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

SHAWNA FOLTMAN, Applicant

J J'S SPORTS BAR & GRILL, Employer

WISCONSIN WORKER'S COMPENSATION UNINSURED EMPLOYER'S FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No.  98051061


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 August 10, 2001
foltmas . wsd : 101 : 3  ND § 5.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Facts and posture.

The applicant was born in 1976. Her history is significant for a left knee injury, requiring surgery, after falling out of a bunk bed as an adolescent in 1993.

The applicant was injured at work on February 20, 1998, as she hung up her coat to begin her shift. She accidentally stepped into an open stairway, fell part way down the stairs, and struck her knee. She stayed at the bar until her relief arrived, and then one of the patrons took her to the hospital.

After considerable treatment and continuing symptoms, the applicant underwent a diagnostic arthroscopic surgery to her left knee on July 8, 1998. The surgical report mentions a large ball of scar tissue over the anterior knee which blocked the joint. The scar tissue was removed, and a series of transverse excoriations on the femoral condyle were observed. (In lay terms, this means sidewise scratches on a part of the head of the bone in the thigh where it joins the bones of the lower leg at the knee.) The doctor also noted the effect of the prior arthroscopic surgery in 1993, specifically the removal of parts of the medial meniscus. More scar tissue was observed with further probing. The doctor noted there was still a fairly large area of "obvious grade 2 articular damage to the femoral condyle," but no obvious areas of raw bone.

Dr. Knavel discussed his surgical findings in an office note dated July 9, 1998. He reported he did not find too much correctable, though there was a question of the anterior cruciate ligament being torn. He noted the medial meniscus did not show any new tears, and that most of the posterior horn had been resected.

When the applicant continued to experience postoperative symptoms, Dr. Knavel referred her to James Stone, M.D. In addition, Dr. Knavel wrote a "to whom it may concern" letter dated September 9, 1998. This letter noted his prior treatment, and stated that he did not think the applicant could work until her knee problem was cleared up.

The applicant then saw James Stone, M.D., on October 20, 1998. He noted the applicant's 1993 injury when she fell from a bunk bed, and her February 1998 injury when fell she down stairs. He noted, too, the surgical procedures done after each injury. He noted the findings noted by Dr. Knavel in the second surgery, including the scar tissue and excoriations on the femoral condyle. He noted that the July 1998 surgery performed by Dr. Knavel did not provide pain relief.

On examination, Dr. Stone noted there was no definite knee effusion, that she had a full range of motion, and that the knee was stable to valgus and varus. He wanted to do a bone scan, and look at the photographs from the arthroscopic procedures.

On November 3, 1998, Dr. Stone saw the applicant again after her bone scan. The scan showed some increased uptake in all 3 compartments of the left knee of mild degree suggestive of post-traumatic degenerative changes. Looking at the photographs from the arthroscopies, the doctor noted that he could not document the lateral meniscus, that the medial meniscus looked good, and that there were definite degenerative changes over the medial femoral condyle. He continued:

"I reviewed the findings with her. At this point I suggested further conservative care as she clearly has some post-traumatic degenerative changes and is only about 3 months post-operative. She is apparently planning on spending the next three months in Virginia. She will return to the office after that period of time for further evaluation. I did discuss the alternatives, including further conservative care, use of anti-inflammatories, cortical steroid injection, repeat MRI or arthroscopy."

In mid-December 1998, applicant moved to Virginia because her boyfriend obtained work in that state and she wished to be with him. She returned to Wisconsin in March 1999. While in Virginia she worked for about two weeks at a Subway Sandwich shop, though she testified she had to quit because of her knee. She also testified she sought emergency room treatment for her knee while in Virginia, though there are no notes for this visit.

