STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DANIEL W LENEGAR, Applicant

PEPSI COLA GENERAL BOTTLERS OF WISC, Employer

OLD REPUBLIC INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-007181


In May 2005, the applicant filed an application for hearing alleging disability from a January 2005 injury when the applicant slipped in snow and ice while making a delivery. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 4, 2006.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage as of the alleged date of injury of $1,073.66. In dispute before the ALJ were whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment, the nature an extent disability from any such injury, and the respondent's liability for medical expenses.

On July 31, 2006, the ALJ issued his decision in this matter. The respondent filed a timely petition for review. 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant is a deliveryman for the employer, a soft drink bottler. He periodically hurt his left knee at work going back to the 1990s. He underwent an arthroscopy in August 1993 after suffering three separate knee injuries in April and May 1993. After another knee injury in March 1996, a meniscus tear was identified on a MRI scan in January 1997. The applicant slipped on snowy pavement in March 1997, and underwent a second arthroscopy in April 1997. After the second arthroscopic procedure, an MRI in December 1997 showed a recurrent meniscus tear. At that point the treating surgeon, Dr. Shapiro, discussed a possible future knee replacement. See exhibit 4, December 17, 1997 note of Shapiro.

The applicant acknowledges having previously received payment of permanent partial disability at 10 percent compared to loss at the knee. The payment evidently was made after the second arthroscopic procedure done in April 1997. Transcript, page 48-50.

The applicant suffered a knee sprain in 2003. This was followed by a bruising injury in 2004. Then, on January 5, 2005, the applicant slipped and fell in a parking lot while doing a delivery. Dr. Shapiro -- who did the surgeries in the 1990s -- performed a partial knee replacement on May 31, 2005. It is this January 2005 injury and May 2005 procedure that are at issue now.

After physical therapy in June and July 2005, Dr. Shapiro stated in August 2005 that he anticipated a return to work in light duty in a month, followed by full duty four to six months later. On September 7, 2005, in fact, the doctor released the applicant to a couple of weeks of medium work, cautioning the applicant his knee would be swollen and sore by the end of the day for which he was to use ice. When the applicant returned to Dr. Shapiro in October 2005, he told the doctor he had pain and would like to continue his restrictions. Dr. Shapiro decided on trying an injection, stating that "he is to continue on his restrictions indefinitely."

On December 12, 2005, the doctor noted swelling and discomfort at the end of the work shift, as well as stiffness in his knee when sitting for prolonged periods. The doctor performed an injection to the medial plica in the applicant's knee, and added "We are going to make his restrictions permanent."

It appears the applicant next saw Dr. Shapiro for an examination on March 13, 2006, when he estimated permanent partial disability. At the hearing, the applicant testified that Dr. Shapiro had told him it would be about a year post surgery before he did a final assessment. Transcript, page 52. The record contains a practitioner's report dated March 13, 2006, but the commission could not locate a treatment note documenting the treatment, if any, provided on that date.

Regarding cause, nature and extent of disability, the applicant relies on expert medical opinion from treating surgeon Shapiro and Dr. Lerner. Regarding causation, Dr. Shapiro stated in a narrative report at exhibit I that the January 5, 2005 work injury aggravated a pre-existing knee arthritis beyond its normal progression. August 11, 2005 letter from Shapiro to Pitts. Dr. Shapiro also declined to apportion liability among the injuries, but he did say the January 2005 injury "played a significant role" and that it "aggravated the knee pain and accelerated the need for [the applicant's] TKA  (1)." October 19, 2005 letter from Shapiro to Barwinksi.

Dr. Shapiro also completed two practitioner's reports on form WKC-16B. In his first practitioner's report dated August 9, 2005 (exhibit B), Dr. Shapiro opined that permanent partial disability had resulted, which he estimated at 40 percent compared to amputation. Regarding work restrictions, the doctor noted that the applicant would be unable to work until September 2005, when he could go on light duty. He anticipated permanent restrictions would be set in November 2005, but said "permanent restrictions unknown at this time."

In his second report dated March 13, 2006 (exhibit A), Dr. Shapiro described the work injury as:

"Patient injured his R[ight] knee at work when he slipped and fell while doing a delivery. The right knee swelled immediately."

Dr. Shapiro opined that that work event directly caused the applicant's disability which he estimated at 45 percent. With regard to temporary limitations, the doctor recorded:

9/19/05 - Medium work

With regard to permanent limitations, the doctor recorded:

10/19/05 - Medium work, no tractor trailer driving, no crawl, climb, kneel.

