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

WALTER POLKOSKI, Applicant

CLARK O. &  ANN E. OLSEN, Employer

TRAVELERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995054276

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 March 23, 1999. 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 compensable work injury of September 15, 1995.

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 birth date is July 27, 1935, was employed as a farm laborer for the employer. He was struck in the left hip with a large piece of timber on September 15, 1995, resulting in a fracture of his left acetabulum (hip socket). On September 18, 1995, Dr. David Templeman, an orthopedic surgeon, performed a surgical reduction and internal fixation procedure on the applicant's left acetabulur wall. The applicant has had a relatively good result from the surgery, although he does experience pain "almost daily" in his hip. He also noted that "it catches" at times while he is walking.

Dr. Templeman assessed 10 percent permanent partial disability of the whole body. He cited pain, limited endurance, and weakness as a result of pain. He defended this assessment in a letter to the insurance carrier dated December 31, 1997, opining that percentage for loss of use as compared with amputation at the hip joint would not be an appropriate way to rate the applicant's disability due to the work injury.

At the insurance carrier's request, Dr. Richard Lemon, also an orthopedic surgeon, examined the applicant and his medical records. In his report dated March 30, 1998, Dr. Lemon concurred with Dr. Templeman's diagnosis, but assessed only a 5 percent permanent partial disability at the left hip. He attributed this to a slight loss of motion in the hip, continuing hip symptoms, and an increased risk for developing arthritis. Dr. Lemon also opined that the applicant's complaints of numbness in the second and third toes of both feet constituted polyneuropathy of undetermined etiology, with no connection to the acetabulur fracture. The applicant had also consulted with a neurologist, Dr. David Mc Kee, regarding this numbness. Dr. Mc Kee could find no specific etiology for this symptom and opined that it was very unlikely that it was due to any specific injury. Accordingly, this numbness has not been shown to be attributable to the work injury of September 15, 1995.

The evidence demonstrates that the applicant's permanent residual attributable to his work injury and surgery is limited to his left hip. The residual may also affect the applicant's use of his left leg. There is no evidence that the injury or surgery affected the applicant's low back, or any other area beyond his left hip and leg. Wis. Stat. § 102.52(10) provides a scheduled award of up to 500 weeks of permanent partial disability for the "loss of a leg at the hip joint." The commission and the department have always interpreted this statute as addressing any injury to the hip which may affect that joint and/or use of the leg. The commission therefore finds that on September 15, 1995, the applicant sustained a scheduled injury to his left hip.

This interpretation of Wis. Stat. § 102.52(10) is identical to the commission's and the department's interpretation of Wis. Stat. § 102.52(1), which provides for an award of up to 500 weeks of permanent partial disability for the "loss of an arm at the shoulder." The commission's and the department's interpretation of Wis. Stat. § 102.52(1) was approved by the Wisconsin Supreme Court in Hagen v. LIRC, 210 Wis. 2d 12, 21-22, 563 N.W.2d 454 (1997). The applicant has argued that Hagen can be distinguished from his case, because the injury was to his acetabulum rather than to his leg. But in Hagen the employe injured her arm and her shoulder, and underwent shoulder surgery. The commission found, and the court affirmed the fact that no permanent disability extended beyond the shoulder joint into the upper back; just as in the applicant's case, it has been credibly demonstrated that no permanent disability extends beyond his hip joint into his lower back. Dr. Tempelman offered his opinion that a whole body rating would be more appropriate than a scheduled rating at the hip, but he did not identify any symptoms or residuals beyond the hip joint or leg. The order is interlocutory should the applicant's condition change.

Dr. Lemon's comprehensive and convincing assessment of the applicant's medical condition is accepted as credible. This results in a finding that as a result of the work injury of September 15, 1995, the applicant sustained a 5 percent permanent partial disability as his left hip. The insurance carrier previously paid permanent partial disability equivalent to more than 5 percent at the hip, and therefore no additional compensation is due.

The applicant incurred reasonably required medical expenses as follows: Memorial Medical Center in the amount of $2074.05, of which $1,548.40 was previously paid by the insurance carrier; Ashland Para-Transit Service in the amount of $683.67; prescription medical expense paid by the applicant in the amount of $26.43; and medical mileage reimbursement due the applicant in the amount of $363.48.

The applicant may incur further medical expense and/or disability attributable to his work injury, and therefore this order will be left interlocutory.

Now, therefore, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. Within 30 days from this date, if not previously paid, the insurance carrier shall pay to Memorial Medical Center the sum of Five hundred and twenty-five dollars and sixty-five cents ($525.65); to Ashland Para-Transit Service the sum of Six hundred eighty-three dollars and sixty-seven cents ($683.67); to the applicant as reimbursement for prescription expense the sum of Twenty-six dollars and forty- three cents ($26.43); and to the applicant as reimbursement for medical mileage expense the sum of Three hundred sixty-three dollars and forty-eight cents ($363.48).

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

Dated and mailed February 23, 2000
polkowa.wrr : 185 : 6  ND § 5.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge to determine whether he had any credibility/demeanor impressions which would affect the assessment of the extent of permanent partial disability at the applicant's hip. The administrative law judge noted that the applicant was not the sort of individual who complains without a good reason, and that he believed the applicant sustained a significant permanent disability as a result of the work injury. The commission accepted these impressions, but found that Dr. Lemon's assessment of 5 percent permanent partial disability at the left hip accurately reflects the degree of disability sustained.

With regard to the controversy concerning whether this was a scheduled or an unscheduled injury, the commission explained in its findings its reasons for reversing the administrative law judge's determination.

cc: ATTORNEY DON PAUL NOVITZKE
NOVITZKE GUST & SEMPF

ATTORNEY CATHERINE THOMAS
LAW OFFICES OF JOHN J SPINDLER

Appealed to Circuit Court. Reversed October 31, 2000.

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