WILLIAM J METZEN, Applicant

CITY OF MILWAUKEE, Employer

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 April 30, 2002
metzenw . wsd : 101 : 1  ND § 3.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The applicant, an identification technician for the Milwaukee Police Department, has undergone a right knee replacement surgery. He claims that six traumatic work injuries to his right knee are at least a material contributory causative factor in the progression of his knee condition, which his surgeon opines is work-related. The employer, for its part, claims the work injuries play no causal role in the progression of the condition to the point of surgery and resulting permanent disability.

The ALJ found for the applicant. She explained that both treating doctors, Shaffer and Yoder, associate the applicant's problems with his six traumatic injuries. She also noted that the left knee condition was comparatively less severe, and she would have expected the two knees to progress at the same rate if the condition were affected only by natural factors and not the work injuries to the right knee.

The employer appeals. It argues that the six incidents were simply that, just six incidents, and cannot amount to occupational disease. The employer points to prior commission decisions which emphasize that -- in assessing occupational disease -- the medical experts should weigh the duration of the harmful exposure, the magnitude of the exertional forces, and the frequency of performing the job duties in question. Gonsowski v. Jerome Foods, WC Claim No. 89-071385, 1991 WL 477193 (LIRC, November 13, 1991), and Belknap v. Wisconsin Tissue Mills, WC Claim Nos. 1989069201, 1998029690, 1995052832 LIRC, January 1999).

The ALJ, however, found that the six traumatic work injuries precipitated, aggravated and accelerated the applicant's degenerative arthritis in his right knee beyond its normal progression. In other word, she found causation under the test set out in Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). Beyond that, neither Gonsowski nor Belknap involved repeated work injuries as a basis for occupational disease. Both cases instead involved claim that work activity, benign or non- injurious as a single act viewed in isolation, was injurious through repetition. Thus, those cases, and the emphasis they put on the nature of the job duties involved, may be distinguished from the situation here, where the claim of occupational disease is based on repetitive traumatic work injuries, each one itself significant enough to generate a WC injury report form.

The concept of "occupational disease" includes not only repetitive day-to-day activity or exposure, but also repetitive traumatic injuries. In Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 12d 655, 659-663 (Ct. App. 1982), for example, the court held that repeated back injuries may be compensable as occupational diseases. Indeed, the Shelby court recognized the analytic similarity between causation by occupational disease, and by traumatic events which precipitate, aggravate, and accelerate a pre-existing degenerative condition, in such cases. Shelby, at 109 Wis. 2d 662-663. (1) hn

Finally, the employer cites Kiel v. Village of Ashwaubenon, 1999 WI Wrk. Comp. LEXIS 445 (LIRC, December 20, 1999) for the proposition that the lack of evidence as to the particular physical activities regularly performed by the applicant on the job or the frequency of such activities was a significant factor in the Department's dismissal of the application. However, in Kiel, the injured worker's medical expert did not describe the traumatic events, and was apparently not even aware they had occurred, but simply concluded that Mr. Kiel's disability resulted from some unspecified work exposure. That clearly is not the case here, as the various traumatic injuries are mentioned in the notes of Dr. Yoder, and the "In the matter of reports" are attached to his practitioner's report.

In the commission's view, this case turns primarily on whose opinion seems more credible. The commission, like the ALJ, finds Dr. Yoder's more credible. The applicant has several documented injuries to right knee, including some that are clearly more than cuts or lacerations but involve blunt trauma to the knee. He relates the onset of chronic pain to the trauma of the fall on steps outside of an apartment in 1991, which the Mayo article cited by Dr. Guten itself suggests is significant.

The applicant required surgery after the May 1996 fall in the vacant lot. Dr. Guten dismisses this as something of a coincidence, noting that the changes shown on surgery and in the MRI are "old." Again, while the degenerative changes may have had their genesis at some earlier point in the progression of the applicant's condition, that does not mean that the twisting fall in 1996 did not precipitate, accelerate, or aggravate the applicant's pre-existing condition beyond normal progression (or was not a material contributory causative factor in the progression of that pre-existing condition), causing the pre-existing condition to become permanently more symptomatic and leading to the need for surgery.

Further, Dr. Guten's observation that some nonsymptomatic individuals have "false positive" MRIs seems less relevant to this case, where the applicant is not nonsymptomatic and every one agrees he has a painful degenerative condition as shown on the MRI. Further, while Dr. Yoder did not mention the work connection before the surgery, his assistant (Zalinksi), Dr. Shaffer and Dr. Shaffer's assistant (Thompson) all did. Contrary to Dr. Guten's suggestion, a work connection was not something the applicant just came up with after his first surgery. See exhibit 1, Guten report dated May 18, 1997, page 4.

Finally, it is significant that the applicant's right knee is more symptomatic than his left, which has only begun to exhibit symptoms in 2000 two years after the right knee replacement. The commission appreciates that Dr. Guten suggests that normal degenerative arthritis sometimes presents in that kind of relatively unilateral fashion. Under the facts of this case, however, the commission views the difference between the knees as evidence supporting the conclusion that the series of work accidents caused the advanced progression of the right knee condition. (2)

cc: 
Attorney Jonathan Cermele
Attorney Heidi Wick Spoerl

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

(1)( Back ) The significance of the distinction in this case seems to be limited to whether the "date of injury" occurred with the slip-and-fall of May 24, 1996 or with the "date of disability" on June 5, 1996 when the applicant lost time to seek treatment for the symptoms of the condition. The two-week difference in possible dates of injury does not affect the benefit rate, nor apparently the liability of the self-insured employer.

(2)( Back ) The court in Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191 (1975) held that the Lewellyn rule "is that the work incident be such as induces or triggers an earlier onset of a deteriorative condition." By the same token, the occupational disease test is formulated to find causation when the work exposure is a factor in the progression -- as opposed to simply the onset -- of a condition. 

uploaded 2002/05/13