RONALD O ANDERSON, Applicant
EMMPAK FOODS INC, Employer
BIRMINGHAM FIRE INS CO OF PA, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 2002-036300
The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and order issued on February 23, 2004. The employer submitted an answer to the petition and both parties submitted briefs. At issue is whether the applicant sustained an injury arising out of his employment while performing services growing out of and incidental to the employment and if so, the nature and extent of disability and liability for medical expenses.
The commission has carefully reviewed the entire record in this matter and hereby reverses the findings and order below and substitutes the following therefor:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant worked for the employer for several years as a maintenance mechanic prior to the onset of his left knee pain and swelling on April 6, 2002. The evidence indicates the applicant was an obese individual weighing approximately 340 lbs. as of April 6, 2002, with a history of prior knee problems. The applicant suffered a prior work-related left knee injury in 1985 and underwent a meniscectomy at that time. The applicant was released to return to work without restrictions although he did report some knee problems in the interim between 1985 and April 6, 2002.
The applicant was seen for an acute sprain of the left knee with hemarthrosis on May 30, 1997. The applicant gave a history of several days of left knee pain without any specific inciting injury. The applicant was treated conservatively and returned to work. The applicant's X-rays at that time in May 1997 revealed an oblong calcified density which appeared to be a loose body in the intercondylar notch, with degenerative changes in the knee most marked in the medial compartment. The applicant was also treated for left knee pain on October 1, 2001. The applicant treated with Dr. Ritter and complained that when he was at work he stepped down from a platform between two machines, stepped wrong and twisted the knee somewhat, and felt a crunching in the lateral aspect of the left knee. The applicant reported some swelling and he had been walking with a limp since the incident. The applicant was diagnosed with a left knee sprain and an injury to the meniscus or ligaments was suspected. The applicant treated conservatively and was off of work for a few days and then returned to his normal duties.
Subsequently while at work on April 6, 2002, the applicant was descending a flight of stairs and felt a scrunch and pain in his left knee which was bad enough that the applicant had to use the railing. The applicant testified that the pain was similar to the pain he had suffered in 1985 and he promptly reported the injury to his supervisor. The applicant went to the emergency room the following day and was taken off of work after seeing Dr. Ritter and he underwent an MRI.
The applicant's initial treatment notes with Dr. Ritter on April 8, 2002, reflect the applicant reported that two days ago he was at work walking down some stairs when he felt a snap in the left knee and he had some grinding in the knee. Dr. Ritter noted the applicant had some obvious swelling on the left as compared to the right knee, and very easily palpitated joint diffusion. The fluid accumulation in the left knee was extensive enough that the effusion could be described as being tight, and the applicant was diagnosed with a left knee sprain. Dr. Ritter stated that in terms of the work relatedness of his condition it did not appear there was any specific injury which resulted from any definite component of his work in that he did not slip or fall, and did not twist his knee. Dr. Ritter stated that he suspected as the applicant was going down the stairs, as a result of his being overweight and his history of previous injuries to the knee which has left him with some instability, the applicant further aggravated the knee to the point where he has likely sustained a significant internal derangement of the knee. Dr. Ritter stated he suspected the applicant was going to need some type of surgical intervention and he referred the applicant to Dr. Anderson.
The applicant's MRI of the left knee on April 8, 2002 noted that on the medial side the test could not identify a significant medial meniscus. There was irregularity of the medial femoral condyle as well as thinning of the osteocondyle cartridges with nearly bone on bone. Large medial and lateral osteophytes were identified and there was increased signal intensity in the posterior horn of the lateral meniscus indicative of a horizontal tear. There was also irregularity of the superior margin of the anterior horn of the lateral meniscus which raised the possibility of a superficial tear. The MRI found a horizontal tear involving the posterior horn of the lateral meniscus, a complete tear of the anterior cruciate ligament, and suspected Grade I or II tear of the medial collateral ligaments and significant degenerative changes.
The applicant's initial emergency room notes on April 7, 2002 reflect the applicant was seen for left knee pain as a result of a work injury when he was coming down some steps at work and felt a snap in his left knee, grinding sensation and immediate pain but no locking or giving away. The applicant was diagnosed with internal derangement of the left knee and a Baker's cyst of the left knee.
