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

MARK ACKERMAN, Applicant

PIEPER ELECTRIC INC, Employer

NATIONAL AUTO PURCHASING, Employer

ZURICH AMERICAN INS OF IL, Insurer

EMCASCO INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1993008616 & 1999002553

Pieper Electric, Inc. and Zurich American Insurance of Illinois submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 23, 1999. National Auto Purchasing and EMCASCO Insurance Company submitted an answer to the petition, and briefs were also submitted by the parties, including one from the applicant. Pieper Electric and Zurich American conceded a compensable injury to the applicant's right knee occurring on February 4, 1993, and paid the claimed temporary total disability and 5 percent permanent partial disability of the knee attributable to that injury. The applicant is claiming temporary total disability, medical expense, and an additional 2 percent permanent partial disability to the knee sustained in May 1998. The primary dispute is whether the 1998 disability and medical expense is attributable to the 1993 injury, or to a new injury for which National Auto Purchasing and EMCASCO would be liable. Pieper Electric and Zurich American also assert that regardless of the causation issue, the applicant did not sustain an additional 2 percent permanent partial disability at his right knee.

The commission has carefully reviewed the entire record in this matter and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is March 18, 1967, was employed as a wire installer and equipment operator for Pieper Electric, insured by Zurich American Insurance Company, when he fell and injured his right knee on February 4, 1993. On April 20, 1993, Dr. John Konkel performed an arthroscopy in which he debrided the undersurface of the patella and injected the prepatellar bursa. Grade 2 changes were noted in the patellofemoral joint. The applicant continued to have problems with the knee and came under the care of Dr. Mark O'Meara.

On February 2, 1995, Dr. O'Meara performed another right knee arthroscopy, which involved removal of plica from the medial aspect of the patella. After a fluid aspiration on February 22, 1995, the applicant's knee began to feel much better, and he was released from care on July 18, 1995. He returned to work and Pieper/Zurich paid temporary disability and 5 percent permanent partial disability at the knee. The applicant thereafter had knee pain on a daily basis, but not enough to go to a doctor, except for an incident occurring on May 22, 1996. On that date, he was carrying a piece of PVC pipe for another employer when his right foot caught in a piece of tape, and caused him to fall into a trench and strike his right shin and knee on the corner of the trench. He saw Dr. O'Meara on May 23, 1996, and was diagnosed with a contusion to the right proximal leg with only slight involvement of the patella. Dr. O'Meara took him off work for one day but did not attribute any further disability to this incident.

The applicant worked for Pieper Electric until early 1997, when he went to work for Resource Recovery Systems as a truck driver and machine operator. In early 1998, he began his employment with National Auto Purchasing (NAP), insured by EMC Insurance, as a car hauler and truck driver. In May 1998, he noticed an increase in knee pain, and he believed his work was affecting this. He was required to drive up to 1,000 miles per day without cruise control, and he had to load and unload cars from a car hauler. This included walking up and down the truck ramp, and walking about five blocks after parking each car. On May 27, 1998, he went back to Dr. O'Meara, who diagnosed an acute flare-up of the knee secondary to chondromalacia. Dr. O'Meara recorded the applicant's complaint that walking on the job caused knee discomfort.

On June 8, 1998, Dr. O'Meara performed a diagnostic arthroscopy on the applicant's knee. He found no abnormalities except that the medial facet of the patella showed slight irregularity and softening but no fraying or full-thickness cartilage loss. In a pre-surgical history dated June 8, 1998, Dr. O'Meara indicated the applicant had experienced increasing knee pain over the past six months. The applicant testified that the pain may have started six months prior to that history note, but the "greater pain" began in April or May of 1998. Dr. O'Meara released the applicant to work on July 6, 1998, and the applicant returned to work the next day. He worked without restriction until NAP terminated him on December 14, 1998.

