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

DAVID BEAN, Applicant

STORA ENSO NORTH AMERICA CORPORATION, Employer

STORA ENSO NORTH AMERICA CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002010019

The self-insured employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 28, 2003. The applicant submitted an answer to the commission and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is November 22, 1941, was employed as a production worker for the employer, a paper products manufacturer. He began his employment on August 24, 1960. On December 16, 2000, he was climbing a three-step metal stairway at work when his left knee buckled in pain. He caught himself on the railing and descended the stairway. He reported the incident to the company nurse, and she completed an injury report signed by the applicant, which described the incident as the applicant walking up the steps when his left knee "buckled." The applicant saw Dr. Stone on December 27, 2000, and Dr. Stone's nurse took a history indicating that the applicant's left knee "gave out on him" while he coming up some steps, and since that time the knee had been painful and swollen. Dr. Stone's personal clinic note indicates that "while he was working" the applicant's left knee "buckled and he had sudden onset of pain." Dr. Stone's history further indicated that the applicant "has had new onset and reinjury" of the left knee. Dr. Stone diagnosed a left medial collateral strain, and probable acute left patellar subluxation with secondary synovitis and local inflammation and tenderness.

Dr. Stone prescribed conservative treatment and referred the applicant to an occupational medicine specialist, Dr. John Williams. Dr. Williams saw the applicant on January 26, 2001, and an MRI performed that day showed a large degenerative tear of the medial meniscus as well as chondromalacia in the medial compartment of the knee. The applicant was sent back to Dr. Stone on February 7, 2001, and after reviewing the MRI, Dr. Stone diagnosed a medial collateral ligament strain and degenerative medial meniscus tear. He was not sure how old the meniscal tear was.

On July 9, 2001, Dr. Stone performed an arthroscopic repair of the applicant's medial meniscus. His postoperative diagnoses were: (1) degenerative arthritis of the left knee; (2) tear of the medial meniscus, post-traumatic; and (3) significant synovial hypertrophy and a large parapatellar plica. He indicated in his surgical notes that the meniscus tear " . . . could either have been traumatic or degenerative, or traumatic superimposed on degenerative." On July 19, 2001, Dr. Stone's nurse wrote the following note:

"Reviewing Dr. Stone's operative note, Dr. Stone stated that he could not be certain if this was from trauma or degeneration, but when I questioned Dr. Stone about this, he states Mr. Bean has explained to him that he had no prior problems with this knee, that when he was going up the steps, he had immediate pain, and therefore Dr. Stone would assume that this is a work-related injury."

Dr. Stone released the applicant for regular duty on October 11, 2001. He completed a WKC-16-B dated February 21, 2002, in which he checked the causation box indicating the work incident had aggravated, accelerated, and precipitated the applicant's preexisting left knee condition beyond normal progression. He assessed five percent permanent partial disability at the knee.

At the employer's request, Dr. David Mellencamp examined and evaluated the applicant on December 16, 2002. In his report dated January 13, 2003, Dr. Mellencamp opined that the applicant had a preexisting degenerative meniscal tear in his left knee which was not the result of any work-related incident or exposure. He based his opinion on his review of Dr. Stone's opinions rendered during the period Dr. Stone treated the applicant, and on the configuration of the meniscal tear.

Dr. Stone's ultimate opinion of work causation is undercut by his earlier ambivalence concerning whether the applicant's condition was traumatic or degenerative in nature, and by his failure to credibly explain how he arrived at his final opinion. The applicant points out that Dr. Mellencamp did not explain why he considered the configuration of the meniscal tear to point to degenerative rather than traumatic causation, but it is the applicant who bears the initial burden of proving work causation. Dr. Mellencamp's opinion in this regard could have been more detailed, but Dr. Stone merely checked the box without any explanation, which was unsatisfactory given the ambivalence inherent in his prior statements.

Dr. Stone's nurse's note quoted above further undercuts Dr. Stone's opinion. (1)   The note indicates that Dr. Stone based his opinion in part on the assumption that the applicant "had no prior problems" with his left knee. As previously noted, Dr. Stone's clinic note of December 27, 2000, referred to "new onset and reinjury" of the knee. From this it is inferred that the applicant had a prior left knee problem that Dr. Stone had forgotten about when he spoke to his nurse on July 10, 2001.

In addition, the credible inference from the injury report signed by the applicant, and from the histories taken by Dr. Stone and his nurse, is that the applicant's knee buckled of its own accord on December 16, 2000. This inference is also consistent with the applicant's direct testimony at the hearing that he felt left knee pain when he simply stepped on the first or second stairway step with his left leg. On cross-examination, he again acknowledged that his knee "gave out on [him]" on either the first or second step. The administrative law judge indicated in consultation with the commission that he inferred the meniscal tear was related to the fact that as the applicant stepped onto the stairway he assumed "an awkward posture to avoid protuberances" (2)   from the nearby machine. This was in reference to the applicant's credible testimony that he had to make a 45 degree turn to begin ascending the steps, and that when he would walk up the steps he had to "duck down a bit" to keep his head from hitting a "rope sheave rope pulley with a set of ropes that ran at an angle that went past your head." Hearing
Exhibits 5 - 7 are pictures showing the location and size of the steps, but the pictures are taken from downward-looking angles and do not show the rope sheave/pulley. The pictures do show that the 45-degree turn the applicant would make to face the stairway would be to the right, which it is inferred would put increased stress on his right knee, but no significant stress on his left knee. Neither does the commission consider the fact that the applicant may have had to "duck down a bit" to be significant in this case. The applicant did not mention ducking or any awkward movement in his injury report to the employer, or to Dr. Stone, or to Dr. Stone's nurse. Furthermore, it is inferred that a slight ducking down of his head would not have significantly increased the stress on his knee.

Considering these circumstances and consistent with Dr. Mellencamp's opinion, the commission finds that the applicant's onset of left knee symptoms on December 16, 2000, including his meniscal tear, were a manifestation of a preexisting degenerative condition unrelated to his work exposure.

NOW, THEREFORE, this

ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed April 22, 2004
beanda . wrr : 185 : 3  ND § 3.34

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The commission learned from consulting with the administrative law judge that it had no actual differences with him regarding the applicant's credibility. Rather, the reversal of his decision was based on the commission's inferences drawn from the medical records and opinions, as well as the applicant's unrebutted testimony, as explained in the above findings.

The commission did not consider the information submitted in Hearing Exhibit 2, because that exhibit was not timely submitted in accordance with the provisions of Wis. Stat. § 102.17(1)(d).

cc: 
Attorney Israel Ramon
Attorney Philip Lehner

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Footnotes:

(1)( Back ) This note was introduced into evidence by the applicant, without objection from the employer. Furthermore, it fits within the hearsay exception of statements for purposes of medical diagnosis (Wis. Stat. § 908.03(4)).

(2)( Back ) See the first line of page 4 of the administrative law judge's decision.

 

uploaded 2004/04/28