WILLIAM L KNIGHT, Applicant

FEDDICK FORD INC, Employer

SOCIETY INSURANCE A MUTUAL 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 February 12, 2004
knighwi . wsd : 175 : 8  ND § 3.38

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review that the administrative law judge erred in determining the applicant's right knee injury from his fall at home on June 24, 2000, was compensable under the subsequent nonwork injury doctrine as found in Lange v. LIRC, 215 Wis. 2d 561, (Ct. App. 1997). The employer contends that the administrative law judge should have credited the opinion of Dr. Lemon, who examined the applicant on behalf of the employer. Dr. Lemon opined based on the physical therapy notes that the applicant's right knee had completely healed by August 11, 2000, any subsequent disability and need for surgery was due to a nonwork-related fall at home. Dr. Lemon opined that the applicant's injury at home in June 2000 would have had exactly the same effect even if the alleged on the job injury of March 3, 2000, had never occurred.

The applicant testified that he injured his right knee while working in March 3, 2000, when he walked past the bumper of a pick-up truck and struck his right knee on the bumper, and immediately experienced severe pain in the outside of his right knee. The applicant testified he subsequently had instances in which his knee would give out but he never fell, and was able to catch himself and engage the knee before suffering any serious injury. However, the applicant testified that on June 24, 2000, his knee gave out and he fell hitting his knee on the ground, and he had severe pain in the knee joint and on the outside of the right knee.

The applicant underwent surgery with Dr. Wisnefske on November 27, 2000, for meniscus tears with meniscectomies, and Dr. Wisnefske shaved chondroplasties in the medial femoral condyle and trochlear groove, but he did not do anything surgically to the medial collateral ligament or any other ligaments in the applicant's right knee. The applicant testified that between the work incident on March 3, 2000, and the fall at home on June 24, 2000, the pain in his right knee stayed at essentially the same level, and although he had give away episodes that caused him to catch himself he did not fall due to any of those episodes until June 24, 2000.

Dr. Wisnefske's initial treatment notes on June 28, 2000, indicate the applicant was having problems with his right knee dating back to the past March when he was injured with the employer, when he slipped and hit his knee against the bumper of a car, and ever since that time he has had recurrent episodes of the knee giving away, feeling unstable and unreliable. The applicant's operative notes on November 27, 2000, document mild to moderate osteoarthritis in the right knee, and medial and lateral meniscal tears. Dr. Wisnefske stated in his WC-16-B dated December 18, 2002, the applicant injured his right knee when he slipped and hit it against the bumper of a car while working for the employer on March 3, 2000, and he suffered medial and lateral meniscal tears which were due to the work injury. Dr. Wisnefske found that the applicant's lateral meniscal tears were due to his work injury, and the meniscal tears led to his knee giving way causing the applicant to fall on June 24, 2000, leading to the need for further treatment, surgery and disability.

The evidence indicates the applicant reported his knee giving away from time to time during the period between April and June 2000, and the physical therapy notes on April 11, 2000, note that the applicant continued to have soreness in his right knee and there was also some residual swelling. The applicant's testimony of the ongoing periods when his knee would give out is consistent with Dr. Wisnefske's history, as well as the history given to Dr. Lemon. The commission credits the applicant's testimony and finds it to be credible and consistent with the medical records.

The evidence does not indicate the applicant had any prior right knee problems before the work incident on March 2000, although there was evidence of a preexisting degenerative condition. Dr. Lemon characterized the applicant's injury on March 3, 2000, as only a contusion, however, it is clear from the medical records that the applicant had severe knee pain and swelling, and need for treatment as well as physical therapy following the March 3, 2000 injury.

The administrative law judge appropriately noted that this case falls under the doctrine of a compensable injury due to a subsequent nonwork injury. Under this theory if a compensable injury is a substantial factor in bringing about a later nonwork injury, then the nonwork injury is compensable as well. In this case, the medical evidence established that the applicant's work injury in March 2000 led to his knee giving away and his subsequent fall at home, leading to the need for further treatment and disability. Therefore, the commission finds that the applicant's right knee injury from the fall at home on June 24, 2000, was compensable under the subsequent nonwork injury doctrine as held in the case of Lange v. LIRC.

In addition, the commission affirms the administrative law judge's order of 10 percent permanent partial disability at the right knee. Dr. Wisnefske found that the applicant had suffered 19 percent permanent partial disability at the right knee, and Dr. Lemon opined that the applicant had suffered 10 percent permanent partial disability. The applicant specifically indicated in his brief to the commission that he did not challenge the administrative law judge's decision that he suffered 10 percent permanent partial disability rather than the 19 percent permanent partial disability found by Dr. Wisnefske. In this case, the administrative law judge appropriately noted the applicant's strong recovery from his right knee problems, and his ability to do some walking although more limited than he had done in the past, and his objective examination which found full knee extension with only a five degree loss in the flexion, and no ligament laxity and a normal gait with slight medial joint line tenderness. The evidence does not indicate that Dr. Lemon's assessment of 10 percent permanent partial disability at the right knee was based on an obvious error and is affirmed. The commission also affirms the finding that the applicant suffered further temporary total disability due to his right knee injury and surgery to March 7, 2001.

cc: 
Attorney William A. Wulf
Attorney David A. Piehler

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