DAVID R YONKE, Applicant 

McGIVERN MASONRY INC, Employer

ST PAUL FIRE & MARINE INS CO, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 29, 2001
yunkoda . wsd : 101 : 8  ND  § 3.34  § 3.37 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The issues on appeal are whether the applicant sustained disability to his knee from an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment, and the extent of disability from any such injury. In other words, did the applicant sustain compensable knee injuries in July 1999, resulting in the disability found by the ALJ?

The applicant was born in 1966. He graduated from high school in 1984. He worked in the carpenter's union for about six years, before switching to the laborer's union in 1989. His work since then has been mainly in masonry construction. The record contains evidence of substantial right knee treatment preceding the claimed date of injury in this case.

On Friday, July 16, 1999, the applicant injured his right knee as he stepped off a forklift into a tire rut, and felt his knee pop. He reported the injury, then took it easy over the weekend, but his knee swelled. When he returned to work on Monday, July 19, 1999, he jumped off a wall and hurt his knee. At this point, the knee hurt so badly that the applicant sought medical treatment.

The record contains expert medical opinions concerning the July 16, 1999, injury from two sources.

In his first report dated October 11, 1999 (Exhibit A), treating Dr. Tvedten opined the applicant injured his knee on July 16, 1999, getting off a forklift. In his initial practitioner's report, he marked the direct causation and Lewellyn 3 (1) causation boxes. He opined the applicant would have permanent disability, but that it was too soon after the September 3, 1999, surgery to rate permanent disability.

To explain his opinion on causation, Dr. Tvedten states:

"Again, this is a work related injury. He does have a prior history of several dislocations including chondroplasties. He had a new injury of his central patella, at least 1 « cm in diameter secondary to the dislocation, therefore, it is my opinion his new symptoms are related to that. The requirements for surgery are related to the new dislocation despite his underlying problems of past dislocations but none in the past several years."

Exhibit A, September 13, 1999, treatment of Tvedten.

The independent medical examiner (IME) retained by the insurer is Kenneth H. Yuska, M.D. He did an independent medical examination on September 2, 1999 (which was the day before the final surgery.) The doctor noted the latest episode occurred when the applicant stepped off a forklift into a rut, and then felt a popping, twisting in his knee. The applicant, Dr. Yuska reported, manually reduced the kneecap himself, and it went in with a pop. Dr. Yuska's synopsis of the case is:

"[The applicant] is a 33-yr-old man, who has had problems with both knees going back to 1981. He has had recurrent episodes of dislocation of both knees with progressive deterioration of the right knee going back several years. He has had three surgeries on the right knee to clean out chips and smooth off the kneecap surface. He has already been assigned a five percent permanent partial disability relative to the right knee for the knee injuries.

"This episode occurred with a minor step off some equipment. It is very much like so many episodes that occurred previously. He says the kneecap can go out with walking or even riding an exercise bike."

Regarding causation, Dr. Yuska wrote:

"It is clear that this is a long-standing problem that has gone back over 15 years. He has had numerous episodes of dislocation and subluxation of the knee. He has three surgeries on the right knee. The current incident at work, July 16, 1999, was something that was caused by a force solely personal to the examinee. It was not a force due to the workplace exposure. This would likely have happened if had been walking on normal ground with any minor twist, squat or kicking motion.

"In my opinion, the original dislocations on this man occurred in 1981. Certainly by 1983 he had a major problem where he had a dislocation that caused chips in the knee. These chips were removed in 1983."

Dr. Yuska did agree the surgery proposed by Dr. Tvedten was an acceptable surgical approach.

After reviewing Dr. Tvedten's surgical note from the surgery, Dr. Yuska did not change his mind. See Exhibit 1, Dr. Yuska's report dated November 17, 1999. He did note, however, that the surgical report described a mixture of old and recent changes, which Dr. Yuska regarded as important because it showed the long-standing chronicity of the problem.

Dr. Tvedten got in the last word. He issued a March 6, 2000 report, fixing permanent partial disability from the surgery he did on September 3, 1999, at five percent compared to loss of the leg at the knee. See Exhibit B, questions 15 and 19. Regarding causation, he referred to his treatment notes. They, of course include these observations in the doctor's October 11, 1999, note:

"It is my medical opinion that the patient's current injury is a direct result of his job related injury. Despite the fact that the patient had previous patellar dislocations, although none for several years and was working without restrictions, he had really a new injury to his knee. This directly resulted in this cause for surgery as well as the new patellar defect. Had he not been on his job, it is unlikely that his patella would have dislocated resulting his current symptomology and need for surgery. Therefore, it is my opinion that this is, indeed, work related. This is despite Dr. Yuska's opinion as the independent medical examiner. He states that this could have happened to the patient if he was walking down the street. Unfortunately, what Mr. Yuska failed to notice was that it happened on his job, not walking down the street."

Exhibit D, Tvedten note of October 11, 1999.

The ALJ credited the opinion of Dr. Tvedten, and found a compensable knee injury (or injuries) in July 1999. In so doing, she observed that the applicant was able to work without restrictions before the July 16 and July 19 events, but not after.

