LEVI THUNDER, Applicant

RED CEDAR STEEL ERECTORS, Employer

WAUSAU UNDERWRITERS INSURANCE 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, except that it makes the following modifications:

1. Delete twelfth paragraph of the ALJ's Findings of Fact and Conclusions of Law, and substitute:

"Applicant Thunder sustained permanent partial disability at 5 percent at the left knee as a result of the medial meniscus repair and 50 percent at the left knee as a result of the total knee arthroscopy. However, the applicant had prior disability to his left knee at 7.5 percent due to the 1985 injury, which neither Drs. Drawbert nor Ihle accounted for in their disability estimates. Accordingly, the applicant is entitled to compensation at 47.5 percent compared to amputation at the left knee, or 201.875 weeks at the weekly rate of $184 per week, for a total of $37,145, all of which is accrued.

"The additional amount awarded hereunder in temporary disability equals $12,185.17, which is the sum of the compensation for temporary disability for both periods identified above ($23,752.17) less $11,567 previously paid. The additional amount awarded in permanent disability compensation is $33,235, or the total of $37,145 less a prior payment of $3,910. In all, $45,420.17 in additional disability compensation is awarded.".

2. Delete the fourteenth paragraph on page five of the of the ALJ's Findings of Fact and Conclusions of Law, and substitute:

"The applicant agreed to an attorney fee of 20 percent, which shall be awarded on the amount of additional compensation awarded hereunder, or $9,084.03. This amount shall be paid to the applicant's attorney within 30 days; the remainder, $36,336.14, shall be paid to the applicant within 30 days."

3. Delete the first paragraph of the ALJ's Interlocutory Order and substitute:

"Within 30 days, the respondent and its insurer shall pay to the applicant, Levi Thunder, Thirty-six thousand three hundred thirty-six dollars and fourteen cents ($36,336.14) in disability compensation and to the applicant's attorney, Manlio Parroni, Nine thousand eighty-four dollars and three cents ($9,084.03) in attorney fees."

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

Dated and mailed June 23, 2005
thunder . wmd : 101 : 8   ND § 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant was born in 1944. He is a steel worker. He hurt his knee in 1985 when he was putting in rebar as concrete reinforcement. The jobsite was muddy and, as he turned 50 or 60 pounds of rebar on his shoulder, his foot sunk in the mud and he twisted his knee. The applicant underwent an arthroscopic meniscectomy on May 13, 1985, performed by Dr. Johnson. Then, when the applicant continued to experience symptoms upon returning to work he underwent an arthroscopy and further surgery, specifically a procedure where the doctor explored the knee and removed a "cartilaginous" loose body. In July 1986, the applicant was released to full activities with limited squatting and stair climbing. He testified, however, he returned to work and--his restrictions aside--did a lot of twisting and stair climbing. The applicant still saw Dr. Keene about knee pain and knee problems on three occasions in 1987 and four occasions in 1989. Dr. Keene assigned permanent disability at 10 to 15 percent for this work-related injury; the applicant received compensation at 7.5 percent.

The applicant did not treat for his left knee from 1989 to the work injury at issue here which occurred in September 1999. According to the applicant, he reinjured his knee on September 8, 1999. On that day, he was installing a bar joist, a metal roof support attached to block wall in a school addition that was under construction. The work required welding. The applicant walked across the joist to the block walls carrying about 50 pounds while pulling his welding lead across the joist in preparation for welding. When he reached the block walls, he turned to his left, and twisted his left knee. He immediately experienced severe pain in his left knee.

Thereafter, the applicant underwent arthroscopic surgery in October 1999, followed by a partial lateral meniscectomy, shaving the lateral femoral condyle, a partial medial meniscectomy, and incidental shaving on the undersurface of the patellofemoral groove. Following this surgery, Dr. Ihle assessed PPD at 5 percent at the knee.

The applicant, however, continued to have pain and came under the care of John Drawbert, M.D. Dr. Drawbert reported that the applicant's knee had been painful for a long time, and he noted the prior surgery done by Dr. Ihle. Noting also that the applicant told him he was unable to tolerate any more pain, Dr. Drawbert recommended a knee replacement. This was done on January 14, 2002.

At issue is whether a knee injury in 1999 -- or the natural course of the applicant's earlier injury in 1985 -- caused the need for the 2002 knee replacement. Also at issue is how much to pay.

In a letter to the insurer dated January 11, 2002, Dr. Drawbert has opined that the applicant's January 2002 surgery was necessary "to cure and relieve the severe degenerative joint disease on his left knee from his most recent injury that aggravated it beyond a reasonable condition." Exhibit A. In a practitioner's report dated October 2, 2003, Dr. Drawbert lists the event or work exposure causing disability as:

Working on putting together a roof when he turned a corner of one of the beams, experiencing sharp pain in left knee.

The doctor diagnosed osteoarthritis, left knee, and stated that the injury caused progression of a pre-existing DJD. The doctor further indicated the work incident on September 8, 1999, aggravated, accelerated, and precipitated a preexisting degenerative condition beyond normal progression, causing disability. He rated PPD at 50 percent compared to amputation at the knee, which is the code minimum for total prosthesis or knee replacement. Wisconsin Admin. Code
§ DWD 80.32(4)

The employer retained John Xenos M.D., who examined the applicant in February 2002. He took the history of the applicant alleging a left knee injury when he twisted his left knee while stepping off a bar joist. Dr. Xenos opined the applicant injured himself in May 1985, that he had degenerative joint disease thereafter as of November 1985, and that that condition was subject to periodic exacerbation. He thought the applicant symptoms after September 8, 1999, were entirely consistent with the normal progression of that condition and that the applicant did not actually injure himself on that date.

