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


KATHY R  KROLIKOWSKI, Applicant

DIVINE SAVIOR HOSPITAL AND NURSING HOME, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997012872


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 October 31, 2000
krolika.wsd : 101 : 5  ND § 8.24

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant, a registered nurse, began working for her employer, a hospital, in 1993. She now has a problem with her left knee that both parties' medical experts agree is to some degree permanently disabling. The primary question in this case is whether the applicant's disability was caused by a work injury. Specifically, the applicant claims she injured her left knee at work on three occasions, in July 1995, August 1995, and December 1996.

The applicant's medical expert, Gerry Chrabaszcz, M.D., initially reported in May 1998 that the July 1995 work injury aggravated, accelerated and precipitated the applicant's pre-existing degenerative condition beyond its normal progression. He was uncertain whether the applicant would have permanent disability from the condition because he had not declared an end of healing. Dr. Chrabaszcz did opine the applicant would likely have residual pain, and might require arthroscopic surgery, periodic injections or physical therapy to control her symptoms. See exhibit C.

Thereafter, Dr. Chrabaszcz opined in September 1999 that the applicant had reached an end of healing from her work injury. He assigned a permanent partial disability at ten percent compared to amputation at the left knee. He did relate the aggravation of the applicant's knee condition beyond normal progression to her multiple, distinct knee injuries, rather than to occupational disease or exposure over time. Exhibit B.

The insurer retained an independent medical examiner (IME), Stephen F. Weiss, M.D. He noted current physical findings including mild restriction of motion, medial joint line tenderness, patellofemoral crepitus, and a positive Apley grind. His diagnosis was degenerative joint disease of the knee, temporarily aggravated by work injuries in July 1995 (quickly resolved), August 1995 (resolved by October 23, 1995), and December 1996 (resolved by February 1997).

More specifically, Dr. Weiss opined the applicant has a gradually deteriorating condition which was temporarily aggravated by a number of incidents over the years, some of which were quite mild and all of which resolved within 6 to 12 weeks, without breakage or progression beyond normal. He thought her underlying condition was independent of her work activities, and that she did not do the type of repetitive kneeling or squatting that could be considered contributory to a degenerative condition. He did not think restrictions were necessitated by any work injury, but would recommend she have the ability to alternate between sitting and standing when she becomes symptomatic "as she inevitably will." Although he opined it was not related to any work injury, IME Weiss rated permanent partial disability at the knee for the applicant's restricted range of motion.

The ALJ credited Dr. Chrabaszcz's opinion. She explained she found him more credible because he was the treating doctor. She also explained that she found his opinion that the applicant's knee condition was not the result of simple degeneration more credible because the applicant had no left knee problems before 1995, and because she has never had right knee problems.

The employer and its insurer (the respondent) appeals. The respondent points out that there is no "treating physician rule" under Wisconsin worker's compensation law. The respondent also asserts that Dr. Chrabaszcz's opinion is at odds with that of all of the other treating doctors.

Nonetheless, the commission affirms the ALJ's decision in this matter. First, of course, while the employer is correct that Wisconsin does not recognize a treating physician rule in worker's compensation, the commission cannot conclude that the ALJ made any error in crediting the treating doctor in this case. In Conradt v. Mt. Carmel School, 197 Wis. 2d 60 (Ct. App., 1995), the court rejected establishing a presumption in favor of treating doctors, to prevent the commission from disregarding the opinion of the treating doctor in favor of a one-time examiner absent "good and substantial grounds." Conradt, at 197 Wis. 2d 66-70. But nothing in Conradt prevents an ALJ from crediting a treating doctor, if the ALJ so chooses, because of his greater familiarity with the applicant's case. Conradt simply holds the ALJ is not required to make that presumption.

Second, the commission cannot conclude that the other treating doctors disagree with Dr. Chrabaszcz. Indeed, the only other treating doctor who actually seems to express an opinion on the nature and extent of disability is Dr. Hoeft. True, in his October 23, 1995 medical report at exhibit 5, Dr. Hoeft indicates that he did not expect permanent disability following the August 1995 work injury. However, in that same medical report, Dr. Hoeft made the conflicting statements that the applicant had reached a healing plateau (or end of healing) with no permanent partial disability while simultaneously indicating he could not rule out a meniscal tear and that the applicant should return if her condition did not improve. (1)

Third, the ALJ reasonably relied on the synchronicity of the applicant's initial symptoms with the work injuries. There is no evidence of any left knee symptoms predating the 1995 injuries. It could be that the progressing degenerative condition was simply quiescent until then, but the first symptoms did occur with a work injury. The applicant testified that her condition did not improve, that she continued to experience many small injuries thereafter, and that she treated with anti-inflammatories. Her testimony, and her statements to her doctors, indicate that as long as she had anti-inflammatories, her condition was tolerable. That history is completely consistent with Dr. Chrabaszcz's opinion that the July 1995 work injury aggravated the applicant's underlying osteoarthritis beyond its normal progression.

The commission, of course, was troubled by the fourteen month gap in treatment between October 1995 and January 1997. For this reason, it conferred with the presiding ALJ concerning witness credibility and demeanor. (2) Following the conference, the commission was persuaded that the applicant credibly testified that her knee symptoms continued after her October 1995 treatment with Dr. Hoeft, but she kept them in check with Relafen or another anti-inflammatory. This history, combined with Dr. Hoeft's concern in October 1995 that the applicant's condition might not improve, leads the commission to conclude that Dr. Chrabaszcz's opinion was most credible.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employee reported three injuries while working for the employer. The applicant did not seek medical treatment for the first injury in July of 1995. In August 1995 she slipped onto both her knees and sought medical treatment. She had x-rays that showed small spurs and no fracture. Dr. Hoeft found that the employee had reached a healing plateau and had no permanent partial disability.

In December of 1996 she hit her leg on a scale and did not see a doctor again until January. In January of 1997, she saw Dr. Cleveland because Dr. Hoeft was no longer practicing. She told him she hyperextended her left knee in August 1995. Dr. Cleveland found a normal range of motion but some crepitus. There was point tenderness on the medial posterior patella with crepitus. He believed it was left patella degenerative joint disease but he could not rule out a mild medial meniscal tear. Dr. Cleveland discharged the employee in February of 1997 to return to work. The employee had an MRI on October 22, 1997. It showed diffuse degeneration of the medial meniscus with associated hypertrophic degenerative change. A degenerative medial meniscus is not caused by a tear but by degeneration caused by the aging process.

Dr. Chrabaszcz who did not see the applicant until October 22, 1997 found that July 1995 injury aggravated her pre-existing degenerative condition beyond its normal progression. I would agree with treating Dr. Hoeft and IME Dr. Weiss who found that the injuries were at most a temporary aggravation of the underlying degenerative joint disease.

For these reasons, I would reverse and dismiss the application for temporary total after February of 1997 and permanent partial disability.

_____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY KATHERINE E CAMPBELL
LA ROWE GERLACH & ROY SC

ATTORNEY MATTHEW C SIDERITS
OTJEN VAN ERT LIEB & WEIR SC


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Footnotes:

(1)( Back ) The expectation of increased healing and the inability to rule out a meniscus tear is at odds with a conclusion that the applicant had reached a healing plateau with a full recovery.

(2)( Back ) Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972).