STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN GOLDSWORTHY, Applicant

RUFFALO SPECIAL PIZZA II, Employer

CASUALTY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96052840

The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 10, 1997. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a work injury to his left knee on August 16, 1996, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is September 18, 1977, was employed as a dishwasher for the employer, a restaurant. On August 18, 1996, he slipped at work and hit his head on a fire extinguisher, and then landed on his left knee. He immediately reported a cut on his head to the employer, but did not report any knee injury. The next day his knee was swollen and he called his supervisor and told her about the knee, and that he would not be coming to work. On August 20, 1996, he went to a hospital emergency room and received treatment for the knee injury. He gave a history consistent with his testimony of how the injury occurred.

The applicant received conservative treatment at the hospital and was seen by Dr. James A. Shapiro on August 29, 1996. Dr. Shapiro also took a history consistent with the applicant's description of the injury, and diagnosed a left knee lateral meniscus tear. Dr. Shapiro took the applicant off work "until further notice," in a return-to-work form which appears to have been dated August 29, 1996. An MRI was performed on the knee on September 3, 1996, and it showed horizontal tears in the posterior aspects of the lateral and medial menisci.

The record contains no direct statement from Dr. Shapiro regarding whether or not he recommended surgery, but a letter to Dr. Shapiro from the applicant's attorney dated May 21, 1997 (Applicant's Exhibit B), recounts that Dr. Shapiro's notes indicated that surgery was scheduled for September 20, 1996. The letter goes on to recount that the surgery was canceled because the employer/insurer were disputing the claim and were refusing to pay for it. In a WC-16-B dated May 5, 1997 (Exhibit A), Dr. Shapiro wrote that the applicant never "followed up" with him, and referred the reader to his "only note," which the commission infers is the clinic note of August 29, 1996. Dr. Shapiro indicated that he believed the work incident was directly causative of the applicant's knee injury.

At the insurer's request, Dr. David Haskell examined the applicant on September 23, 1996. He opined that although the work incident as described is consistent with medial and lateral meniscal tears, the applicant's knee symptoms were attributable to patellofemoral chondromalacia unrelated to the work incident. He further opined that the applicant could return to work without restrictions.

The administrative law judge found a work injury to the left knee and awarded additional temporary total disability from October 1, 1996 to May 1, 1997, as well as medical expenses in an interlocutory order. (Temporary total disability was paid under asserted mistake of fact August 19, 1996 to September 30, 1996).

The employer's argument that the knee injury did not occur at work is rejected. The applicant's description of the event is consistent and credible. A co-worker testified that the applicant had telephoned him at work about one week prior to August 18, 1996, and reported an injury to his knee sustained when he slipped on rocks while fishing. However, the applicant credibly testified that he injured his right ankle on this fishing trip, not his knee. The commission agrees with the administrative law judge's credibility determination on this issue of fact.

The employer argues that the additional temporary total disability awarded from October 1, 1996 to May 1, 1997, was not supported by any statement in the record from Dr. Shapiro, who indicated that the applicant had failed to "follow up" with him. The employer also argues that the date the applicant returned to work with a different employer, May 1, 1997, should not have been used by the administrative law judge as a de facto healing plateau. In support of this argument, the employer cites GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 516 N.W.2d 393 (1994) and Larsen Company v. Industrial Commission, 9 Wis. 2d 396, 101 N.W.2d 129 (1960).

The case is not analogous to either GTC Auto or Larsen. In GTC Auto, the injured employe was found by his doctor to have reached a healing plateau, but additional surgery and vocational retraining had both been recommended. The employe did not want the surgery or the retraining, and the employer did not want to pay for the retraining. The administrative law judge, primarily in an attempt to force the applicant into retraining, ordered indefinite payment of temporary total disability until either the surgery took place or retraining was offered. The commission affirmed this order. The court held that the order was improper, because temporary total disability is only available while an employe is still healing. Temporary total disability cannot be used as a penalty for not providing retraining. These facts are unlike the facts of the applicant's case, in which he simply desired a surgery recommended by his physician.

In Larsen, the employe attempted to claim additional temporary total disability for a period which began after healing had ended and after permanent partial disability had been awarded, but which ended before the employe received additional treatment and a recommendation for a second surgery. The court again found that this period, during which the employe was not receiving treatment and not convalescing, was not a healing period. Again, these facts are not analogous to the applicant's case, in which it is inferred that he merely wished to follow Dr. Shapiro's recommendation for surgery to his knee.

However, the employer correctly argues that the record does not contain a statement from Dr. Shapiro, or any other physician, indicating that the applicant was unable to work between October 1, 1996 and May 1, 1997. Dr. Shapiro took the applicant off work "until further notice" on August 29, 1996, but in his May 1997 WC-16-B, Dr. Shapiro declined to give an opinion regarding a healing plateau or temporary total disability, because the applicant had not followed up with him. While it may be that one reason the applicant did not follow up with Dr. Shapiro was the fact that the employer and its insurance carrier were disputing payment of additional medicals, the fact remains that there is no medical opinion of record to support a finding of temporary total disability subsequent to September 23, 1996, the date Dr. Haskell found a healing plateau had been reached. The applicant testified that his knee has "been about the same" since the injury, and the applicant's supervisor testified that work was available for the applicant, even if he had had work restrictions. Given this evidence, it would be speculative for the commission to find that the applicant remained in a healing period subsequent to September 23, 1996. Any temporary disability paid after that date, up to the date of hearing, was paid under mistake of fact.

The parties were also in agreement that they stipulated at the hearing that the only medical expense outstanding was $98.10 due Kenosha Hospital and Medical Center.

In light of Dr. Shapiro's opinion indicating the possibility of surgery, this order will be left interlocutory with respect to the issues of additional disability and medical expense.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The administrative law judge's Findings and Interlocutory Order are affirmed in part and reversed in part. Within 30 days from this date, the employer or its insurance carrier shall pay to Kenosha Hospital and Medical Center the sum of Ninety-eight dollars and ten cents. ($98.10).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: February 10, 1998
goldsjo.wsd : 185 : 8 ND § 5.6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's reversal of the administrative law judge's award of temporary total disability was based on the lack of medical evidence in the record supporting such award. The credibility and demeanor of the hearing witnesses was not at issue.

cc: ATTORNEY MARK P MC GILLIS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY MARGARET G HANRAHAN
HALLING & CAYO SC

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