GLENN MAY, Applicant

DAIMLERCHRYSLER CORPORATION, Employer

DAIMLERCHRYSLER CORPORATION, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's findings and interlocutory order dated September 29, 2003. Briefs were submitted by both parties. At issue is the nature and extent of disability from the applicant's left knee injury on April 19, 1999.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the findings and interlocutory order of the administrative law judge. The commission makes the following:

Pursuant to the commission's decision in Hellendrung v. Wal-Mart, Claim No. 1999-039147 (LIRC Feb. 23, 2001), the evidence supports the finding that a minimum 20 percent permanent partial disability at the left knee is warranted.

Also delete the first full paragraph on page 5 of the administrative law judge's findings of fact and substitute therefor:

Twenty percent permanent partial disability at the left knee equals $15,640 (85 weeks at $184 per week), from which the previously paid $7,820 shall be deducted, leaving a balance of $7,820 due. Pursuant to Wis. Stat. § 102.26, the attorney's fee is fixed at 20 percent for a total of $1,564. The balance of $6,256 is payable to the applicant in a lump sum.

Delete the administrative law judge's interlocutory order and substitute therefor all except the first sentence of the commission's interlocutory order set forth below:

Now therefore this:

The findings and interlocutory order of the administrative law judge are affirmed in part and modified in part in accordance with the above findings. Within 30 days from the date of this order the employer shall pay to the applicant Glenn May, as accrued compensation, the sum of $6,256 lump sum and to Attorney Richard Fortune as attorney's fees the sum of $1,564. Jurisdiction is reserved for such further findings and order as may be warranted.

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed May 7, 2004
maygl . wmd : 175 : 9  ND § 5.18

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserted in its petition for commission review the administrative law judge erred in determining the applicant suffered 25 percent permanent partial disability at the left knee as a result of his work injury on April 19, 1999. The employer contends that the commission should vacate the holding in its prior decision in Hellendrung v. Wal-Mart. However, the administrative law judge appropriately noted that in Hellendrung the commission ruled that the preamble to Wis. Admin. Code § DWD 80.32(1) and its footnote support the proposition that the principles applicable to back surgeries are interchangeable with other surgical procedures, and therefore as the administrative code provides additional minimums for repeat spinal surgeries, it also provides additional minimums for repeat surgical procedures for the knee. The commission agrees with the administrative law judge that administrative code § DWD 80.32(4) provides for and mandates an additional ten percent for a repeat ACL repair for the same work injury as was performed in this case.

The commission reaffirms its findings in the Hellendrung decision that any deduction for preexisting disability as provided for under DWD § 80.32(1) is most appropriately applied to previous losses of range of motion and amputations, but not to the listed surgical procedures in DWD § 80.32. The commission finds and reaffirms its holding in the Hellendrung decision which is in accord with the commission's practice and with the intent of the worker's compensation statute, that when an applicant must undergo the procedures listed in DWD § 80.32, the minimum amount should be awarded each time the applicant undergoes a listed procedure such as an ACL reconstruction, whether or not a physician assesses the minimum permanent disability. In this case, DWD § 80.32 provides a ten percent minimum for an ACL reconstruction and the applicant has undergone that surgery on two occasions.

The evidence does not establish that the applicant is entitled to 25 percent permanent partial disability. Dr. Ansari, the applicant's treating surgeon, initially awarded the applicant 15 percent permanent partial disability at the left knee in April 2001 following the first ACL reconstruction. However, following the applicant's second ACL reconstruction in July 2001 Dr. Ansari noted in October 2001 that the applicant had regained full strength in his knee and the atrophy in the quadriceps had been eliminated and the applicant had a very stable knee. Dr. Ansari stated in his notes on January 29, 2002, that the applicant had regained full strength in his knee and he awarded the applicant ten percent, and specifically noted that the applicant has ten percent permanent partial disability to the left knee due to his ACL reconstruction and his permanent partial disability has not changed due to the re-do of his anterior cruciate ligament. The commission interprets Dr. Ansari's statement to assert that he now believes that the applicant has a total of ten percent permanent partial disability at the left knee following a second ACL reconstruction and not the 15 percent initially assessed, given the improvement in the applicant's condition as noted in Dr. Ansari's treatment records in October 2001 and January 29, 2002. However, the applicant is entitled to a minimum of 10 percent permanent partial disability at the left knee for each ACL reconstruction surgery pursuant to DWD 80.32. Therefore the commission has amended the administrative law judge's order to find that the applicant is entitled to ten percent permanent partial disability at the left knee due to each of his ACL reconstruction surgeries for a total of 20 percent permanent partial disability at the left knee.

cc: 
Attorney Richard A. Fortune
Attorney Thomas M. Rohe

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