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

SHIRLEY S HALL, Applicant

DAIMLERCHRYSLER CORP, Employer

DAIMLERCHRYSLER CORP, Insurer

WORKER'S COMPENSATION DECISION
, Claim No. 2001-037678

The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded right knee injury occurring on January 6, 2000.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:

MODIFIED FINDINGS


Add the following two sentences after the second sentence of page four of the administrative law judge's decision:

"Prior to the beginning of testimony at the hearing held in this matter on September 10, 2002, the parties agreed that the applicant had received $5,239.11 in nonindustrial sickness and accident benefits during her periods of temporary total disability. This amount will be offset against the additional temporary total disability due the applicant."

In the second and third lines of the administrative law judge's INTERLOCUTORY ORDER, substitute "Twenty-eight thousand seven hundred sixty-eight dollars and seventy-three cents ($28,768.73)" for "Thirty-two thousand nine hundred sixty dollars and two cents ($32,960.02)."

In the thirteenth and fourteenth lines of the administrative law judge's INTERLOCUTORY ORDER, substitute "Thirteen thousand two hundred forty-seven dollars and forty-two cents ($13,247.42)" for "Fourteen thousand two hundred ninety-five dollars and twenty-four cents ($14,295.24)."

All the rest and remainder of the administrative law judge's FINDING OF FACT and INTERLOCUTORY ORDER are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 15, 2004
hallsh . wrr : 185 : 8 ND § 5.18  § 5.27

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission agreed with the administrative law judge that the applicant's testimony concerning how the injury to her knee occurred on January 6, 2000, was credible. Furthermore, Dr. Ninomiya's opinion was credible that this injury aggravated and accelerated the applicant's preexisting right knee condition beyond normal progression, resulting in the total knee replacement performed on March 6, 2001. Of course, that surgery necessitated the repeat surgery done on April 18, 2001.

The minimum disability rating for a total knee replacement is 50 percent (Wis. Admin. Code ch. DWD 80.32(4)). The applicant had complications with this surgery, including an additional surgery. Dr. Aschliman also acknowledged that a greater level of disability is warranted due to loss of motion, and assessed permanent partial disability at 60 percent. Considering the less-than-satisfactory result of the surgery, Dr. Aschliman's assessment is accepted as credible.

The employer points out that Dr. Aschliman attributed "in the range of 20 percent" of his assessment to preexisting disability to the knee, and asserts that this percentage should therefore not be compensable. However, even though the applicant underwent a right knee arthroscopy on August 12, 1997, there is no record that a permanent disability rating was assessed in 1997, or anytime thereafter prior to the injury of January 6, 2000. Similarly, there is no record of physical restrictions or inability to work after the applicant last saw Dr. Raasch on October 29, 1997. In his clinic note of that date, Dr. Raasch instructed the applicant to follow up with him in "a couple months," but the applicant did not return to him for treatment. In fact, she did not again feel the need to seek treatment for her knee until the injury of January 6, 2000. Dr. Aschliman did not examine the applicant until October 5, 2000. All these facts make Dr. Aschliman's attribution of 20 percent permanent partial disability to the preexisting knee condition speculative.

Finally, the commission modified the administrative law judge's order to reflect a reduction in the temporary total disability paid to the applicant, due to offsetting sickness and accident benefits. The attorney fee attributable to the amount of these sickness and accident benefits was also deducted.

cc: 
Attorney Richard A. Fortune
Attorney Karl A. Vandehey

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