Dr. Anderson's initial treatment notes on April 9, 2002, indicate the applicant was at work when he was descending some stairs when he felt a sudden snap in his knee and he had pain and swelling and decreased range of motion. Dr. Anderson noted the applicant's X-rays of a tricompartmental nature with no acute fracture or dislocation although he had some minor irregularities of the medial osteophytes. Dr. Anderson subsequently reviewed the applicant's MRI and ongoing complaints and advised the applicant to undergo arthroscopic surgery which he did in June 2002. The applicant's hospital admission notes state the applicant was at work on April 6, 2002 when he was descending some stairs when he felt a sudden snap in his knee, pain and swelling with decreased range of motion and since that time he has had a painful snapping and popping with difficulty with weight bearing.
Following his arthroscopic surgery for loose body removal and partial medial meniscectomy, the applicant reported initial good results. Dr. Anderson noted on July 30, 2002 the applicant was seen and his examination did not reveal any effusion and he had good range of motion with good stability and he would continue with rehabilitation and was released for light duty work with a 30-lb. lifting restriction and to avoid kneeling and climbing. Dr. Anderson stated on August 19, 2002, the applicant was making steady progress although he still has intermittent aches, pains and swelling, he was to continue with his therapy and he would be returned to full work duties on September 3, 2002. The applicant testified that he returned to work with the employer on September 3, 2002.
Dr. Anderson indicated in a letter dated October 14, 2002 the applicant underwent a medial meniscectomy with loose body removal and fairly extensive debridement and he would likely suffer 5-6 percent permanent partial disability which would be determined at a later date. Dr. Anderson in a letter dated October 16, 2003 stated that the work injury of April 6, 2002 materially aggravated and accelerated the applicant's preexisting degenerative changes beyond normal progression and he would rate 10 percent permanent partial disability. Dr. Anderson's treatment notes on January 14, 2003 indicate the applicant continues to be unable to carry anything up and down stairs or even climb a ladder, and he has snapping, popping and occasional swelling and clicking in the knee. The examination revealed patellofemoral crepitance and medial joint space collapse in the left knee with severe medial compartment osteoarthritis. Dr. Anderson stated in January 2003 the applicant will likely require eventual total knee arthroplasty.
Dr. Guten performed a review of the applicant's medical records on behalf of the employer. Dr. Guten commented in his report dated December 23, 2003 that the complete tear of the anterior cruciate ligament demonstrated on the applicant's MRI on April 8, 2002 was most likely related to preexisting trauma and his suspected Grade I and II tears of the medial collateral ligaments are probably preexisting related to previous trauma and degenerative arthritis. Dr. Guten opined that because of previous trauma in 1985 the applicant developed degenerative arthritis and loose bodies of his knee, and these loose bodies impinged in his knee while simply walking at work. Dr. Guten stated that the onset of symptoms in April 2002 could have occurred at any time or place and his work activities were not a material aggravating factor in producing his acute signs or symptoms. Dr. Guten stated that the operative report was devoid of signs of acute trauma of the loose body such as bleeding, irregularity or fracture site. Dr. Guten stated that any permanent disability would be related to his initial injury in 1985 and there would be no permanent partial disability as a result of the surgery in 2002.
In the case of 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 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 expended, meaning usual in the sense of exertions of normal non-employment life rather than the usual exertion of the employee in his employment, and breakage occurs, recovery will be allowed. The court concluded that if there is 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 descending stairs at work. Clearly the activity of walking down the stairs would be considered usual or normal in the sense of exertions of normal non-employment life. The applicant testified that he felt scrunching with the immediate onset of pain while descending the stairs at work on April 6, 2002. The issue in this case is whether there was a definite breakage or letting go while the applicant was engaged in his normal activity at work descending the stairs.
The commission finds that the medical evidence established that the applicant suffered a breakage as a result of his work activity descending the stairs on April 6, 2002. Immediately following the incident the applicant went to the emergency room on April 7, 2002, and the emergency room notes indicate the applicant reported a snap in his left knee and a grinding sensation and immediate pain, and he was diagnosed with internal derangement of the left knee. Dr. Ritter, although he stated that the applicant's injury did not appear to be work related since there was no specific injury such as a slip or fall or twisting, also stated that he suspected the applicant further aggravated the knee to the point where he has likely sustained a significant internal derangement of the left knee. Therefore it appears that Dr. Ritter initially assessed the applicant with a breakage or giving away of the knee due to the work incident on April 6, 2002. Dr. Anderson's initial treatment notes on April 9, 2002 also reflect that the applicant felt a sudden snap in his knee with pain and swelling and decreased range of motion when he was first treated on April 9, 2002. Dr. Ritter noted on April 8, 2002 the applicant had obvious swelling on the left with extensive fluid accumulation which was indicative of breakage or internal derangement.
