Wis.LIRC WC Decision: Rausch - January 24, 2000 - ND � 5.18 - Schedule Injury - Permanent disability - right to compensation determined by law in effect at the time of injury - rule applicable to changes in minimum disability ratings under Wis. Admin. Code � DWD 80.32 after the date of injury - even after date of surgery to repair injury

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

KATHLEEN F RAUSCH, Applicant

VILLAGE OF THIENSVILLE, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1989075092

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1935. She is five foot, four inches, and weighs about 200 pounds. She has worked on-and-off as a part-time replacement medical assistant for a temporary help service for the past 10 years. She also was a volunteer fire fighter for the employer. This case arises from a knee injury sustained by the applicant in her capacity as a volunteer fire fighter in 1989.

Specifically, the applicant injured her right knee on Saturday, May 27, 1989, when she entered a rescue squad to respond to a call. She explained that getting into the squad involved going up two steps, and the first step is over two feet off the ground. As she stepped into the squad, she heard a loud "pop," felt excruciating pain, and her knee locked.

The applicant was able to respond to the call, and there were no other calls that day. The applicant sought treatment at a hospital emergency room the next day, May 28, 1989.

The doctor who treated her, Dennis Pulito, M.D., noted a twisting injury to the knee the prior winter with some discomfort and swelling. With respect to the injury at issue, he noted pain and discomfort in the right "while attempting to do daily activities and step up." He noted some range of motion from full extension but no flexion past 20-30 degrees, but also a "locked" knee. An x-ray showed mild osteoarthritis. The doctor wanted to do arthroscopic surgery for evaluation.

The applicant decided to go ahead with the surgery. Accordingly, on June 2, 1989, Dr. Pulito performed arthroscopy on a diagnosis of history of locked right knee. The arthroscopy showed minor tears of the medial meniscus with degenerative tears and traumatic and degenerative osteoarthritis.

During the surgery, the doctor noted chondromalacia (degenerative softening of cartilage) over the patella. Extensive degenerative changes were noted in the area of the medial meniscus and medial femoral condyle. Cartilage came off the area in chunks, and the doctor noted grade II, III and IV degenerative changes throughout the area of the medial femoral condyle. The doctor did a partial medial meniscectomy and extensive arthroplasty to aid in the function of the joint.

The applicant underwent physical therapy. She was able to return to work within a few days of the surgery, but did not return to "squad duty" until August 1989. Dr. Pulito noted continued occasional buckling in August 1989, and difficulty kneeling, crouching, etc., in September 1989.

By November 22, 1989, Dr. Pulito noted the applicant was working full duty as a medical technician, and on limited duty as a paramedic. He anticipated she would be able to return to full paramedic duty in six months. Noting complaints of "a little stiffness" and "occasional swelling by the end of the day," Dr. Pulito rated permanent partial disability at fifteen percent compared to loss of the leg at the knee. He apportioned it as follows:

> Five percent for pre-existing osteoarthritis.
> Five percent for traumatic arthritis from the May 27, 1989 work injury.
> Five percent for the medial meniscal tear from the May 27, 1989 work injury.

See Exhibit 5. The employer conceded and paid permanent partial disability at ten percent compared to loss of the leg at the knee, or 42.5 weeks at $125 per week totaling $5,312.50.

In January 1990, the applicant called Dr. Pulito's office, complaining of what the doctor described as very typical osteoarthritic components. Noting continuing symptoms, Dr. Pulito wanted to do an MRI in May 1990. This showed changes to the meniscus, which he described as grade 2, rather than grade 4. He recommended conservative treatment rather than additional arthroscopic surgery.

In June 1991, believing her treatment with Dr. Pulito was going nowhere, the applicant switched to W.B. Smith, M.D. His assistant took a history of the Memorial Day 1989 injury stepping into an ambulance, with no right knee problems before that time. Exhibit 4. The treatment, surgery, and follow-up with Dr. Pulito were described. The applicant's then-current complaints were pain (particularly on stairs), swelling, and buckling. The doctor's impressions were osteoarthritis of the right knee, mechanic symptoms due to osteoarthritis, and status post meniscectomy. Dr. Smith recommended further arthroscopy.