The applicant also retained Jerome Lerner, M.D., to do an evaluation. In his February 13, 2006 report at exhibit L, Dr. Lerner detailed the applicant's job duties which included stepping up and down from the truck 60 times per day, with squatting and lifting, as well as repetitive twisting and turning. He noted, too, "specific incidents of bilateral knee injuries in addition to the daily repetitive stresses to both knees related to his work activities." Regarding causation, the doctor opined the work exposure as a delivery truck driver was a material contributory causative factor in the progression of his underlying condition, and the January 5, 2005 work incident aggravated and accelerated his preexisting degenerative knee condition beyond normal progression. He concluded that both the work exposure and specific incident led to the unicompartmental arthroplasty of his right knee. Dr. Lerner estimated permanent partial disability following the applicant's partial prosthesis of the right knee at 45 percent, but did not set work restrictions or discuss the end of healing.

The respondent retained Stephen J. Weiss, M.D., to examine the applicant. In his initial report (exhibit 1) dated March 28, 2005 (before the May 2005 partial knee replacement later performed by Dr. Shapiro), Dr. Weiss diagnosed:

"1. Medial and lateral meniscus tears with anterior cruciate ligament tear unrelated to the fall of January 5, 2005.

2. Degenerative joint disease and patellofemoral arthritis of the right knee, aggravated by the fall of January 5, 2005."

Dr. Weiss added that he believed the applicant permanently aggravated his underlying degenerative joint disease as a result of the January 2005 injury. He stated his examination documented a worsening objectively, consistent with the applicant's history. He noted that the standard treatment was conservative in nature -- cortisone injections and therapy. The doctor added, however, that he did not think the meniscal tears were progressed beyond normal by the injury, as a direct blow to the knee, as would be experienced in a fall, would neither produce nor aggravate the tears.

Although he reiterated that the fall definitely worsened the applicant's knee, the doctor felt the arthroscopic procedure (in consideration at the time of his report) was being undertaken to address of the meniscus and ACL tears. Because he did not think the meniscus and ACL tears (in contrast to the degenerative joint disease) were affected by the work injury, he stated the arthroscopic surgery, while reasonable, was not necessitated by the work injury. As for the work injury itself, he felt the applicant had reached an end of healing unless he underwent a cortisone injection.

Dr. Weiss issued a follow-up report on November 16, 2005. After examining the applicant's past medical history, he retreated somewhat from his initial opinion that the applicant's degenerative joint disease and patellofemoral arthritis of the right knee were aggravated by the January 5, 2005 fall. Instead, he stated "the work incident in question involved a blow to the knee, which theoretically could have aggravated a patella femoral arthritis." Turing to the possible role of the fall in the knee replacement surgery, Dr. Weiss added:

"...this was not the cause of [the applicant's] unicompartment knee replacement as the patella was not replaced or resurfaced. This implies no aggravation occurred as a result of the work incident in question and the only injury that occurred at that time was a contusion. In my opinion, the unicompartment knee replacement occurred as a result of the work incident in question and the only injury that occurred at that time was a contusion. In my opinion, the unicompartment knee replacement was performed for the medial femoral/tibial joint, which was a pre-existing condition not aggravated by the work injury in question."

Dr. Weiss concluded by noting that a knee replacement had been discussed in the medical records already in the late 1990s and that he did not believe the knee replacement surgery

"Was necessitated by the January 2005 work injury as it involved the medial joint, which could not possibly have been worsened by the contusion he actually sustained on that date."

Like the ALJ, the commission is satisfied that the January 2005 injury caused the need for the partial knee replacement surgery performed by Dr. Shapiro in May 2005. The commission credits the opinions of Drs. Shapiro and Lerner on this point, and notes that even Dr. Weiss originally opined the fall caused a permanent aggravation of the applicant's underlying degenerative joint disease. The commission concludes, then, that the need for the May 2005 knee replacement surgery and the attendant disability arose out of the January 5, 2005 slip and fall while the applicant was performing services growing out of and incidental to his employment.

Indeed, whether the work injury caused the need for the knee replacement surgery is not specifically disputed on appeal. Instead, the respondent challenges the extent of disability. The respondent contends that the applicant reached an end of healing -- ending its liability for temporary disability compensation -- by December 12, 2005. The respondent also contends that the applicant's permanent partial disability rating following the May 2005 knee replacement surgery must take into account his preexisting disability from the earlier work injuries and surgeries in the 1990s.

The next issue is the extent of temporary disability. Regarding the healing period -- whose end generally sets the end of temporary disability -- the supreme court has said:

"The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit."

Knobbe v. Industrial Commission, 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).

Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) emphasized that the end of a healing period is not determined simply by finding the point at which a condition becomes stationary, or when it is apparent the condition will get no better or worse. Rather, the Knobbe definition of a healing period is qualified by the additional conditions that the injured worker still be submitting to treatment and convalescence, and that the disability be of a temporary nature. The court added:

"An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability..."

