TIMOTHY L GRISWOLD, Applicant

JACKLIN W H INC, Employer

UNITED WISCONSIN, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's findings and interlocutory order dated August 30, 2004. Briefs were submitted by both parties. At issue is whether the applicant sustained injuries arising out of his employment while performing services incidental to or growing out of such employment and if so the nature and extent of disability and related medical expense.

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:

The applicant stated in his application for hearing he was making a claim for temporary total disability as well as permanent partial disability and medical expense. The hearing notice from the department dated February 4, 2004, listed only primary compensation as an issue to be heard at the hearing. Under Wis. Stat. § 102.01(1)(e) primary compensation is defined as compensation or indemnity for disability or death benefit, other than increased, double or triple compensation or death benefit. The parties were not given due notice that medical expense would be an issue at the hearing. The medical expense issue including prospective medical expenses shall be considered at a future hearing.

NOW, THEREFORE, this

Dated and mailed July 8, 2005
griswti . wpr : 175 : 8   ND § 8.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer contends in its petition for commission review that given the testimony, the MRI findings, and the history in the medical records, the evidence was sufficient to establish the applicant's knee condition is of a degenerative nature, and the February 25, 2002, incident at most caused a temporary injury and was resolved well before he sought treatment with Dr. O'Meara in September 2002. However, the applicant gave consistent and credible testimony of the nature and onset of the incident when he slipped and fell at work on February 25, 2002, landing on both knees. The applicant's description of the nature of the fall at work is consistent with the treatment records. The applicant described he fell directly on his right knee which was initially more painful, and he twisted his left knee as a result of the fall, but he ultimately ended up falling on both knees in the work incident. The applicant credibly testified he was able to return to his work as a foreman and moderate his work to allow him to continue working and earn an income while doing less kneeling and squatting than he had done in the past. Although the applicant went several months without the need for treatment prior to seeing Dr. O'Meara in September 2002, Dr. O'Meara's history is consistent with the applicant's testimony of his ongoing pain, swelling and grinding in his knees resulting in his need for treatment in September 2002.

It is clear the applicant had a preexisting degenerative condition in his knees, but the applicant was not making any type of claim for an occupational type disease injury. Dr. O'Meara's report states he believes the applicant's work injury aggravated, accelerated, and precipitated his preexisting degenerative condition beyond its normal progression. Dr. O'Meara attributes the applicant's ongoing pain to the traumatic fall at work on February 25, 2002. The evidence does not support Dr. McDevitt's assessment the applicant had preexisting knee problems for several years prior to February 25, 2002. The employer did not produce any evidence the applicant had any preexisting knee problems, and the applicant denied that he had any problems with his knees prior to February 25, 2002. Given Dr. O'Meara's report and based on the applicant's credible testimony, the commission finds the applicant suffered bilateral knee injuries as a result of the work incident on February 25, 2002.

The employer also states in its petition for commission review that it was not given proper notice by the department on the issue of medical expense and therefore denied due process. The commission has consistently held that the parties are entitled to due notice of the issues to be determined at hearing. The department notices consistently list medical expense as a separate item to be heard at hearing in addition to primary compensation. The hearing notice in this case cited only primary compensation as an issue to be heard at the hearing. Under Wis. Stat. § 102.01(1)(e) primary compensation is defined as compensation or indemnity for disability or death benefit, other than increased, double or triple compensation or death benefit. The employer has a right to expect as a party to the proceedings that it be given due notice of all issues to be heard at the hearing. The hearing notice failed to list medical expenses, surgery and possible future medical costs as an issue in this case. Therefore this matter is remanded to the department for further hearing on the issue of disputed medical expenses for the applicant's work-related bilateral knee injuries.

cc:
Attorney Michael L. Bertling
Attorney Timothy J. Schuman

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