Dr. Anderson noted on April 9, 2002 that since the incident on April 6, 2002 the applicant has had snapping, popping, and pain with weight bearing. Although Dr. Anderson stated that the applicant's X-rays revealed no acute fracture but rather severe degenerative changes throughout, the applicant's MRI on April 8, 2002 noted increased signal intensity traversing the posterior horn of the lateral meniscus indicative of a horizontal tear, and there was also irregularity of the superior margin of the anterior horn of the lateral meniscus which raised a possibility of a superficial tear and a horizontal tear involving the posterior horn of the lateral meniscus, a complete tear of the anterior cruciate ligament, and suspected Grade I or II tear of the medial collateral ligaments and significant degenerative changes.
Dr. Guten contended that all of the applicant's evidence of breakage from his MRI was due to his preexisting knee problems in 1985, subsequent surgery and degeneration, and was not related to the work incident on April 6, 2002. Dr. Anderson opined that the applicant's work incident on April 6, 2002 did not materially aggravate and accelerate his preexisting degenerative changes beyond normal progression. Based on Dr. Ritter's findings of internal derangement and based on the applicant's MRI and based on Dr. Anderson's initial treatment notes and given the applicant's description of the nature and onset of his left knee pain on April 6, 2002 when he felt a scrunching in his knee and immediate swelling and effusion, and based on Dr. Anderson's assessment, the commission finds that the applicant did suffer breakage in his left knee as a result of his work activity on April 6, 2002 descending the stairs. Therefore the evidence establishes the applicant suffered a compensable left knee injury at work on April 6, 2002.
The commission credits Dr. Anderson's assessment that the applicant suffered 10 percent permanent partial disability at the left knee as a result of his work-related injury. Therefore the applicant is entitled to 42.5 weeks of permanent partial disability for a total of $ 9,010. The applicant is also entitled to temporary total disability benefits for the period of April 7, 2002 to April 12, 2002, and April 30, 2002 to September 2, 2002, when he was released to return to full-time work without restrictions for a total of $ 9,512.53 for a total of temporary disability benefits and permanent partial disability benefits of $ 18,522.53 less attorney's fees of $ 3,704.51 and costs of $ 598.38, leaving a total due to the applicant of $ 14,219.65. In addition, the applicant is to be paid medical expenses in accordance with the expenses provided on the applicant's itemized treatment statements in Exhibits C and D.
NOW, THEREFORE, this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are reversed and the commission's findings and order substituted therefor. Within 30 days from the date of the commission's order the employer and its insurer shall pay to the applicant the sum of $ 14,219.65; to the applicant's attorney Roland Cafaro the sum of $ 3,704.51 as attorney's fees and $ 598.38 as costs; and to Milwaukee Radiology the sum of $ 44.00; to Anesthesiology Associates of Wisconsin the sum of $ 759.00; to Commonwealth Medical Group the sum of $ 5.31; to Knueppel Health the sum of $ 116.69; to West Bend Clinic the sum of $ 19.31; to St. Michael's Hospital the sum of $ 5,499.00; to West Allis Orthopedic the sum of $ 2,951.00; to Elmbrook Memorial Hospital the sum of $ 5,553.54; to Dr. Michael Ritter the sum of $ 92.00; to Open Advanced MRI the sum of $ 1,503.60; to St. Luke's Hospital the sum of $ 7,918.31; to Brookfield Radiology the sum of $ 487.00; and to Cardiology Associates of Waukesha the sum of $ 599.00.
Jurisdiction is reserved.
Dated and mailed August 25, 2004
andero . wrr : 175 : 9 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 was not an issue in the above-referenced case. The commission agreed with the administrative law judge that the applicant experienced the event described on April 6, 2002..
cc:
Attorney Ronald C. Cafaro
Attorney Joseph Danas
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