JEFF KOZICZKOWSKI, Applicant

T A SOLBERG CO INC, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated September 26, 2005. The employer submitted an answer and both parties submitted briefs. At issue is whether the applicant sustained a traumatic right knee injury while performing services growing out of and incidental to his employment, and whether the accident causing the injury arose out of his employment, and if so the nature and extent of temporary disability and permanent partial disability.

The commission has carefully reviewed the entire record in this matter and after review hereby reverses the Findings and Order below and substitute the following therefore:

The applicant worked for the employer as a third shift supervisor in the employer grocery operation at the time of the work incident on November 25, 2003. The applicant was at work performing his normal duties on November 25, 2003, when he took a break in the employee's break room. The applicant had a tray in his hand and was turning onto the break table and felt his right knee pop. The applicant testified that he did not have the immediate onset of pain although he expected it, and could slightly hear a pop in his knee. The applicant admitted after a few hours his right knee began to stiffen up and became hard to bend, and he finished his work shift. The applicant went home where his knee stiffened up even more, and when he woke up the following morning his knee was in pain and it was swollen. The applicant completed an accident report and treated with Dr. Guse.

The applicant had a prior right knee injury in October 2001 while throwing a football at his home. The applicant treated with Dr. Guse in 2001 but he did not have surgery. The applicant returned to his regular job on February 22, 2002, and continued to have some knee problems off and on. The applicant testified that prior to November 2003 his right knee would stiffen up on occasion, and it would be stiff and sore every couple of months, but he was able to perform his normal work.

The applicant underwent an MRI which demonstrated a torn medial meniscus, as well as a torn ACL in his right knee. The applicant underwent surgery on January 12, 2004, and after a period of recovery and therapy returned to work on March 3, 2004. The applicant admitted in his testimony that between November 2001 and November 2003 he would call in because of right knee problems because the knee was stiff.

Dr. Guse completed a WC-16-B dated September 16, 2004, in which he indicated the applicant suffered a traumatic knee injury on November 26, 2003, resulting in a meniscal tear of the right knee, and he also checked the aggravation and acceleration for an ACL tear on the same date. Dr. Guse assessed the applicant with ten percent permanent partial disability for his ACL tear, and five percent for the meniscal tear. Dr. Guse stated in a letter dated May 6, 2004, the applicant initially tore the anterior cruciate ligament several years ago while he was not at work, and he was able to return to work, but did have several reinjuries from activities at work which caused the knee to swell up and bother him. Dr. Guse stated in November 2003 the applicant was working and performing a twisting maneuver and there was a loud pop in his knee, and he could no longer straighten the knee out. Dr. Guse opined the applicant's work exacerbated the problems of the torn ACL, and also led to the torn meniscus because of all the work the applicant performed on his feet with frequent bending, squatting and twisting. Dr. Guse checked the box for a traumatic injury on November 26, 2003 causing a meniscal tear.

The applicant's MRI on December 4, 2003, revealed an anterior cruciate ligament tear of the right knee, as well as a medial meniscal tear. Dr. Guse stated in a letter dated February 10, 2004, the applicant sustained an injury on November 26, 2003 while at work, and following this he was unable to straighten his knee and had quite a bit of swelling. Dr. Guse noted that previously the applicant had been seen and he had some tenderness over the medial joint line, but had never been officially diagnosed with a medial meniscal tear, although he probably had some degenerative changes in the meniscus.

The applicant was examined by Dr. Main, an orthopedic surgeon, on behalf of the employer who prepared a report dated April 2, 2004. Dr. Main stated the applicant was noted to have medial joint line tenderness in October 2001. Dr. Main stated the work incident on November 26, 2003 in itself was trivial, and would be unable to affect the tear of both the anterior cruciate ligament and meniscus. Dr. Main stated the incident could, in an unstable anterior cruciate ligament deficient knee, allow completion of a tear of the medial meniscus, which had already likely developed. Dr. Main stated the fact that the applicant had a second onset of effusion in November 2003 does not demonstrate a significant new reinjury with the knee. Dr. Main concluded it was his opinion the applicant sustained an anterior cruciate ligament tear and a medial meniscal tear in October 2001 while playing football, and merely suffered a manifestation of his underlying progressive deteriorating condition by his relatively trivial work incident of November 26, 2003.

In this case, the commission finds that the applicant was performing duties growing out of and incidental to his employment, and arising out of his employment at the time of the work incident on November 26, 2003. The commission disagrees with the administrative law judge's conclusion that it was not established that the applicant's fall was work-related, and the applicant's fall must be considered idiopathic. In the current case, the applicant was standing and turning when he felt a pop in his knee, and he knew the mechanism of injury. The applicant testified he was injured while twisting and turning in order to sit at the break table in the employee's break room. This is not a case where the applicant suffered an injury after falling, and could not explain what caused him to fall leading to his injury. The applicant was not required to establish there was a special condition and circumstance which made the level floor in the employee's break room a zone of special danger. The appropriate analysis is whether the applicant suffered the onset of pain performing his normal activity at work, and if so whether breakage resulted.

In Brown v. Industrial Comm., 9 Wis. 2d 555 (1960), the Wisconsin Supreme Court awarded compensation in a case involving a bricklayer who felt a sudden, sharp pain in his back while simply leaning over a wall performing his normal work as a bricklayer. The evidence in the Brown case indicated the applicant had suffered breakage in the form of a disc herniation, as a result of his normal exertive activity at work. The court noted in the Brown decision that an injury is accidental whether caused by usual or unusual exertion when the result is a herniation or breakage. The Wisconsin Supreme Court stated that there was no burden upon the employee to show that the exertion being put forth at the time of the breakage was in any way unusual to his employment.