Dr. O'Meara completed a WC-16-B dated December 10, 1998, in which he checked the direct causation box and listed both the 1993 and 1998 incidents as traumatic events. Dr. O'Meara assessed an additional two percent permanency at the knee due to decreased motion and decreased ability to stand or walk. In a letter to Zurich American dated July 8, 1998, Dr. O'Meara wrote:

"Since his injury at Pieper Electric he underwent two arthroscopies. The second one enabled him to return to fairly heavy work. However, he had a 5 percent disability and he never felt that he had 100 percent resolution of his symptoms. He continued to have mild to moderate aching, especially after heavy activity or after weather change. This never kept him from doing his job but he nevertheless could feel some discomfort in his knee. He presently has been doing very light duty work but he noted an increase in pain over the anterior aspect of his knee after prolonged walking. It is my opinion that he sustained no new injury but merely is having knee pain which represents an aggravation of a pre-existing condition which is accelerating faster than normal. I feel his recent knee flare up and the necessity for knee surgery is entirely related to his injury at Pieper Electric."

At Zurich American's request, Dr. David Mellencamp examined the applicant on September 16, 1993. He diagnosed traumatic chondromalacia of the right patella with work causation and assessed five percent permanency at the knee. Dr. Mellencamp was asked to reexamine the applicant on May 10, 1999, and in his report dated May 18, 1999, he opined that the applicant's job at NAP aggravated the preexisting knee injury and necessitated the June 1998 surgery. However, he opined that the surgery revealed no further abnormalities and there continued to be a five percent permanency. He opined that the 1998 treatment was reasonable and necessary, but not related to the 1993 injury.

At EMC's request, Dr. Charles Klein examined the applicant on May 10, 1999, and diagnosed chondromalacia of the patella resulting from the 1993 work injury. Dr. Klein opined that the natural history after such an injury would be intermittent episodes of patellofemoral pain with an occasional flare-up and gradual wearing of the cartilage. He further opined that the applicant's work at NAP did not show any evidence of a distinct injury, and he did not feel that work exposure had anything to do with the right knee problem. He attributed the problem to a manifestation of symptoms related to the preexisting condition from 1993. He also assessed five percent permanency at the knee, and opined that there was no basis in fact for Dr. O'Meara's increase of two percent.

The commission finds Dr. Mellencamp's medical opinion of causation to be credible. The applicant was performing work activities for NAP which put significant strain on his knee, and coincided with the flare-up of his symptoms. The applicant credibly testified that although he may have told Dr. O'Meara on June 8, 1998, that he had experienced increasing knee pain over the previous six months, there was "greater pain" beginning in April and May of 1998, when he was working for NAP. The applicant also credibly testified that his knee symptoms increased while he was working for NAP, and that his knee "ballooned up" in May 1998. This testimony is supported by the fact that the record reveals no medical treatment to the applicant's knee between the May 1996 incident and May 27, 1998.

Accordingly, it is found that the applicant's work for NAP temporarily aggravated the applicant's preexisting knee condition causing his temporary total disability between June 8, 1998 and July 6, 1998, as well as the diagnostic arthroscopy of June 8, 1998. The temporary total disability period was for three weeks and five days, which at the applicable rate results in compensation of $1,956.72. A 20 percent attorney's fee will be subtracted from this amount.

Medical treatment expense is also due as follows: to Medical Imaging, Ltd. the amount of $243.75; to St. Joseph's Community Hospital the sum of $398.41; to Orthopaedic Associates of West Bend the sum of $177.37; to the applicant as reimbursement for medical mileage expense the sum of $93.38; and to Primecare reimbursement in the amount of $2,512.55.

Both Dr. Mellencamp and Dr. Klein opined that the applicant had not sustained any permanent partial disability to his right knee beyond the 5 percent conceded and paid to him for his 1993 injury. Dr. Klein specifically opined that there appeared to be no basis in fact for Dr. O'Meara's assessment of an additional 2 percent permanent partial disability. Dr. Klein's and Dr. Mellencamp's opinions regarding permanent partial disability are accepted as credible, since no new condition was found in the diagnostic arthroscopy of June 8, 1998, and the applicant credibly testified that his knee is currently virtually pain free.

