JEAN C ANDERSON, Applicant
NESTLE USA INC, Employer
ILLINOIS NATIONAL 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. 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.
Dated and mailed
July 28, 2011
anderso.wsd:101:5 ND6 3.38; 6.19
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant claims disability from a right knee injury occurring on August 11, 2008, when she caught her foot on a floor mat and twisted her right knee while carrying cases of product. She subsequently underwent both a surgical meniscectomy and right knee replacement surgery. The employer and insurer (collectively, the respondent) conceded an injury on that date, but contend that it did not cause the additional disability now claimed by the applicant and, indeed, that disability compensation it had previously paid for the injury was paid by mistake of fact.
The ALJ found for the applicant. His decision indicates that he found credible the applicant's testimony that she had no problem with her right knee before August 11, 2008 and that she had not undergone treatment for her right knee before that injury. He also credited her testimony that her right knee symptoms progressed after the injury, and awarded her the temporary and permanent disability compensation claimed.(1)
The respondent argues that there is legitimate doubt as to whether the applicant's August 11, 2008 work accident led to the need for her surgery and resulting disability. On this point, the respondent noted that Dr. Guten opined that the applicant suffered from degenerative osteoarthritis of her right knee before the injury, that the MRI showed a false positive tear because it also showed degenerative arthritis, and that the conclusion that the MRI showed a false positive was bolstered by the fact that the meniscectomy did not relieve her right knee symptoms.
However, the commission agrees with the ALJ's decision. The applicant's preexisting arthritis in the right knee is not inconsistent with Dr. Schulman's opinion that the August 11, 2008, injury precipitated, aggravated and accelerated the preexisting degenerative condition beyond its normal progression. Simply pointing to a preexisting condition, whether caused by arthritis or otherwise, does not mean a subsequent injury involving that preexisting condition is not compensable. Wisconsin follows an "as is" rule under which employers take their employees as they are, predisposition to injury from a pre-existing condition and all. The supreme court has stated that if work causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). See also: Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971).
The applicant testified credibly to the ALJ that her right knee was asymptomatic prior to the August 2008 work injury, but continuously symptomatic thereafter. Dr. Guten speculated that there may have been prior right knee treatment, but the record does not document any. The commission recognizes that the applicant likely had asymptomatic arthritis in her right knee before the work injury. However, the commission is persuaded that the work injury caused that condition to become symptomatic, making necessary the surgical treatment and causing the disability as claimed.
cc:
Attorney James A. Meier
Attorney Douglas Feldman
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]
uploaded 2011/09/28