Subsequently, in the case of Lewellyn v. ILHR Dept., 38 Wis. 2d 43 (1968), the Wisconsin Supreme Court further clarified that where only usual effort is extended, meaning usual in the sense of exertions of normal non-employment life, rather than the usual exertion of the employee in his employment, and breaking occurs, recovery will be allowed. The court concluded in Lewellyn that if there is a definite breakage while an employee is engaged in usual or normal activity in the sense of exertions of normal non-employment life, and there is a relationship between the breakage and the effort exerted or motion involved, the injury is compensable regardless of whether the employee's condition was preexisting, and regardless of whether or not there is evidence of prior trouble.

In our current case, the applicant was engaged in normal exertive activity of turning to sit at the table in the break room. The commission has long held that activities in the break room come under the umbrella of protected activities under the act. In the commission decision Witkowski v. ARP Mfg., Commission Decision dated May 6, 1998, where an employee was injured while getting up from the picnic table in the break area, the commission noted that the employee was not involved in a significant deviation from his employment, and under the Personal Comfort Doctrine must be deemed to have been performing service growing out of and incidental to his employment.

In the case of Matts v. Dane County, Commission Decision dated July 25, 2001, the applicant was injured while sitting in the employer's break area at a picnic table when she swung her right leg out from between the picnic table and the attached bench, and attempted to stand up from her seated position and felt pain in her left knee. The commission found the applicant's injury compensable in the Matts case.

In Anderson v. Emmpak Foods, Commission Decision dated August 25, 2004, the applicant contended he suffered a knee injury while simply descending some stairs in the employer's premises when he felt a scrunch in his right knee. The commission noted in the Anderson decision the activity walking down the stairs would be considered usual or normal in the sense of exertions of normal non-employment life, and the applicant felt the scrunching with the immediate onset of pain while descending the stairs at work. The commission found there was a definite breakage or letting go while the applicant was engaged in his normal activity at work descending the stairs.

Similarly, in our current case the applicant was engaged in normal exertive activity, and there was a definite breakage or letting go while the applicant was engaged in his normal activity. The applicant testified that he felt a popping sensation in his right knee at the time that he turned and twisted at the break table. Further, Dr. Guse noted the applicant did not have a definite diagnosis of a torn meniscus at any time prior to November 2003. The applicant's MRI subsequent to the work incident in November 2003 revealed not only an ACL tear, but a meniscal tear as well. Dr. Guse acknowledged the applicant's ACL tear may have been preexisting, but he attributed the applicant's meniscal tear to the work incident in November 2003. The commission credits Dr. Guse's assessment.

The commission does not credit Dr. Main's assessment that the applicant's medial meniscal tear and ACL tear were entirely preexisting the incident in November 2003. The applicant was able to perform his normal work prior to November 2003 including bending, twisting and kneeling. The applicant developed significant swelling and the onset of instability in his knee of much greater proportions after November 2003, than he had experienced before that time. The commission finds the evidence is sufficient to establish the applicant suffered definite breakage, as a result of the twisting activity in the break room on November 26, 2003.

Based on Dr. Guse's assessment and given the evidence that the applicant suffered a torn medial meniscus in his right knee, as a result of the work incident on November 26, 2003, the evidence was sufficient to establish the applicant suffered a work-related right knee injury resulting in the need for treatment and subsequent surgery, while performing services growing out of and incidental to his employment, and arising out of his employment on November 26, 2003. The evidence indicates the applicant is entitled to temporary total disability benefits from July 12, 2004 to September 19, 2004, in the amount of $3,120.44, and five percent permanent partial disability at the right knee for a total of $4,717.50 totaling $7,837.94 less attorney's fees of $1,567.59, leaving a total due the applicant of $6,270.36. The employer and its insurer are also responsible for the applicant's medical expenses reasonable and necessary to cure and relieve the effects of the work-related right knee injury as listed in the applicant's exhibit A.

NOW, THEREFORE, this

The findings and order of the administrative law judge are reversed and the commission's findings and order substitute therefore. Within 30 days from the date of the commission's order the employer and its insurer, Employer's Insurance of Wausau, shall pay to the applicant the sum of Six thousand two hundred seventy dollars and thirty-six cents ($6,270.36); to the applicant's attorney James Bartells the sum of One thousand five hundred sixty-seven dollars and fifty-nine cents ($1,567.59); to Klasinski Clinic the sum of Seven thousand four hundred ninety-eight dollars and thirty-one cents ($7,498.31); to Stevens Point Anesthesia the sum of Six hundred four dollars and eighty cents ($604.80); and the employer and its insurer shall reimburse Keylink (Advana) in the sum of Twelve thousand two hundred two dollars and eighty-one cents ($12,202.81) and Comp Care in the amount of One thousand one hundred eighty-nine dollars and seventy-five cents ($1,189.75). Jurisdiction is reserved.

Dated and mailed February 23, 2006
kozicje . wrr : 175 : 8   ND § 3.34

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge concerning the demeanor and credibility of witnesses. Credibility of witnesses was not an issue in the commission's decision. Rather, the commission disagreed with the administrative law judge's conclusion that in order to establish that his injury arose out of his employment, the applicant needed to establish that there was a special condition or a circumstance which made the level floor in the employer's premises a zone of special danger. The commission found the applicant was required to establish that there was definite breakage while engaged in usual and normal activity at work, and that there was a relationship between the breakage and the effort exerted or motion involved at work.

cc:
Attorney James L. Bartells
Attorney Mark Parman

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