After thinking about it for six months, the applicant again underwent surgery on March 2, 1992. Dr. Smith did an arthroscopy with partial medial meniscectomy and synovectomy for plica. The doctor removed a fairly significant fibrous medial shelf, which he thought might have been giving her a good deal of trouble.

The applicant returned to work in May 1992. By August 1992, Dr. Smith reported she was 90 percent better. Her complaints were that her knee was bothersome if she was on it for 12-14 hours. The locking had all but abated. The doctor opined she plateaued, and opined that she was left with same permanent partial disability rated by Dr. Pulito rated after the first surgery: ten percent compared to loss of the leg at the knee.

The applicant saw Dr. Smith on an annual basis thereafter. She evidently experienced occasional pain, until August 1993, when she began experiencing arthritic flares in both knees. See note for February 1994. She returned to Dr. Smith with similar complaints on one occasion in 1996, and again in February 1997. In November 1997, the doctor opined the applicant was a candidate for joint replacement in both knees.

Shortly thereafter, the applicant began treating with Richard Karr, M.D., in December 1997. Dr. Karr noted bilateral knee pain, and a feeling of intermittent instability in the right knee. He noted a slight left limp, but no knee instability on examination. X-rays from Dr. Smith the month before showed degenerative problems in both knees. His diagnosis was bilateral tricompartmental osteoarthritis, post traumatic on the right side, related to the 1989 injury. He saw two treatment courses: (a) living with the pain and taking Tylenol or (b) total knee arthroplasty (i.e., a knee replacement).

The applicant was scheduled for, and underwent, a right total knee arthroplasty in March 1998. On April 3, 1998, Dr. Karr noted the applicant was having trouble achieving suitable flexion. He recommended continuing physical therapy on April 8, 1998. On May 13, 1998, Dr. Karr noted the applicant had completed therapy, and had flexion to 105 degrees and full extension. Clinic alignment was perfect, and the knee tracked well. He expected any residual pain would dissipate, and wanted a follow-up visit in two months.

Meanwhile, the applicant underwent physical therapy, and returned to work on June 3, 1998. (1 ) In August 1998, Dr. Karr noted that x-rays showed a perfect alignment of the knee replacement, and opined that with the passage of time, her residual discomfort would resolve. Exhibit F. In February 1999, he opined that her continuing complaints of occasional, mild pain along the medial aspect of the knee were due to scarring from the surgery and again noted an excellent alignment. He released her to return for treatment as needed.

The applicant testified that, since the right knee replacement, her symptoms of knee buckling have stopped. Her pain is less. Transcript, page 21-22.

In March 1999, Dr. Karr prepared a WC-16-B practitioner's report in which he opined that the applicant suffered from progressive right knee arthritis following the two arthroscopies and the knee replacement surgery. He rated permanent partial disability at 50 percent compared to loss of the leg at the knee. He also noted the ten percent for previously-rated permanent partial disability after the first surgery in 1989. He explained the rating by reference to the administrative code. He also opined she had a permanent partial disability at five percent before the work injury (per Dr. Pulito's note above.) Exhibits F and G.

Dr. Karr explained his opinion on causation in a letter to the insurer's adjuster before the surgery. Exhibits I and 3. Dr. Karr stated:

"In my opinion some component of her right knee arthritis is secondary to the natural progression of her degenerative osteoarthritis. It is orthopedic dogma, however, that partial meniscectomy does result in accelerated degenerative change relative to the knee joint. Additionally, in my opinion, chondroplasty debridement would also predispose an individual to accelerated degenerative changes. In my opinion, Ms. Rausch's prior right knee surgical procedures, any injury that made such surgical procedures necessary, would have been material contributing causative factors in progression of tricompartmental arthritis to the point where total knee arthroplasty had become necessary. In my opinion the injury that necessitated Ms. Rausch's prior right knee surgical procedures had been a material contributing causative factor in her need for right total knee arthroplasty."

