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


DAVID L BEUTHIEN, Applicant

WEEKLY TIMBER & PULP INC, Employer

AMERICAN MUTUAL OF BOSTON, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1985042866


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 15, 1999
beuthid . wsd : 175 : 5  ND § 5.46  § 8.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the upper tibial osteotomy proposed by Dr. Sim was necessitated by the applicant's conceded work related injury and as such the employer and its insurer are liable for temporary total disability benefits, medical expenses and permanent partial disability, if any, occasioned by such treatment. The employer contends that the administrative law judge should have credited the opinion of Dr. Karr who evaluated the applicant on the employer's behalf. Dr. Karr opined that the upper tibial osteotomy is not recommended and that in the absence of a significant varus deformity, an upper tibial osteotomy directed toward medial compartment narrowing would aggravate and accelerate lateral compartment deterioration. In addition, the employer contends that the applicant has filed no medical opinion that explains the change in Dr. Sim's opinion that the applicant was not a candidate for an upper tibial osteotomy, and that there is no recent medical report that documents medial compartment pain as opposed to patellofemoral problems.

However, the evidence indicates that the applicant suffered a torn medial meniscus as a result of his work injury and underwent a medial meniscetomy in 1985. Dr. DeOrio, one of the applicant's treating physicians, noted as early as October 21, 1992, that the applicant's x-rays showed moderate narrowing of the medial compartment of the right knee and that he was diagnosed with medial compartment degenerative arthrosis of the right knee post-medial meniscetomy. Dr. DeOrio stated in October 1992 that if the applicant has enough discomfort to warrant it he is a candidate for an upper tibial osteotomy in the future to relieve weight bearing on the medial aspect of the knee. Dr. DeOrio stated in April 1994 that he told the applicant in the past that he is a candidate for upper tibial osteotomy when and if his discomfort bothers him enough.

Dr. Sim indicated in a letter dated December 4, 1995 that he did not think that the applicant was a candidate for an upper tibial osteotomy at that time. However, Dr. Sim did not indicate that he was ruling out such a surgery in the future. Subsequent to December 1995 Dr. Sim performed an arthroscopic debridement on April 9, 1997 and determined following such surgery and the applicant's continuing symptoms, that an upper tibial osteotomy was appropriate. It is clear that the applicant's treating physicians had contemplated the upper tibial osteotomy for several years dating back to October 1992. Dr. Sim represented by Winterton noted that the applicant's ongoing symptoms had been refractory to arthroscopic procedures and warranted an advancement to a more substantial procedure.

Dr. Karr contended that the applicant's degenerative condition was related to preexisting osteoarthritis and may have been aggravated by his steroid injections. However, the applicant's steroid injections were for treatment of his right knee injury and therefore any resulting aggravation or degeneration due to the steroid injections would also be related to the work injury. The employer did not have the applicant reexamined by Dr. Karr in 1997 following Dr. Sim's final assessment that surgery was necessary. The commission credits Dr. Sim's assessment that the upper tibial osteotomy was necessary to cure and relieve his work injury given the applicant's ongoing pain and symptoms which had been refractory to arthroscopic procedures.

The employer also contends that the department had no authority to issue a prospective order compelling the employer and insurer to pay for a future medical procedure. However, the issue before the administrative law judge in this case was whether the applicant required an upper tibial osteotomy to cure and relieve his work injury. Both sides presented evidence and physicans' reports on the issue of the need for surgery and the issue was fully litigated. The administrative law judge did not order payment for the surgery but found that the surgery was necessitated by the applicant's work injury and he stated in his order that the employer and its insurer are liable for temporary total disability benefits, medical expenses and permanent partial disability, if any, occasioned by the upper tibial osteotomy.

The issue before the administrative law judge was whether the upper tibial osteotomy was necessary to cure and relieve the effects of the applicant's work injury. The commission has found such orders to be valid in the past in the case of Stidham v. Martin Transport, LIRC decision February 28, 1992, in which the commission noted that a review of the claim and testimony made it clear that a genuine and significant dispute or controversy concerning the applicant's need for cervical surgery was known to exist by the parties and was fully litigated by the parties. The administrative law judge's findings in the Stidham case were similar to the findings of the administrative law judge in the current case and was affirmed by the commission. In our current case it is clear that there was a genuine and significant dispute concerning the need for the upper tibial osteotomy and the issue was fully litigated by the parties. The commission does not find under these circumstances that the administrative law judge issued a prospective order in this matter.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD 

ATTORNEY JAMES G NOWAKOWSKI
HALLING & CAYO SC


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