JEAN ANDERSON, Applicant

NESTLE USA INC, Employer

ILLINOIS NATIONAL INS CO, Insurer

In April 2009, the applicant filed an application for hearing seeking compensation for a left knee injury occurring on April 20, 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 4, 2011, with a close of record on February 15, 2011.

Prior to the hearing, the employer and its insurer conceded jurisdictional facts and an average weekly wage of $654.40. The respondent also conceded permanent partial disability at five percent compared to loss of the left leg at the knee totaling $5,142.50, but paid permanent disability compensation for a 12 percent loss (based on a rating given by the treating surgeon after two meniscectomy surgeries) totaling $12,342, and seeks a credit for the difference. The respondent also paid temporary disability from June 21, 2005 to January 21, 2007. At issue is the nature and extent of disability beyond that conceded, as well as the respondent's liability for medical expenses.

On May 9, 2011, the ALJ issued his decision. Both parties filed timely petitions for review.

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 makes the following:

The applicant injured her left knee(1) on April 20, 2005, when she twisted her knee at work. An MRI done on June 29, 2005 showed a meniscus tear. The applicant underwent a surgery on July 27, 2005, in which Daniel Ladwig, M.D., repaired a meniscus tear. She continued to experience pain and underwent several cortisone injections following that surgery. Based on her continuing symptoms, the applicant underwent another MRI in May 2006. Thereafter, on September 28, 2006, Dr. Ladwig performed a second medial meniscectomy.

The applicant continued to experience pain into 2007. In April 2007, Dr. Ladwig rated permanent partial disability at 12 percent. Worsening pain was noted in August 2007 and the applicant again underwent left knee injections. Because her left knee pain was intractable, a left knee replacement surgery was recommended.

The knee replacement surgery was done by Sidney Schulman, M.D., on March 2, 2009, based on a diagnostic assessment of left knee osteoarthritis. Dr. Schulman wrote a practitioner's report on WKC-16-B, dated March 12, 2010 (Exhibit B). On the form report itself, he marked the causation box indicating the applicant's work injury precipitated, aggravated and accelerated her preexisting progressively deteriorating or degenerative condition beyond its normal progression.

In addition, Dr. Schulman attached a narrative to the practitioner's report in which he opined the applicant's April 20, 2005 injury and the meniscectomy surgery on July 27, 2005, aggravated the applicant's preexisting condition to the degree that the left knee total replacement occurred at an earlier point in time than would have otherwise been necessary. He opined the applicant was in a healing period from the date of surgery, March, 2, 2009, through November 29, 2009, and that it was reasonable to assume the applicant would need further treatment in the future.

The applicant also offered a report from Gary Guten, M.D., who examined the applicant on behalf of the respondent before the second meniscectomy surgery. Dr. Guten's report is dated June 10, 2005 (Exhibit A). While Dr. Guten did not recommend that the applicant undergo the second meniscectomy surgery, he did opine the applicant had preexisting osteoarthritis, which was asymptomatic, and most likely aggravated by the first meniscectomy surgery. He specifically stated that the applicant's symptoms were not simply due to the manifestation of a preexisting condition unrelated to her work injury.

The respondent retained a second medical examiner after the applicant underwent the knee replacement surgery. This doctor, Michael W. Orth, M.D., opined that while the applicant's April 20, 2005 work injury caused her to need an arthroscopic procedure to her left knee on August 3, 2005, the injury:

resolved so that on December 5, 2005, she was able to return to work. She did her regular job until May 16, 2006, and then she went back to Dr. Ladwig complaining of more left knee pain.

Dr. Orth went on to opine that the second meniscectomy done in September 2006 was undertaken to repair tearing that was a mere manifestation of her preexisting degenerative condition from before the work injury. He likewise opined that the need for the left knee replacement surgery, which he agreed was required, was due simply to the manifestation of the preexisting condition and not the work injury.

The commission, like the ALJ, credits Dr. Schulman's opinion that the applicant's need for a left knee replacement surgery was due to the April 20, 2005 work injury and her prior surgical treatment for that injury. As the ALJ noted, Dr. Orth's opinion that the applicant's symptoms had fully resolved as of November 30, 2005, is inconsistent with her credible testimony about continuing pain. Indeed, the applicant continued to treat from December 2005 to February 2006, and again (after a hiatus in treatment while her husband was dying from leukemia) from May 2006 onward.

The next issue is the nature and extent of disability.

