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


JOHN A YORTON, Applicant

PETRETTI REALTY CORP, Employer

STATE FARM FIRE & CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999002538


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 16, 2000. 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 left knee injury occurring on July 8, 1997. The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained a medial meniscus tear to his left knee on October 23, 1979, while working for Keman Sausage Company. He underwent a left medial meniscectomy on November 13, 1979, which had a good result, and he required no further medical treatment.

On July 8, 1997, the applicant was working for Petretti Realty when he pushed a large dumpster loaded with trash. The wheels of the dumpster jammed and the applicant's left knee buckled, causing extreme pain. Dr. James Shapiro diagnosed post-traumatic plica syndrome, together with arthritis secondary to the applicant's 1979 meniscectomy. Cortisone injections failed to provide relief so Dr. Shapiro performed a left knee arthroscopy on September 19, 1997. His post-operative diagnosis was left knee arthritis with Grade 4 chondromalacia of the trochlear groove, and Grade 4 chondromalacia of the medial femoral condyle and tibial plateau. The surgical note also reveals that Dr. Shapiro thought there could be a partial tear of the anterior cruciate ligament. The arthroscopy did not provide good relief of the applicant's knee symptoms, and Dr. Shapiro recommended a total knee replacement in the not too distant future. Dr. Shapiro completed a WC- 16-B dated October 16, 1998, in which he assessed 10 percent permanent partial disability to the knee. In answer to the question of whether there was any previous permanent disability Dr. Shapiro wrote: "Not of which I am aware."

At the insurer's request, Dr. Michael Band, an occupational medicine specialist, examined the applicant on August 25, 1998. He diagnosed degenerative arthritis of the left knee, status post medial meniscus, and resolved sprain of the left knee. He opined that the applicant's preexisting underlying degenerative arthritis is the "major cause" of his current pain. He further opined that the applicant's arthroscopy was appropriate treatment, but that his resultant knee pain and disability are due to his underlying osteoarthritis.

The commission agreed with the administrative law judge's determination that Dr. Shapiro's medical opinion concerning causation is credible. The applicant had a preexisting degenerative knee condition but he had not required any treatment for over 17 years prior to the traumatic incident of July 8, 1997. The applicant credibly described very significant symptoms as having occurred in that incident, and thereafter there was a substantial and continuing change in the applicant's knee symptomatology.

With regard to the amount of permanent partial disability attributable to the work injury of July 8, 1997, it is documented in the record that the applicant underwent a left medial meniscectomy in 1979, and pursuant to Wis. Admin. Code DWD § 80.32(4), a 5 percent permanency attached to that surgical procedure. Dr. Shapiro indicated that his 10 percent rating did not take into account any preexisting permanency, and so it is necessary to subtract the preexisting 5 percent from his 10 percent assessment.

The applicant is therefore entitled to 21.25 weeks of compensation at the applicable rate of $164.30 per week, for a total of $3,491.38. A 20 percent attorney's fee will be subtracted in the amount of $698.28.

Jurisdiction will be reserved with respect to the possibility of additional medical treatment and/or disability.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Petretti Realty Corporation and State Farm Fire and Casualty Company shall pay to the applicant the amount of Two thousand seven hundred ninety-three dollars and ten cents ($2,793.10); and to the applicant's attorney, Terry Constant, fees in the amount of Six hundred ninety-eight dollars and twenty-eight cents ($698.28).

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

Dated and mailed August 30, 2000
yortonj.wrr : 185 : 5   ND § 5.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's subtraction of the preexisting 5 percent permanent partial disability from the current assessment of 10 percent permanent partial disability was done pursuant to Wis. Admin. Code DWD § 80.32(4). No credibility or demeanor impressions of the applicant, who was the only witness at the hearing, were relevant to this determination.

cc: ATTORNEY TERRY L CONSTANT

ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC


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