Larsen Co., 9 Wis. 2d at 386. The Larsen Co. court went on to say that if the record before the commission "indicates that a definite determination cannot then be made that the employee will not sustain a greater percentage of disability in the future" the commission should reserve jurisdiction, but not continue to pay temporary disability until the maximum amount of permanent partial disability that may occur in the future could be determined. Id., at 9 Wis. 392-93.

Regarding the end of healing when a worker is able to return to work subject to restrictions, the applicant cites the commission decision in Gonzalez v. J.C. Penney Co., Inc., WC claim no. 2001-025210 (LIRC, May 30, 2002). In that case, the commission pointed out that an ability to return to work with restrictions did not necessarily equate to an end of healing or temporary disability liability. In Gonzalez, however, it does not appear the treating doctor who set the restrictions at issue specifically stated they were permanent restrictions.

Once a worker is released with permanent restrictions, there usually "has occurred all of the improvement that is likely to occur as a result of treatment and convalescence," at least with respect to his wage-earning ability which is the focus of temporary disability. (2)   In many cases, then, when a worker is released to permanent restrictions, it becomes apparent the injured body part "will get no better or worse because of the injury... [and] the employee is restored so far as the permanent character of his injuries will permit." The commission concludes that that date was December 12, 2005, in this case. (3)

The applicant points out that Dr. Shapiro was unwilling to rate permanent partial disability as of December 12, 2005, despite noting that the applicant's restrictions were permanent on that date. This, the applicant claims, should extend the healing period and temporary total disability period to the date the final permanent disability rating was made, March 13, 2006. However, this argument overlooks that (1) Dr. Shapiro had estimated permanent partial disability in August 2005 even before setting permanent restrictions (which the doctor then anticipated doing in November 2005), and (2) more importantly, the Larsen court expressly acknowledged that a "final" permanent partial disability rating might not be possible at the end of healing, but rather than continuing to pay temporary total disability compensation, the commission should reserve jurisdiction. Larsen Co., 9 Wis. 2d at 386. In sum, the commission concludes that the end of healing, and end of temporary disability, in this case is December 12, 2005, when Dr. Shapiro said the applicant's work restrictions were permanent.

The next issue is the amount of the permanent partial disability award, and whether to deduct the 10 percent paid following the knee surgeries done in the 1990s from the 45 percent code minimum rating for the partial knee replacement (4)  done in May 2005. Wisconsin Admin. Code § 80.32(1) 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. The language of the rule allowing for reductions 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); Semons Department Store v. ILHR Department, 50 Wis.2d 518, 525 (1971).

The commission concludes a deduction for pre-existing disability is appropriate here. (5) Accordingly, the applicant is entitled to permanent partial disability at 35 percent in this case. This is the code minimum rating of 45 percent for the May 2005 partial knee replacement done to treat the applicant's January 2005 work injury, as adopted in the disability estimates of Drs. Lerner and Shapiro, less the pre-existing 10 percent permanent partial disability assessed by the department following the August 1993 and April 1997 arthroscopic procedures.

Based on the foregoing, the applicant is entitled to compensation for temporary disability from May 31, 2005 (when he was hospitalized for the partial knee replacement surgery) to December 12, 2005. While the respondent did not stipulate to a March 11, 2006, healing plateau date based on exhibit N, the parties did agree to the accuracy of the wage figures and resulting temporary disability rates set out in that document. Exhibit N indicates that the applicant is entitled to compensation based on temporary total disability of $711 per week for the 16-week period from the week ending on June 4, 2005 through the week ending on September 17, 2005, totaling $11,376. Thereafter to the December 12, 2005 end of healing date, the applicant did not incur sufficient wage loss to require the payment of temporary disability.

The $11,376 is subject to a deduction for payments made under a non-industrial disability insurance policy by an unnamed insurer in the total amount of $2,009.83, as set out in exhibit 8 which was received without objection. Transcript, page 15. A deduction shall be made from the temporary total disability award, and that amount paid to whatever entity paid the non-industrial disability insurance. The total awarded in temporary disability compensation, then, is $9,366.17.

The applicant is also entitled to permanent partial disability at 35 percent compared to loss of the leg at the knee. Under Wis. Stat. 102.52(11), that amounts to 148.75 weeks of permanent partial disability at $242 per week (the statutory maximum for injuries in 2005), for a total of $35,997.50. As of April 12, 2007, 81 weeks and 5 days (81.8333 weeks) amounting to $19,803.67 has accrued (6);  66.9167 weeks amounting to $16,193.83 remains unaccrued.

The applicant approved an attorney fee set under Wis. Stat. § 102.26, at twenty percent of the additional amounts awarded hereunder. The future value of the fee equals $9,072.73 {0.20 times ($9,336.17 plus $35,997.50)}. However, the fee is subject to an interest credit of $143.58 to reflect the advance payment of fee attributed to unaccrued permanent disability. This present value fee is thus $8,929.15, which shall be paid the applicant's attorney within 30 days.