Upon returning to Wisconsin in March 1999, the applicant went back to Dr. Stone in April 1999. His note on this date reports that the applicant continued to complain of poorly localized left knee pain, with no definite swelling or locking. On examination, his observations were essentially the same as in November 1998, no knee effusion or limitation of range of motion, some tenderness about the patella medially and laterally, and that the knee was stable to valgus and varus. He reported:

"I discussed alternatives including conservative treatment, anti- inflammatory medications, cortisone steroid injection, repeat MRI or arthroscopy. At this point I do not think repeat MRI is going to give us that much information. I discussed the reasonableness of conservative care. The patient is adamant that she wants to have another arthroscopy to completely look at the knee joint and rule out further correctable internal derangement. The risks of the procedure were discussed in detail including the distinct possibility that despite having arthroscopy she might not be better and the small possibility that she could have increased discomfort after an arthroscopy. All of her questions were answered. She is going to seek workers compensation approval for surgery."

A year later, in May 2000, the applicant was examined by Gary N. Guten, M.D. He describes the work injury as involving a fall halfway down the stairs, causing a bruise to the left kneecap when she struck a step. He noted, too, the prior work injury, and discussed the treatment outlined above.

On examination, Dr. Guten noted the applicant arose comfortably from her chair, walked with smooth gait, and could lightly run and hop with minimal guarding. Squatting caused pain, however, as did simulated stair-climbing. Indeed, on stair climbing the doctor reported "very trace crepitation." Dr. Guten reported the x-ray was compatible with a diagnosis of traumatic chondromalacia of the patellofemoral joint and medial femoral condyle.

Indeed, the doctor's diagnostic assessment was traumatic chondromalacia of the patellofemoral joint, left knee, related to the work injury of 1998. He opined that treatment to date had been appropriate and necessary. He recommended a chondromalacia program consisting of: straight leg raising exercises, patella support brace, and analgesics. He found no indications for further surgery.

Regarding disability he wrote:

"Temporary Total Disability (back to work)- It is my opinion that by the time Dr. Stone had seen her, which approximately 8 months after surgery [sic]-on 10/20/98-she should have been able to return to work with no restrictions other than to be cautious with stair climbing and excessive squatting.

"Healing Plateau- When Dr. Stone saw her on 4/7/99 she was essentially at a stable plateau, no longer requiring the use of Vicodin or steroid injection.

"Permanent Partial Disability- Because of the persistent pain syndrome across the anterior aspect of her left, knee because of the roughness or chondromalacia of the patella interfering with dancing, stairs and squatting-she has a 5% PPD compared to an amputation of the left knee."

Dr. Guten's prognosis was that the applicant would remain at a stable plateau as long as she did not re-aggravate her knee with activities such as dancing. He recommended conservative treatment in the future, no surgery, and opined she had no work restrictions other than caution with stairs and squatting.

Dr. Guten issued a second report on June 1, 2000. In this report, Dr. Guten corrected his May 2000 report to reflect that October 20, 1998, the date on which he would have released the applicant to work, was only about 3 ½ months after surgery not eight months. He reiterated his opinion that she was temporarily and totally disabled only until October 20, 1998, but reached a stable plateau or healing plateau as of April 7, 1999.

Based on this record, the ALJ found a compensable injury, paid temporary total disability to April 7, 1999, awarded a five percent permanent partial disability, and paid the claimed medical expense. He issued both a bench decision on the date of the hearing (October 2, 2000) and a confirmatory written decision on October 24, 2000.

The ALJ explained his decision regarding temporary total disability at pages 4 and 5 of his bench decision. He notes that Dr. Guten did discuss two potential dates, October 20, 1998, and April 7, 1999, but he noted that Dr. Guten did not describe the earlier date as a healing plateau. He noted, too, that saying one can return to work is not the same as saying healing has ended. See Wis. Stat. § 102.43(2) and (3) and Wis. Admin. Code § DWD 80.47. The ALJ also reiterated Dr. Guten's observation that by April 7, 1999, the applicant no longer needed prescription pain medication, cortisone injection, or further treatment.