The commission credits Dr. Schulman's opinion that the applicant was temporarily disabled and in a healing period due to the left knee replacement surgery from the date of surgery, March, 2, 2009, through November 29, 2009. However, as noted above, the applicant had a prior, separate right knee injury, for which she underwent a right knee replacement. On July 28, 2011, the commission affirmed a decision by ALJ Andrew Roberts awarding temporary total disability for the right knee for the period from July 27, 2009 through November 29, 2009. This overlaps, to some extent, the March 2 through November 29, 2009 healing period for the left knee now at issue.

The commission has previously recognized that a worker may not be more than totally disabled. Podolak v. United Enterprises LTD, WC claim no. 1997-031074 (LIRC, December 18, 2004).⁽²⁾ While the Podolak decision dealt specifically with permanent total disability, the same rationale applies to temporary total disability. If a worker collects temporary total disability compensation from one injury, he cannot collect temporary total disability compensation from another injury for the same period. On appeal, the respondent asks that the portion of ALJ Smith's order that awards temporary total disability benefits from July 27 through November 29, 2009, be eliminated. The commission agrees.(3)

The applicant is therefore entitled to compensation for temporary total disability for the period from March 2 through July 26, 2009, a period of 21 weeks, at the weekly rate of $495.79 (based on two-thirds of the average weekly wage of $654.40, as escalated for renewed temporary disability under Wis. Stat. 102.43(7)), totaling $10,328.86. However, a post-hearing letter from the respondent's attorney to ALJ Smith dated January 14, 2011, documents net sickness/short-term disability benefits totaling $5,848.12⁽⁴⁾ during the March 2 through July 26, 2009 period, for which the payor of the sickness/short-term disability benefits shall be reimbursed under Wis. Stat. § 102.30(7). The amount awarded for temporary total disability under this order, then, is $4,480.74.

The next issue is the extent of permanent partial disability. The administrative code provides for a minimum permanent disability rating for a prosthetic knee at 50 percent. Wis. Admin. Code § DWD 80.32(4). In this case, ALJ Smith, held that the employer should get a credit for the prior 12 percent paid for the meniscectomies against the 50 percent awarded for the left knee replacement. Thus, he awarded only 38 percent in additional permanent partial disability.

Since ALJ Smith issued his decision, the court of appeals in MG&E v. LIRC and Dave Parent, 2011 WI App 110, 34, __ Wis. 2d __, 801 N.W.2d 821, has upheld the commission's interpretation of Wis. Admin. Code § DWD 80.32(4) to "permit 'stacking' of surgeries to the knee necessitated by the same work injury, even when the second surgery is a total knee replacement." In other words, as in MG&E, the applicant in this case is entitled to compensation for permanent partial disability at 50 percent compared to loss of the leg at the knee, without deduction for the permanent partial disability paid for the prior meniscectomy surgeries.(5) In accordance with its past practice and the MG&E decision, then, the commission shall award the applicant compensation for an additional 50 percent compared to loss at the knee, without deduction. The applicant is thus entitled to 212.50 weeks of permanent partial disability compensation, payable at the weekly rate of $242 (the statutory maximum for injuries in 2005), totaling $51,425. As of November 8, 2011, 169.333 weeks of permanent partial disability totaling $40,978.67 have accrued; 43.1667 weeks totaling $10,446.33 remain unaccrued.

The applicant agreed to the direct payment of an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order. The future value is thus $11,181.15 {0.20 times ($4,480.74 plus $51,425.00)}. However, the portion of the fee attributable to the unaccrued portion of the award is subject to an interest credit for advance payment of $43.73, leaving a present value fee of $11,371.42. That amount, plus costs of $66.06 shall be paid to the applicant's attorney in 30 days.

The amount due to the applicant within 30 days is $36,301.47, which equals the sum of the temporary total disability ($4,480.74) plus accrued permanent partial disability ($40,978.67), less the fee thereon ($9,091.88) and less attorney costs ($66.06). The amount remaining to be paid to the applicant as it accrues after November 8, 2011, is $8,357.06, which equals the unaccrued permanent partial disability ($10,446.33), less the fees thereon ($2,089.27). The remaining amount shall be paid in monthly installments of $1,048.67 beginning December 8, 2011.

The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury documented at Exhibit D as follows: from Mercy Hospital, $65,055.01, of which $365.86 was paid by the applicant(6), $52,239.57 was paid by United, $12,360.29 was disallowed, and $89.29 remains unpaid; and from MHS Physician Service $14,361.70, of which $486.67 was paid by the applicant, $5,631.84 was paid by United, $8,019.37 was disallowed, and $223.82 remains outstanding.

