as reimbursement for relevant expenses it has paid, the sum of Two hundred forty-eight dollars and fifty-eight cents ($248.58); to UW Health-Medical Foundation, the sum of Twelve thousand three hundred dollars ($12,300.00); to Columbus Community Hospital, the sum of One thousand four hundred sixty-one dollars ($1,461.00); to the University of Wisconsin Hospital, the sum of Twenty-four thousand eight hundred forty-three dollars and eighty-two cents ($24,843.82); and to Kinex Medial Company, the sum of Three hundred thirty-four dollars and seventy-four cents ($334.74).
Jurisdiction is reserved for such further findings and orders as may be necessary.
Dated and mailed
May 24, 2011 (as modified June 14, 2011)
kuehlki . wmd : 185 : 1 ND6 §§ 3.35 ; 6.26
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
Laurie R. McCallum, Commissioner
Respondents assert that the work incident of September 28, 2008, constitutes an "idiopathic turn," and thus any knee injury sustained by the applicant was due to forces solely personal to her and not compensable. Alternatively, respondents assert that the work incident constituted a noncompensable manifestation of a preexisting degenerative knee condition. The commission rejects both of these arguments.
As the applicant turned to begin walking on September 28, 2008, the forces exerted on her left knee constituted normal exertive activity. However, such activity may cause a compensable injury if it results in "breakage." See Lewellyn v. ILHR Department, 38 Wis. 2d 43, 55, 955 N.W.2d 678 (1968); and Brown v. Industrial Commission, 9 Wis.2d 555, 569-70, 101 N.W.2d 788 (1960). In such instances the injury is causally related to the work activity and is compensable. It is not a preexisting injury nor is it an idiopathic injury. Dr. Baer credibly opined that the applicant's turning of her knee caused a displacement of the preexisting osteochondritis dissecans (OCD) lesion, resulting in a compensable left knee injury and necessitating the surgery of December 12, 2008. Dr. Baer's opinion plainly describes a breakage.
Dr. Karr opined that the applicant's left knee problem was due to normal progression of her preexisting degenerative condition, but at the same time he acknowledged that the applicant may have experienced "some loosening of the preexisting OCD lesion . . . without frank displacement." The applicant's symptom onset was pronounced and coincident with the work incident, supporting the inference that Dr. Baer's opinion is credible. It should also be noted that Dr. Karr opined that what he described as "activities of daily living" are "inherently noninjurious to knee anatomy or function." Dr. Karr appears to believe that no normally exertive activity could ever injure a knee, even one burdened by a preexisting degenerative condition, but the commission finds this opinion incredible. Such opinion is also contrary to Wisconsin law as set forth in Lewellyn and Brown (supra).
Dr. Self opined that it was "unclear" when the OCD fragment displaced, but it was "more likely than not" sometime after the work incident of September 28, 2008. This opinion is not only equivocal, but again inconsistent with the applicant's symptom onset of September 28, 2008.
With regard to the commission's modification of the permanent partial disablity award, the commission found that Dr. Karr's five percent assessment was credible. In Manitowoc County v. ILHR Department, 88 Wis. 2d 430, 439-40, 276 N.W.2d 755 (1979), the court affirmed the commission's finding of 25 percent permanent partial disability (PPD), where one physician of record had provided an "estimate" of 20 to 25 percent PPD, and two other physicians had provided respective opinions of 50 percent and zero percent PPD. The court noted that the 20-25 percent estimate "could have been stated with greater precision," but that it represented a valid medical opinion. In its decision, the court referred to Chequamegon Forest Products v. Industrial Commission, 7 Wis. 2d 487, 96 N.W.2d 706 (1959), wherein the court affirmed the commission's finding of a 7 and one-half percent PPD, derived from a medical opinion that the injured worker had sustained PPD "of between 5 and 10 percent." Id. at p. 493. While these cases demonstrate that the commission may exercise its fact-finding authority by assessing percentages of permanency reasonably within the range of the medical opinions of record, they do not provide authority for assessments completely outside the range provided by such medical opinions.
In
Daimler Chrysler c/o ESIS v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727
N.W.2d 311, the court did allow and affirm the commission's assessment of a PPD
rating that was in excess of the highest medical assessment in the record. Id.
at pp. 28-31. The court also noted that Wis. Stat. 102.18(1)(d), provides a
presumptive range for assessing PPD,(1) but that the statute does not preclude a finding outside that range if supported by credible evidence. Id. at pp. 28-29. The Daimler Chrysler court allowed an assessment completely outside the range provided by the physicians of record because the facts of that case required the commission to apply an administrative code rule resulting in an assessment outside such range. In the case at hand, there is no administrative code rule requiring an assessment outside the range provided by the physicians' opinions of record, nor does the commission find a reasonable basis for fixing a PPD assessment outside that range (Dr. Baer assessed 10 percent PPD, Dr. Karr assessed 5 percent PPD, and Dr. Self did not offer any assessment of PPD).
cc:
Attorney Charles Soule
Attorney James Nowakowski
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