The employer's IME is Gary Guten, M.D. His opinions are at exhibit 1. In his initial report dated January 27, 1998, he opines that the applicant has two types of osteoarthritis: primary osteoarthritis related to obesity and aging, and secondary arthritis related to the injury. Before seeing all the records, Dr. Guten could not determine if the need for a knee replacement in 1998 was due to a work injury in 1988. He noted the problems in the left knee, and indicated that aging and large body size (which were elements of primary osteoarthritis) could account for her condition. He specifically wondered if a significant weight gain within the past five years (which the applicant denied during his examination) occurred which might have been an aggravating factor. He also opined that given progressive changes in both knees, she would need a knee replacement. He did rate permanent partial disability at ten percent compared to loss of the leg at the knee for the minor tears in the medial meniscus noted by Dr. Pulito in the first surgery.

In a follow-up letter dated February 20, 1998, Dr. Guten noted that additional records supplied to him showed the applicant had weighed 177 pounds in 1993, and 210 pounds in 1998. This weight gain led him to conclude with certainty that the applicant's need for surgery was due to the primary osteoarthritis, and not due to the minor tears of the meniscus found at the time of the 1989 surgery by Dr. Pulito.

Dr. Guten re-examined the applicant on April 5, 1999. He reviewed treatment notes from the time of the March 1998 arthroplasty. The applicant told Dr. Guten her knee was "great" and denied any symptoms. He reiterated his diagnosis of progressive primary arthritis of the right and left knee which were not work related. He thought that because she said her knee was great in April 1999 that she should have been able to return to work within 6 weeks after the surgery, which would be mid-April 1998. He noted that the rating for a knee replacement under the law in effect in 1989 would have been forty percent compared to amputation at the knee.

The first issue, essentially, is whether applicant's May 1989 knee injury caused the need for the right knee total arthroplasty in March 1998 and resulting disability. The commission concludes it did, and credits Dr. Karr's opinion that the trauma in 1989 and consequent surgeries in 1989 and 1992 led, eventually, to the need for the right knee arthroplasty performed in 1998.

The strongest support for Dr. Guten's contrary conclusion, and it has some persuasiveness, is that her knee condition is bilateral. That is, since the uninjured left knee will need a replacement, too, how can the right knee injury in 1989 make any difference?

However, the fact remains that the applicant did have two arthroscopies on her right knee before the knee replacement surgery. The respondent conceded that these arthroscopies were related to the 1989 work injury; IME Guten opines that the torn meniscus was related to the work injury. Dr. Karr credibly opines that the pathology shown in these surgeries, a torn medial meniscus, pre-disposes one to knee replacement. If work activity precipitates disability, even though that disability would not have been caused in the absence of a congenital weakness, the disability remains compensable. E.F. Brewer v. ILHR Dept., 82 Wis. 2d 634, 638 (1978).

The next issue is the extent of disability. Because the applicant's knee surgery was necessary because of the work injury, she is entitled to temporary total disability compensation while recovering from the surgery from March 3 to her return to work on June 3, 1998. Treating Dr. Karr's notes suggest that the applicant's knee would continue to improve, at least with respect to pain symptoms, even after that time. Dr. Guten's opinion that the applicant should have been able to return to work by mid-April 1998, based on the absence of symptoms one year later in April 1999, is simply not credible.

Dr. Karr rated permanent disability following the surgery at 50 percent compared to amputation of the leg at the knee. The doctor's practitioner report indicates he rated 50 percent based on what he believed was the applicable minimum rating under Wis. Admin. Code � DWD 80.34(4). A minimum rating is consistent with the perfect alignment noted by Dr. Karr in February 1999.