This order is final with respect to the effects of the 1998 temporary aggravation injury found herein. It is therefore final with respect to the liability of NAP and EMCASCO Insurance Company. Dr. O'Meara's medical opinion credibly indicates that additional medical treatment and/or disability may arise as a result of the 1993 work injury, and the order will therefore be left interlocutory only with respect to that injury.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. Within thirty days from this date, National Auto Purchasing and Zurich American Insurance of Illinois shall pay to the applicant as compensation for temporary total disability the amount of One thousand five hundred sixty-five dollars and thirty- eight cents ($1,565.38); to applicant's attorney, Mark Kutschenreuter, fees in the amount of Three hundred ninety-one dollars and thirty-four cents ($391.34); to Medical Imaging, Ltd. the amount of Two hundred forty-three dollars and seventy- five cents ($243.75); to St. Joseph's Community Hospital the amount of Three hundred ninety-eight dollars and forty-one cents ($398.41); to Orthopaedic Associates of West Bend the amount of One hundred seventy-seven dollars and thirty-seven cents ($177.37); to Primecare reimbursement in the amount of Two thousand five hundred twelve dollars and fifty-five cents ($2,512.55); and to the applicant as reimbursement for medical mileage expense the sum of Ninety-three dollars and thirty-eight cents ($93.38). [NOTE: An Amended Order was issued in this matter on February 3, 2000]

This order is final with respect to the liability of National Auto Purchasing and Zurich American Insurance of Illinois. The order is interlocutory with respect to all issues which may arise out of the 1993 work injury for which Pieper Electric, Inc. and EMCASCO Insurance Company remain on the risk.

Dated and mailed January 24, 2000
ackerma.wrr : 185 : 5  ND § 3.43 § 5.15  § 5.2

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

When the commission consulted with the administrative law judge, he indicated that he found the applicant to have been a credible witness, but he accepted Dr. O'Meara's opinion for the reasons set forth in the administrative decision dated June 23, 1999. Those reasons were based on analysis of the medical records and written medical opinions, which the commission analyzed differently as explained in the above findings. The administrative law judge reiterated that he did place weight on Dr. O'Meara's note of June 8, 1998, which recorded a history of increased knee pain over the previous six months. However, the administrative law judge did not indicate that he found the applicant's explanation that he began experiencing "greater pain" in April or May of 1998 to have been incredible. The commission found this explanation to have been entirely credible, especially given the fact that the applicant did not seek treatment until May 27, 1998.

cc: ATTORNEY MARK KUTSCHENREUTER
KUTSCHENREUTER & MCGREGORY

ATTORNEY RICHARD W WHITE
WHITE & LOWE

ATTORNEY JULIE J DARNIEDER
DARNIEDER WEST DAVIS & GERAGHTY

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NOTE:  The following AMENDED ORDER was issued in this matter on February 3, 2000:

"Pursuant to authority granted in Wis. Stat. § 102.18(4)(d), the commission hereby amends its Interlocutory Order issued in this matter on January 24, 2000. The Interlocutory Order incorrectly orders National Auto Purchasing and Zurich American Insurance of Illinois to make certain payments, when it should have ordered National Auto Purchasing and EMCASCO Insurance Company to make such payments. Also, the Interlocutory Order incorrectly finds that it is final with respect to the liability of National Auto Purchasing and Zurich American Insurance of Illinois, and interlocutory with respect to all issues which may arise out of the 1993 work injury for which Pieper Electric, Inc. and EMCASCO Insurance Company remain on the risk. This finding should have been that the order was final with respect to the liability of National Auto Purchasing and EMCASCO Insurance Company, and Interlocutory with respect to all issues which may arise out of the 1993 work injury for which Pieper Electric, Inc. and Zurich American Insurance of Illinois remain on the risk. The Interlocutory Order is hereby amended to incorporate these corrections."

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