TOMMY THOMPSON JR, Applicant

J & L FIBER SERVICES INC, Employer

J & L FIBER SERVICES INC, Insurer
c/o EMPLOYERS INSURANCE OF WAUSAU

ZURICH AMERICAN INSURANCE COMPANY, 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 May 21, 2003
thompto . wsd : 101 : 3   ND § 3.37

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The applicant is a foundry worker who has underwent a knee replacement in 2000. He claims that the need for surgery is occupational, due to repetitive bending activities from 1995 to 1999 which were a material contributory causative factor in the progression of his condition following a prior surgery in 1995.

The ALJ found for the applicant, based on the opinion of the treating doctor, Dale Bauwens, M.D. The ALJ explained that he believed the applicant's work activities from 1995 to 1999 -- which included some heavy lifting and bending and twisting --  were sufficient to be at least a material contributory causative factor in onset and progression of the applicant's knee problem. He noted that under the "as is" rule, even if the employment exposure would not have caused disability in an otherwise healthy individual, the employer remains liable if the exposure caused disability in the applicant. Finally, he noted Dr. Bauwens extensive involvement with the applicant's medical treatment, as he was the treating doctor not only in 1999-2000, but also back in 1995.

The employer and Employers Insurance of Wausau (collectively, the respondent) appeal. The respondent points out that in his formal practitioner's report,
Dr. Bauwens stated that the applicant's knee problem in 1995 resulted from a specific work injury while the applicant reported repeatedly that he recalled no specific event in 1995. Citing the holding from Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) that opinions based on assumed facts that are not proven must be disregarded, the employer asserts that since Dr. Bauwens erroneously assumes a traumatic work injury in 1995, his opinion is insufficient to support an award. See also: Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959).

The respondent also contends that Dr. Bauwens did not address the applicant's "varus" condition identified by Dr. Lemon, nor did he supply any evidence that he understood the magnitude, duration and frequency of the applicant's job duties as they relate to the applicant's knee. On this point, the respondent points out that the applicant's duties, by 1997 or 1998 at least, became less strenuous. The respondent suggests Drs. Lemon and Rolnick display a superior understanding.

Finally, while the respondent acknowledges the "as is" rule, it points to holdings that an employer is not liable for any condition coincidentally comes or manifests itself while an employee is working, see for example Lewellyn v. DILHR, 38 Wis. 2d 43, 59, 60 (1968), and that the workers compensation law is not a general accident or group health insurance program, citing Newman v. Industrial Commission, 203 Wis. 258, 260 (1931).

Turning first to the assertion that Dr. Bauwens had a "bad history," the commission notes that in both Pressed Steel and Theisen, the employers offered competent medical testimony to the effect that the actual facts would have led to a different conclusion; in other words, that the misapprehension of the facts was material. In this case, the commission is not persuaded that Dr. Bauwens apparent misapprehension of whether the applicant sustained a traumatic or specific work injury in 1995 is a material mistake.

The applicant is seeking compensation for disability and medical expense from the return of his knee pain leading to his knee replacement surgery in 1999. On that question, Dr. Bauwens' opinion does not depend on a specific injury in 1995, but on heavy work exposure from 1995 to 1999. IME Lemon, of course, explains that a menisectomy decreases the knee's shock absorbing capability. The commission understands Dr. Lemon to mean that a menisectomy adversely affects the knee's shock absorbing capability, regardless of the reason for the menisectomy. In short, the commission concludes that the applicant's disability and need for treatment in 1999 caused the effect of heavy work activity between 1995 and 1999 on the knee as compromised by the loss of its shock absorbing capability after the April 1995 menisectomy and October 1995 debridement procedures. The effect of the subsequent work exposure from 1995 to 1999 would have been the same regardless of whether a traumatic event had caused the 1995 procedures.

Dr. Lemon asserts that the applicant would have needed a knee replacement at some point anyway, regardless of the applicant's employment or even if he were unemployed. However, an employer is liable for work exposure which hastens the progression of a condition to disability, even if the disability might have eventually occur anyway simply from everyday living. 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. Thus, the commission has held employers 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). The commission is persuaded that the applicant's work exposure was a material contributory factor in the progression of the applicant's knee condition to the point of requiring a knee replacement, even if he may have eventually needed a knee replacement anyway.

If there is a material inaccuracy in Dr. Bauwens' opinion, it would turn on the accuracy of Dr. Bauwens' observation in his March 3, 2000, note that the applicant "continue[d] to participate in [a]... physically challenging job occupation." However, after reviewing the testimony of the applicant -- which the ALJ found credible -- and the pictures at exhibit E, the commission concludes that Dr. Bauwens had an accurate understanding of the applicant's employment, the decrease in strenuousness with the new "closer" machine in 1997 or 1998 notwithstanding.

Regarding Dr. Bauwens' failure to discuss the varus issue, the commission observes that neither of IME Rolnick's reports appear to discuss that condition either, even though Dr. Rolnick reviewed Dr. Lemon's reports mentioning the varus condition. Moreover, as explained above, even if the applicant's
"pre-existing degenerative joint disease is related to his bilateral varus alignment of his knees" as Dr. Lemon opined (April 30, 2001, report of Lemon, page 6), that does not rule out the contributory role played by work exposure in the progression of the condition. If work causes 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). In other words, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).

The "as is" principle is perhaps stated most directly in Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971), where the supreme court wrote:

"Furthermore, an employee's predisposition to injury does not relieve the present employer from liability for workmen's compensation. In Green Bay Warehouse Operators, Inc. v. Industrial Comm. (1963), 19 Wis. 2d 11, 119 N. W. 2d 435, this court rejected a contention that a pre-existing tendency to instability of the shoulder joint, with a tendency to dislocate, relieved the employer of the consequence of liability for medical payments. The court quoted the following from M. & M. Realty Co. v. Industrial Comm. [at 267 Wis. 63]:

'. . . . [A]n employer takes an employee 'as is' and the fact that he may be susceptible to injury by reason of a pre-existing physical condition does not relieve the last employer from being held liable for workmen's compensation benefits if the employee becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual.'"

The respondent, of course, points out that the "as is" rule does not automatically make an employer liable for any injury from a pre-existing condition, even when employment does not cause the disability. However, as explained above, the commission concludes that the applicant's employment exposure did, in fact, cause his disability.

cc: 
Attorney James C. Gallanis
Attorney Joseph Danas
Attorney Patrick J. Mitchell

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