However, the minimum rating for a prosthetic knee in 1989 (the year of injury) was 40 percent as Dr. Guten noted. See Wis. Admin. Code � IND 80.32(4) (1989). In addition, Wis. Stat. � 102.03(4) specifically provides that the right to an amount of compensation shall be determined by the law in effect at the time of injury. The commission has accepted that rule with respect to changes in minimum disability ratings under Wis. Admin. Code � DWD 80.32 after the date of injury. Sandra Shafer v. Heyde Health Systems, WC claim no. 92063715 (LIRC, June 6, 1996) and Michael Moser v. Dorman Roth Foods, Inc., WC claim no. 95009049 (LIRC, February 28, 1998) (argument that old code applied was persuasive, LIRC held that under the facts of the case the old code and new code yielded the same rating). Indeed, a majority of the commission has specifically held that the "old" 40 percent rating for knee replacements applies to knee injuries occurring before amendment of the code in 1994, even if the surgery occurred after 1994. Holdeman v. Coulee Region Enterprises, WC case no. 94022341 (LIRC, July 11, 1996).

The proper starting point for the disability award in this case, then, is 40 percent. From that figure, the commission deducts five percent for the pre-existing disability rated by Drs. Pulito and Smith. While employers take their employes "as is" with respect to pre-existing conditions made worse by work, that does not mean they must compensate pre-existing, ratable disability. Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 524 (1971) and Wis. Admin. Code � 80.32(1). In addition, the commission deducts the 10 percent previously conceded and paid in the sum of $5,312.50 by the respondent following Dr. Pulito's treatment in 1989. In sum, the additional amount of permanent partial disability awarded under this order is 25 percent compared to amputation of the leg at the knee.

The applicant is thus entitled to temporary total disability from March 3 to June 3, 1998, a period of 13 weeks and 1 day. At the weekly rate of $342.26 (paid at an escalated rate for renewed temporary disability under Wis. Stat. � 102.43(7)), the award for temporary disability under this order equals $6,492.73.

The applicant is also entitled to additional permanent partial disability under this order at 25 percent compared to amputation at the right knee. This works out to an additional 106.25 weeks of permanent partial disability at the weekly rate of $125 per week (the maximum for injuries in 1989), or $13,281.25.

The applicant agreed to an attorney fee under Wis. Stat. � 102.26, which is set at 20 percent of the additional amounts awarded hereunder. The additional sum awarded hereunder in temporary total disability and permanent partial disability equals $19,773.98. The fee thus equals $3,954.80. The fee, plus costs of $140.86 shall be deducted from the applicant's award, and paid within 30 days.

The amount due the applicant within 30 days is $15,678.32. This equals the sum of the temporary total disability and permanent partial disability awarded hereunder, less attorney fees and costs.

The applicant also incurred reasonable and necessary medical treatment as follows: $108 from Home Care and Medical Incorporated, all of which remains outstanding; $1,00l.50 from Chorus Occupational Health Services, all of which remains outstanding; $112.00 from Ozaukee Imaging S.C., of which Employers Insurance of Wausau paid $88.00 leaving an unpaid balance of $24.00; $1,120.00 from Sutter Corporation, An OrthoLogic Company, of which Employers Insurance of Wausau paid $120.00, leaving an unpaid balance of $1,000.00; $152.00 from North Shore Orthopaedics S.C., of which the applicant paid $10.00 leaving an unpaid balance of $142.00; $1,210.00 from St. Mary's Anesthesia Associates S.C. of which Employers Insurance of Wausau paid $882.00 and $328.00 was written off; $663.75 from Cedar Mills Medical Group in the amount of $663.75, of which the applicant paid $10.00, Employers Insurance of Wausau paid $544.97, and $108.78 was written off; $22,117.69 from St. Mary's Hospital Ozaukee, of which the applicant paid $200.00, Employers Insurance of Wausau paid $19,200.25 and $2,717.19 was written off. In addition, the applicant incurred out-of-pocket expenses for prescription expense in the amount of $70.99. The respondent is liable for all of these expenses, including reimbursement to Employers Insurance of Wausau under Wis. Stat. � 102.30(7).