Dr. Schulman credibly opined that the applicant may need further treatment for the work injury. Accordingly, this order shall be left interlocutory to permit orders and awards for additional disability and medical expense as may arise in the future.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, the sum of Thirty-six thousand three hundred one dollars and forty-seven cents ($36,301.47) in disability compensation and Eight hundred fifty-two dollars and fifty-three cents ($852.53) in out-of-pocket medical expense.
2. To the applicant's attorney, the sum of Eleven thousand one hundred thirty-seven dollars and forty-two cents ($11,137.42) in fees and Sixty-six dollars and six cents ($66.06) in costs.
3. To Mercy Hospital, Eighty-nine dollars and twenty-nine cents ($89.29) in medical treatment expense.
4. To MHS Physician Service, Two hundred twenty-three dollars and eighty-two cents ($223.82) in medical treatment expense.
5. To United, Fifty-seven thousand eight hundred seventy-one dollars and forty-one cents ($57,871.41) in reimbursement of medical expenses paid.
6. To the payor of sickness/short-term disability benefits, Five thousand eight hundred forty-eight dollars and twelve cents ($5,848.12).

Beginning on December 8, 2011, and continuing on the eighth day of each month thereafter, the employer and its insurer shall pay the applicant the sum of One thousand forty-eight dollars and sixty-seven cents ($1,048.67) per month, until the additional amount of Eight thousand three hundred fifty-seven dollars and six cents ($8,357.06) in permanent disability compensation has been paid.

Jurisdiction is retained for further orders and awards as are warranted and consistent with this decision.

Dated and mailed
October 31, 2011
anderje . wrr : 101 : 9 ND6 6.9; 6.19

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Because its modifications to the ALJ decision do not depend on witness credibility or demeanor, no credibility conference with the ALJ was held.

cc: Attorney James A. Meier
Attorney Douglas M. Feldman

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(1)( Back ) The applicant injured her right knee in an entirely separate injury in 2008. The right knee injury is relevant only because the applicant was temporarily disabled from the right knee injury at the same time as her left knee injury, as discussed below.

(2)( Back ) In Podolak, the commission noted Professor Larson's observation: "There is both a theoretical and a practical reason for the holding that awards for successive or concurrent permanent injuries may not take the form of weekly payment than the weekly maxima for total disability. The theoretical reason is that, at a given moment in time, a person can be no more than totally disabled. The practical reason is that if the worker is allowed to draw weekly benefits simultaneously from a permanent total and permanent partial award, it may be more profitable for him or her to be disabled than to be well." 5 Larson's Workers' Compensation Law 92.01[1] (MB, 2001).

(3)( Back ) The commission generally declines to "correct" ALJ awards based on payments made--or asserted to have been made--after the hearing. Here, the commission's July 28, 2011 affirmance of the right knee decision was entered after ALJ Smith issued his decision on the left knee now at issue in May 2011. However, since the applicant does not raise any arguments against eliminating the double payment of temporary total disability, the commission modified the ALJ's order to eliminate the payment in this case.

(4)( Back ) This is the $6,069.71 net figure given in Mr. Feldman's letter, less a net payment of $221.59 in nonindustrial disability benefits for week of July 27 to August 2, 2009, the last week in which the non-industrial disability benefits were paid. See page 14 of the printout attached to Mr. Feldman's letter. The commission's consistent past practice has been to use the pre-tax or gross amount of the nonindustrial disability payments. Holborn v. Supervalue, Inc., WC Claim No. 2000009429 (LIRC August 15, 2001); Hetchler v. EC Styberg Engineering Co., Inc., WC claim No. 2000-027319 (LIRC August 28, 2003). See also: Krumnow v. Cintas Corp, WC Claim No. 2006-016493 (LIRC July 16, 2009) and Neal & Danas, Worker's Compensation Handbook 6.13 (6th ed., 2010). In this case, however, the ALJ's hearing synopsis indicates the parties stipulated to use of the net amount of the payments.

(5)( Back ) In making this award, the commission adopts as reasonable Dr. Ladwig's 12 percent rating following the meniscectomy surgeries for which the respondent has already paid compensation as outlined above.

(6)( Back ) The commission's reading of the attachments to Exhibit 4 suggests that the applicant's figures on the Medical Treatment Statement inadvertently included $88.15 paid by United as an out-of-pocket payment by the applicant.

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