This opinion was shared by a second doctor, Jonathan D. Main, who opined after an examination that the applicant's disability was the normal progression of his 1985 injury. At any rate, he explained that trivial activities, like squatting or twisting, might set off a manifestation of pain from the underlying condition, but do not appreciably change the course of the disease. Regardless of cause, Dr Main rated PPD at 5 percent for the meniscectomy and 50 percent for the knee replacement.

The ALJ found the applicant's disability was caused by an injury arising out of his employment with the employer on September 8, 1999. The commission agrees. The employer's main point on appeal is that Dr. Drawbert did not appreciate the extent of the applicant's treatment in 1985 to 1989 for the first work injury. However, Dr. Drawbert quite clearly did base his opinion on the aggravation beyond normal progression of a pre-existing condition. And the record also indicates, as the ALJ pointed out, that the applicant had not treated for his knee for several years between 1989 and 1999. Beyond that, Dr. Main's opinion for the respondent -- relies on a description of the September 1999 injury as occurring while "tying a rebar" -- is not based on the accurate description of a twisting injury while standing on a wall.

How much to pay also raises a complicated question. The ALJ paid 55 percent. The respondent contends it should pay less, pointing to Wis. Admin. Code
§ DWD 80.50(1) which provides that weeks paid for more distal disabilities from a work injury should be subtracted from the base applied in cases of more proximal disabilities (in this case the 425-week base for knee injuries.) However, all of the procedures at issue here are rated at the knee. None are more distal (which refers to place on the body not time of surgery) to the knee.

The employer also points to Wis. Admin. Code § 80.32(1) which states that in applying the code minimum disability ratings, the affected body part is assumed to have been without prior disability, and that an appropriate reduction should be made for pre-existing disability. Accordingly, the employer asserts the 50 percent for the arthroplasty should be reduced by 5 percent for the 1999 meniscectomy and 7.5 percent for the 1985 meniscectomy and debridement procedure.

However, when a work injury makes more than one surgery necessary, the worker is entitled to at least the minimum for the surgeries he must undergo. Glenn May v. Daimlerchrysler Corporation, WC claim no. 1999-024036 (LIRC, May 7, 2004), aff'd sub nom. Daimlerchrysler Corporation v. LIRC, case no. 04-CV-722 (Wis. Cir. Kenosha County, February 4, 2005). In the May case, the commission followed its prior holding that in a case where one work injury results in the need for two surgical repairs to the same level of the body, the reduction for pre-existing disability would not apply.

The language of the rule itself allowing for reductions only in the case of "preexisting disability" follows the principle that an employer should not have to pay compensation for pre-existing disability that can be separated from the effects of a subsequent work injury. Green Bay Soap Co. v. ILHR Department, 87 Wis. 2d, 561, 566, 275 N.W.2d 190 (1979). This supports the conclusion "preexisting disability" should not include disability that came into being after the work injury as a result of the first surgery. Indeed, the commission has read Wis. Admin. Code § DWD 80.32(1) to refer to conditions which pre-existed the work injury. See Hall v. Consolidated Thermoplastics, WC claim no. 1995022808, 1999 WI Wrk. Comp. LEXIS 363 (LIRC, September 29, 1999), aff'd sub. nom Consolidated Thermoplastics and National Union Fire Insurance Co. v. Richard Hall, Case No. 99CV345 (Wis. Cir. Ct. Chippewa County, Apr. 14, 2000). Thus, the commission concludes it would be inappropriate to deduct the rating from the 1999 meniscectomy.

What of the pre-existing disability going back to the 1980s? The commission has previously deducted such ratings from ratings following surgeries done for subsequent work injury. Sandra Schafer v. Heyde Health System, WC Claim No. 92063715 (LIRC, June 6, 1996) (5 percent from 1972 laminectomy deducted from 20 percent rating for post-injury fusion in 1993); Rausch v. Village of Thiensville, WC claim no. 1989075092, 2000 WI Wrk. Comp. LEXIS 3 (LIRC January 24, 2000) (LIRC awarded PPD at 35 percent following a knee replacement based on applicable "old" code rating of 40 percent less 5 percent disability assigned by a treating doctor for "pre-existing osteoarthritis); Susan King v. Department of Transportation, WC Claim no. 2001-007515 & 2003-012619 (LIRC, April 27, 2005) (six percent pre-existing disability from 2001 injury deducted from a 45 percent partial prosthesis following a 2003 injury, resulting in award of 39 percent.) Such a deduction, of course, is consistent with Green Bay Soap.

In this case, it is clear from the opinions of the doctors who rated disability following the work injury that they assumed that the applicant had no prior disability. Drs. Ihle and Drawbert affirmatively state in their reports that the applicant had no disability prior to his injury. See exhibits B and C. The applicant in fact did have preexisting disability, rated at 7.5 percent, and in the absence of a medical opinion explaining why deduction in that amount is not proper, the commission concludes the 7.5 percent should be deducted from the 55 percent awarded from the surgical procedures the applicant had undergone in this case. Consequently, the applicant is entitled to compensation at 47.5 percent compared to amputation at the knee.

cc:
Attorney Malio G. Parroni
Attorney Jessica Almazar

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