The employer and its insurer (collectively, the respondent) appeal. The respondent notes the history of patellar dislocations before the 1997 injury, going back as far as 1983, and then again on three occasions after the July 16, 1999, injury. The respondent asserts that the record makes it quite clear that the applicant was prone to dislocations with most any type of physical activity, and that the dislocation on July 16, 1999, was merely a manifestation of his pre-existing degenerative condition. It argues, therefore, that there was no compensable injury under the Lewellyn 2 (2) theory of noncausation.

The respondent goes on to assert that, even if a work injury, rather than the simple manifestation of the pre-existing degenerative condition, caused the particular dislocation that occurred on July 16, 1999, Dr. Tvedten performed surgery to correct the underlying knee stability itself, not the effects of the July 16, 1999, dislocation.

2. Discussion.

Despite the respondents' arguments, the commission concludes the ALJ reached the correct result. First, as she points out, the applicant was able to work, without restrictions, from the February 1997 surgery to the July 1999 injury. There is no clear evidence of any dislocations during this period, much less any evidence of lost work time due to dislocations. Indeed, Dr. Tvedten specifically stated that while there were dislocations before the July 1999 injury, there had been none for "several" years on normal work duties and implied that the prior dislocations occurred with trauma. The commission's view of the record is that while the applicant may have begun to experience actual knee dislocations with low stress, everyday events, that began only after the July 1999 injury at issue here.

Nor can the commission conclude that the dislocation on July 16, 1999, was "idiopathic" or the simple manifestation of a pre-existing condition. The applicant's knee pain began with stepping off a forklift into a tire rut, and there is no dispute that event occurred. The commission cannot conclude that, when a person experiences the onset of pain upon stepping into a tire rut while getting down from a vehicle, the resulting symptoms are coincidentally manifesting from a pre-existing condition. Indeed, given the "new" findings of cartilage or chondral damage during Dr. Tvedten's 1999 surgery, the July 16, 1999, incident appears to have caused "breakage" or a "letting go" resulting in a compensable injury. See Lewellyn, supra, at 38 Wis. 2d 59.

Likewise, the commission cannot conclude that the applicant's injury was idiopathic. "Idiopathic" in this context means some force or thing peculiar to an individual. In worker's compensation cases, an injury is idiopathic when it arises from a force or source solely personal to the individual. The term is perhaps best understood in the workers compensation context in its common usage -- an idiopathic fall. An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work. That is, the idiopathic fall did not occur because of any special danger posed by work, such as a slippery floor, stairs, an incline or unlevel surface, or clutter; rather, the hypothetical fall occurs for some unknown reason, or because of an idiopathic weakness. In such cases, the employer is not liable for injuries caused by the fall. However, where the fall occurs because of an object on the floor, or while the applicant is in a zone of special danger, it "arises out of employment" and is compensable. See, generally, Kraynick v. Industrial Comm., 34 Wis. 2d 107 (1967) and Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969).

Applying these standards, an injury occurring upon stepping down from a forklift into a tire rut at a construction site cannot be viewed as idiopathic rather than the result of being in a "zone of special danger." Prior to stepping into a tire rut at the construction site, the applicant had been able to work without restrictions before then. The applicant may have had a weakened knee, given the prior injuries and the prior surgeries, but employers take their workers as they are under this state's worker's compensation law, predisposition to injury and all. (3)

For these same reasons -- the fact that the applicant was able to work without restriction from the 1997 surgery to July 1999 injury and the "as is" rule -- the commission must also reject the respondent's argument that the July 1999 work injury really is not the reason for the surgery that Dr. Tvedten performed in September 1999. Before the July 1999 work injury, the applicant was able to work without restriction and did not need surgery. After the work injury, the surgery was required to enable him to return to work. Under these facts, the commission cannot adopt the argument that the surgery was needed to cure an underlying weakness that predisposed the worker to a work injury, rather than the effects of the work injury itself.

cc: 
Attorney James L. Bartells
Attorney John S. Minix

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) This is causation by a work activity or event which precipitates, aggravates and accelerates a pre-existing degenerative condition beyond its normal progression. Lewellyn v. DILHR, 38 Wis. 2d 43, 59-60 (1968).

(2)( Back ) If symptoms of a pre- existing degenerative condition merely become manifest during work activity (as opposed to work activity or a work event directly causing "breakage" or aggravating a pre-existing degenerative condition beyond normal progression), the work activity cannot be said to have caused an injury. Lewellyn, supra, at 38 Wis. 2d 59-60

(3)( Back ) An employer remains liable for a work injury even if a worker is predisposed to injury or disability. Semons Department Store v. ILHR Department, 50 Wis. 2d 518 (1971). Thus, if a work accident precipitates disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). This, of course, is the "as is" rule that is the basis of the Lewellyn 3 theory of causation. Along the same lines, the commission has held respondents' liable despite medical opinions, that the worker might have eventually needed the same surgery to treat the pre-existing condition even if the work injury had not occurred. See: Ken Runde v. Brodbeck Enterprises, WC Claim No. 91041473 (LIRC, June 23, 1995) and James Klemp v. United Parcel Rhinelander, WC Claim No. 940035163 (LIRC, November 7, 1996).

uploaded 2001/07/02