The last issue is whether the order should be interlocutory. The commission generally issues interlocutory orders if "the record before [it] indicates that a definite determination cannot then be made that the employee will not sustain a greater percentage of disability in the future," Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1960). In this case, Dr. Karr stated the prognosis was good, and that he expected no further treatment. Although the decision to issue an interlocutory order is a discretionary one under Wis. Stat. � 102.18(1)(b), the commission must have some basis for reserving jurisdiction and Dr. Karr's report does not provide any.

ORDER

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 must pay all of the following:

1. To the applicant, Kathleen Rausch, Fifteen thousand six hundred seventy-eight dollars and thirty-two cents ($15,678.32) for disability compensation.

2. To the applicant's attorney, the sum of Three thousand nine hundred fifty-four dollars and eighty cents ($3,954.80) in fees and One hundred forty dollars and eighty-six cents ($140.86) in costs.

3. To Home Care Medical, Incorporated, One hundred eight dollars ($108.00) for medical treatment expense.

4. 5. To Chorus Occupational Health Services, One thousand one dollars and fifty cents ($1,001.50) for medical treatment expense.

6. 7. To Ozaukee Imaging SC. Twenty-four dollars ($24.00) for medical treatment expense.

8. 9. To Sutter Corporation, An OrthoLogic Company, One thousand dollars ($1,000.00) for medical treatment expense.

10. 11. To North Shore Orthopaedics S.C., One hundred forty-two dollars ($142.00) for medical treatment expense.

12. 13. To Employers Insurance of Wausau, Twenty thousand eight hundred thirty-five dollars and forty-seven cents ($20,835.47) for reimbursement of medical treatment expense.

14. 9. To the applicant, Two hundred ninety dollars and ninety-nine cents ($290.99) as reimbursement for out-of-pocket medical expenses.

Dated and mailed January 24, 2000
rauschk.wrr : 101 : 5 ND � 5.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer about witness credibility and demeanor with the administrative law judge who presided at the hearing, Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972), because its modification of the administrative law judge's order did not depend on the credibility of the applicant, the only witness who testified at the hearing. Instead, the reduction of the award was made as a matter of law based on the opinion of Dr. Karr, the medical expert whom the ALJ credited. Likewise, the commission issued a final order, and extended payment of temporary disability through June 3, 1998, based on Dr. Karr's opinion.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Was the applicant's knee replacement surgery causally related to her work injury of May 27, 1989? I found Dr. Guten gave the most credible answer. Dr. Guten requested additional information about prior knee problems and a significant weight gain by the applicant before he rendered his opinion. The applicant denied a significant weight gain but the medical records showed that she had weighed 177 pounds in 1993 and 210 pounds in 1998. Dr. Guten found that she had progressive primary osteoarthritis in both knees that was not work related and traumatic osteoarthritis in the right knee superimposed on the primary osteoarthritis. Dr. Pulito had found "extensive degenerative changes" on June 2, 1989 when he did surgery, one week after the injury. She had degenerative tears at the time of the 1989 surgery as well as Grade II, III, and IV throughout the medial femoral condyle. All of the degenerative changes had been present before the injury.

Dr. Karr did not see the applicant until 1997 and it appears that he did not know about the applicant's knee injuries and pain before the work injury in 1989. Dr. Karr may also not have been aware of the applicant's weight gain.

For these reasons, I would reverse and find not causation for the knee replacement surgery and permanent partial disability related to that surgery.

_________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY ROBERT T WARD
SCHIRO AND WARD

ATTORNEY PEGGY E VAN HORN
STILP AND COTTON

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Footnotes:

(1)( Back ) Transcript, page 21. The applicant sought payment of temporary disability to this date at the hearing (transcript, page 6).