The Wisconsin Uninsured Employer's Fund (UEF) appeals, seeking a shorter period of temporary total disability. Causation, liability for medical expenses, extent of permanent partial disability, and the interlocutory character of the order are not in dispute.

Regarding the award for temporary total disability, UEF asserts the applicant in fact reached an end of healing in October 1998 because she did not continue to submit to medical treatment after that point (but instead left the state and obtained work), and because IME Guten opined she could work then with the same restrictions (caution with stair climbing and excessive squatting) as he opined were permanent after she reached "a stable plateau" on April 7, 1999. UEF acknowledged that Dr. Guten said the applicant had reached a plateau in April 1999, but UEF asserts Dr. Guten's report also indicates there was no change in condition or work restrictions after October 1998. UEF also contends that the applicant was not submitting to any medical treatment between November 3, 1998, and April 7, 1999.

2. Discussion.

In general, temporary total disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Admin. Code § DWD 80.47. The "healing period" is:

"the period prior to the time when [an injured worker's] condition becomes stationary. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his work injury and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit."

Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932). See also ITW Deltar v. LIRC, 226 Wis. 2d 11, 21-22 (Ct. App. 1999). In other words, the healing period ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). Further, "the commission generally denies disputed periods of temporary disability unless supported by expert medical opinion," Clausing v. Water Services of America, et al., WC claim nos. 1994-031641 and 1998-000785 (LIRC, September 24, 1999).

As UEF points out, a worker must, by definition, be submitting to treatment and convalescing during a "healing period." There are, of course, exceptions or special applications of this rule, permitting the continuation of temporary disability compensation when a worker may not be treating and convalescing from a work injury in the strictest sense. Thus, under some circumstances, a worker may receive temporary disability even though he or she is not submitting to recommended treatment such as surgery because the employer refuses to pay for the treatment, (1)  or where a recommended treatment is postponed or delayed while an underlying condition is treated as a prerequisite to treating the work injury. (2)

In this case, the commission cannot conclude that the applicant had discontinued treating when she moved to Virginia. In November 1998, noting the applicant's imminent three-month move to Virginia, Dr. Stone suggested "further conservative care" noting the applicant "clearly has some post-traumatic degenerative changes and is only about 3 months post-operative." He discussed treatment options including "further conservative care, use of anti-inflammatories, cortical steroid injection, repeat MRI or arthroscopy." He wanted her to return for further evaluation when she returned. Dr. Stone did not release the applicant to work at that time, at least he expresses no disagreement with Dr. Knavel's restriction that she not work until her knee problem cleared up. Indeed, Dr. Stone's observation that the applicant was only three months post surgery in November 1998 anticipated further healing with continuing conservative care.

In short, the commission reads Dr. Stone's November 1998 note to set out a treatment regimen of continued conservative care -- keeping the applicant off work -- for three additional months until he saw her again. His notation that it was only three months after the surgery leads to the conclusion that the doctor expected further improvement with convalescence. He did not release the applicant to return even to light-duty work in November 1998, nor did he release her from treatment, nor did he otherwise indicate that treatment and convalescence were at end. Rather, he instructed the applicant to return to him in three months.

Further, of course, Dr. Guten himself opined on two occasions that the applicant did not reach an end of healing until April 1999. While he also opined in May 2000 that she could have worked using caution with stairs and squatting in October 1998, the ALJ correctly noted that that is not the same as saying healing ended. Further, the persuasiveness of Dr. Guten's after-the-fact release to work is undercut by his erroneous initial assumption that eight months had passed from the date of surgery to October 20, 1998, when in fact only about 3½  months had passed.

cc: 
Attorney David T. Smith
Attorney Michael C. Frohman


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Footnotes:

(1)( Back ) Punzel v. Elliot, et al., WC Claim No. 1996042092 (March 3, 2000).

(2)( Back ) ITW Deltar v. LIRC, supra.

 


uploaded 2001/09/05