P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KEN RUNDE, Applicant



Claim No. 91041473

The employer/insurer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 31, 1995. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury to the applicant's right knee.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and substitutes the following therefor:


The applicant, whose birthdate is August 5, 1939, was employed by the employer as a maintenance supervisor. On June 15, 1990, he stepped on a rod and twisted his right knee. This caused his knee to become swollen and sore, eventually resulting in a right total knee replacement performed by Dr. Cairns on June 24, 1991. Dr. Cairns is an orthopedic surgeon. The surgery had an excellent result, although the applicant testified that he can no longer squat, kneel, run or jump. On November 2, 1992, the applicant underwent a left total knee replacement which was due to degenerative deterioration of the joint. He is currently back to work at his regular job.

In April 1986, the applicant had seen Dr. Piasecki with complaints over the previous year of increasing right knee difficulty, including occasional swelling and difficulty getting into a deep knee bend position. Dr. Piasecki diagnosed degenerative arthritis of the knee. On July 16, 1986, Dr. Piasecki performed arthroscopic surgery which was primarily diagnostic, but included shaving of the synovia and some frayed edges of the anterior horn of the medial meniscus. The arthroscopy revealed degenerative changes but no tears. Dr. Piasecki's clinic notes dated July 19, and July 25, 1986, record that the applicant experienced excellent relief of his knee pain subsequent to the arthroscopy, and had excellent range of motion of the knee. On July 25, 1986, Dr. Piasecki advised the applicant to return if he had problems, but the applicant did not return. He had no limitations with his knee prior to sustaining the work injury.

At the employer's request, Dr. Bartlett, an orthopedist, examined the applicant on October 26, 1993. Dr. Bartlett indicated that he had submitted a previous report concerning the applicant in August 1991, but that report is not in the record. In his 1993 report, Dr. Bartlett opined that the work injury directly caused the applicant's disability, which he listed at 40 percent permanent partial disability. However, he noted that the applicant's left knee had deteriorated on its own to the point of requiring total replacement. This led him to opine that had the work injury never occurred to the applicant's right knee, it too would have degenerated on its own to the point of requiring total replacement. He also noted that Dr. Piasecki found considerable degenerative changes in the right knee in the 1986 arthroscopy. On these bases, Dr. Bartlett apportioned three fourths of the applicant's right knee disability to preexisting degenerative changes. He originally wrote that this meant 15 percent permanent partial disability was due to the preexisting changes, but in a supplemental report dated April 25, 1994, he corrected the percentage to 30 percent.

In the petition, the employer argued (1) that the applicant has not presented credible medical evidence concerning his permanent restrictions; (2) that the applicant failed to carry his burden of proof to show a 40 percent permanent partial disability to his right knee as a result of his surgery, because Dr. Cairns did not "parcel out" the disability between preexisting problems and the work injury; and (3) Dr. Bartlett's apportionment is credible, because when the applicant first saw Dr. Cairns on August 16, 1990, he told Dr. Cairns that he never really got much relief from the 1986 right knee surgery. With regard to the first argument, there is no dispute that the right knee arthroplasty was one of the direct results of the June 1990 work injury. Dr. Bartlett opined that at some point the applicant's preexisting degenerative changes probably would have resulted in a right knee arthroplasty, but he agreed that it was the work injury which did necessitate that the right knee arthroplasty be performed on June 24, 1991. Pursuant to the administrative code (Ind 80.32 (4)), the minimum permanent partial disability for such surgery is 40 percent, even with excellent results such as the applicant has had to date. The applicant was not required to show any limitations from the surgery in order to present his claim for 40 percent permanent partial disability. It should not be necessary to point out that the 40 percent minimum rating takes into account the fact that a total knee replacement is bound to provide some limitations, if not initially then over the years. With regard to the second and third arguments, there is no question that the applicant had preexisting degenerative changes in his right knee prior to the surgery; however, a preexisting degenerative condition or weakness in the body does not in itself establish a permanent disability of a compensable nature. Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 527, 184 N.W.2d 871 (1971); M. & M. Realty Company v. Industrial Commission, 267 Wis. 52, 65, 64 N.W.2d 413 (1954). Dr. Cairns opined in his clinic note of May 3, 1993, that he would rate the applicant's "permanent physical impairment as a consequence of his work-related accident as 20 percent of the lower extremity." (Emphasis added). On December 9, 1994, he noted that he had not used a Wisconsin rating system when he assessed 20 percent of the lower extremity, and it should be 40 percent at the knee. He went on to say that he did not believe that it was possible to accurately apportion a percentage to delineate between preexisting disability and the work related incident. The reasonable inference from this evidence is that Dr. Cairns attributed all the disability which he rated to the work injury. Dr. Cairns' history, in which he reported the applicant as saying that he never really got much relief from the 1986 surgery, indicates that the applicant's right knee was not completely asymptomatic prior to the work injury. However, it is clear from Dr. Piasecki's notes that there was excellent relief after the 1986 arthroscopy, and the applicant was working with no record of treatment between 1986 and the 1990 work injury. There was no medical assessment of permanent disability prior to the work injury. Dr. Bartlett's apportionment of 75 percent of the disability to the preexisting condition represents a misunderstanding of the law. The applicant had no medical limitations prior to the work injury, so to assess 75 percent of the disability attributable to the work-related surgery to the preexisting condition is legally inaccurate. The applicant probably would have eventually required right knee replacement without the work injury, but that is legally irrelevant, because even Dr. Bartlett conceded that the work injury directly caused the surgery. The employer takes its employes "as is." M & M Realty Company v. Ind. Comm., 267 Wis. at 63.

Accordingly, the applicant is entitled to permanent partial disability of 40 percent at the right knee which is the equivalent of 170 weeks of compensation at the applicable rate of $131 per week, for a total of $22,270. The insurer previously paid $11,135 in permanent partial disability, leaving a balance due of $11,135. A twenty percent attorney's fee shall be subtracted from the balance in the amount of $2,227.

Jurisdiction will be reserved as the applicant may incur additional disability and/or medical expense.



Within 30 days from this date, the employer or its insurer shall pay to the applicant compensation in the amount of Eight thousand nine hundred eight dollars ($8,908); and to the his attorney, John Baxter, fees in the amount of Two thousand two hundred twenty-seven dollars ($2,227).

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

Dated and mailed June 23, 1995
ND 3.37

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

NOTE: The commission's decision constitutes an affirmance of the administrative law judge's ultimate findings. The commission rewrote the decision in order to detail its analysis of the matter in relation to the arguments made in the petition for commission review.



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