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

TIM NECHODOM, Applicant

PAPER CONVERTING MACHINE CO, Employer

ZURICH AMERICAN INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999058137

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
necholt.wsd : 101 : 5   ND § 5.50

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant claims that two traumatic incidents at work, occurring when his left knee gave out as he pivoted to go around a corner, resulted in a compensable knee injury. The independent medical examiner retained by the employer and its insurer (collectively, the respondent) opines that the pathology treated surgically was not caused by the work injury.

The record contains expert medical opinion from two sources. Treating surgeon O'Reilly opines:

"My belief and opinion is that Mr. Nechodom's injuries in August and September of 1999 contributed to the need for left arthroscopic knee surgery on September 20. He has recovered from his surgery. We will probably find a figure in the range of 5% with regard to a permanent partial disability as is customary. This is, of course, as compared to an amputation of the left knee. I could not separate which factor, that is the August 1 or the September injury that is responsible for which portion of this problem, obviously, and I do not think there is any real need to do that.

Exhibit A, O'Reilly January 25, 2000 letter to Newhouse.

The respondent offers the expert medical opinion of Gary Guten, M.D., who did a file review. He concluded the lateral meniscus tear found during surgery was not related to activities at work on August 18 or September 2, 1999. In explaining his conclusion, Dr. Guten noted the following inconsistencies: (a) the applicant had been helping friends do roofing before the injury, (b) his complaints of tenderness was at the medial joint line - and there were no lateral side complaints noted at all - while the tear found during surgery was of the lateral meniscus (1) ,  (c) at the symptomatic medical side, the medial meniscus was normal, and (d) the smooth-edge flap tears of the lateral meniscus indicating "chronicity" make it unlikely the tears were related to the work symptoms of medial tenderness.

Finally, the respondent offers the applicant's claim for disability under a non- industrial policy, which also contains treating surgeon O'Reilly's opinion on causation. That form, dated October 25, 1999, describes the applicant's disabling condition as lateral meniscus tear, left knee, and goes on to list the dates of the applicant's visits with Dr. O'Reilly beginning on September 14, 1999. Dr. O'Reilly opined on this form that the applicant's injury was not work-related. Exhibit 4.

The ALJ found for the respondent, concluding the turning injuries did occur as alleged, but concluded that they did not cause the lateral meniscus tear pathology that was treated surgically. On this point, the ALJ noted the contradiction between where the symptoms were (medial side) and where the pathology was (lateral side) was not well-explained. He also noted treating surgeon O'Reilly's conflicting opinions that the condition was and was not work related.

However, the ALJ also noted Dr. O'Reilly's opinion that the August 2 and September 18, 1999 injuries were work injuries went unrebutted, so the ALJ awarded the outstanding $3 treatment expense with Dr. Eatwell for August 20, 1999.

The applicant appeals. The main thrust of his position is summarized in his brief as follows:

"This case is all about a long-term employee, who never had any left knee problems from the 24 « years that he worked for Paper Converting Machine Co. Then he has two work injuries in approximately two weeks, and has continuing left knee problems until the time of September 20, 1999 surgery. After the surgery was performed he returned to work with some limitations and he has continued to work. The applicant asks that the LIRC reverse the ALJ's denial of compensation.."

The respondent argues the ALJ's order should be affirmed, noting the symptoms were on the medial side of the knee but the pathology noted during surgery was on the lateral side of the knee. Indeed, the symptoms the applicant had led Drs. O'Reilly and Eatwell to suspect a medial not lateral meniscus tear, or internal derangement, not the lateral meniscus tear that was discovered and treated during surgery. The respondent also points to Dr. O'Reilly's unexplained switch from opining that the condition was not work related, to opining it was. It notes that Dr. O'Reilly himself referred to the smoothness of the tears, indicating chronicity.

Finally, the respondent distinguishes the present case from the situation in Spencer v. DILHR, 55 Wis. 2d 525 (1972). In Spencer, an injured worker underwent treatment to cure and relieve the effects of a work injury in good faith reliance on his doctor. The underlying point in Spencer was that the work injury caused the pathology that was treated; it was the treatment itself that was at issue. The respondent's analysis on this point is quite correct -- assuming traumatic turning work injuries did not directly cause the lateral meniscal tear or aggravate the condition beyond its normal progression; coincidental treatment of a non-work related condition is not compensable under the workers compensation act. See City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 300-301 (Ct. App., 1982).

The commission agrees with the respondent's position in this case. The commission also notes that Dr. O'Reilly's operative report -- with its notation that the tears were smoothed-edged indicating chronicity and that the tears would cause significant mechanical problems as the applicant would push, turn and cut -- could easily be read to state that the pre-existent tears caused the problems with pivoting on the left leg rather than the other way around. This is particularly troubling in that Dr. O'Reilly's final opinion does not clearly state that the work injuries aggravated the applicant's condition beyond normal progression, but only "contributed to the need for surgery" in some unexplained way.

The commission acknowledges that an injured worker may be suspicious of a report from an independent medical examiner that blames a pre-existing condition for problems that first surface after a work injury, on the theory that the pre- existing condition co-incidentally worsened at the same time as the work injury. However, in this case, of course, simply walking and turning resulted in the work injury alleged to have caused the disability. Further, the medial-side symptoms following the allegedly-causative work injury are not consistent with the lateral- side pathology, supporting the view that the pathology is completely unrelated to the work injury, especially in light of Dr. O'Reilly's unexplained switch in opinion.

cc: ATTORNEY TONY WELHOUSE
WELHOUSE LAW OFFICE

ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

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Footnotes:

(1)( Back ) The medial side is the side facing the right knee; the lateral side is the "outside" of the left knee.

uploaded 2001/02/12