The amount due the applicant within 30 days for accrued disability compensation to April 12, 2007, is $23,335.87, which equals the accrued award ($9,336.17 in TTD plus $19,803.67 in PPD), less the accrued fee thereon ($5,833.97). The amount remaining to be paid to the applicant as it accrues after April 12, 2007, is $12,955.06, which equals the unaccrued portion of the award ($16,193.83), less the future value of fee ($3,238.77) thereon. That amount shall be paid to the applicant in monthly installments of $1,048.67 per month, beginning on May 12, 2007.

In addition, the applicant incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury as documented in exhibit C. That document indicates that the amount of $51.00 remains outstanding to Comprehensive Orthopedics in medical treatment expense for which it is entitled to payment; that Blue Cross Blue Shield of Illinois has paid $23,561.91 toward medical treatment expenses for which it is entitled to reimbursement under Wis. Stat § 102.30(7); and that the applicant has paid a total of $3,158.64 in medical treatment expense, prescription expense, and medical mileage for which he is entitled to reimbursement.

Given the applicant's surgery and Dr. Shapiro's statement in his practitioner's report that further treatment is expected, this order shall be left interlocutory to permit awards for compensation of disability and medical expense that may arise after the date of hearing.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Twenty-three thousand three hundred thirty-five dollars and eighty-seven cents ($23,335.87) in disability compensation.

2. To the applicant's attorney, James A. Pitts, Eight thousand nine hundred twenty-nine dollars and fifteen cents ($8,929.15) in fees.

3. To Comprehensive Orthopedics, Fifty one dollars ($51.00) in medical treatment expense.

3. To Blue Cross Blue Shield of Illinois, Twenty-three thousand five hundred sixty-one dollars and ninety-one cents ($23,561.91) in reimbursement of medical treatment expenses paid.

4. To the unnamed insurer that paid non-industrial disability insurance to the applicant during his healing period, Two thousand nine dollars and eighty-three cents ($2,009.83).

5. To the applicant, Three thousand one hundred fifty-eight dollars and sixty-four cents ($3,158.64) in reimbursement of medical treatment expense, prescription expense, and medical mileage.

Beginning on May 12, 2007, and continuing on the twelfth day of each month thereafter, the employer and its insurer shall pay the applicant One thousand forty-eight dollars and sixty-seven cents ($1,048.67) per month, until the additional amount of Twelve thousand nine hundred fifty-five dollars and six cents ($12,955.06) has been paid.

Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.

Dated and mailed April 9, 2007
lenegda . wrr : 101 : 1 ND 5.6  5.10

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission's modifications to the ALJ's decision do not arise from a different impression of the credibility and demeanor of the applicant, the only witness to testify before the ALJ. Accordingly, no credibility conference was held.

cc:
Attorney James A. Pitts
Attorney Robert P. Ochowicz



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Footnotes:

(1)( Back ) The commission infers that "TKA" means total knee arthroplasty or total knee replacement. The applicant here actually had a partial knee arthroplasty or uni-compartmental arthroplasty of the right knee.

(2)( Back ) See: Wagner v. Industrial Commission, 273 Wis. 553, 567d (1956) (noting that temporary disability is measured in terms of wage loss while permanent disability is measured on the basis of bodily impairment) and Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947) (noting that it is possible to determine actual wage loss during the healing period when temporary disability is paid but not for permanent disability which is to be made for all time).

(3)( Back ) The ALJ found that, assuming the respondent's liability for the injury, the parties stipulated that the applicant sustained a wage loss entitling him to temporary disability benefits through the week ending on March 11, 2006 in the amount set out in exhibit N. On appeal, the respondent contends it did not stipulate to a March 11, 2006 healing plateau date. The respondent points to its stated reservations to exhibit N at the beginning of the hearing (transcript, page 12), and its end-of-hearing argument to the ALJ in which it asserted a December 12, 2005 end of healing date (transcript, pages 65-66.) Indeed, the thoughtful colloquy between the ALJ and counsel at the end of the hearing demonstrates that the ALJ understood that the extent of temporary disability and the end of healing date were at issue (transcript, pages 60 et seq.) His finding that the respondent stipulated to a later date based on exhibit N seems to have been inadvertent.

(4)( Back ) Wis. Admin. Code DWD 80.32(4).

(5)( Back ) The commission has previously deducted prior awards or disability ratings for pre-existing disability from ratings following knee replacement surgeries done for subsequent work injuries. See: Rausch v. Village of Thiensville, WC claim no. 1989075092, (LIRC January 24, 2000) (LIRC awarded PPD at 35 percent following a knee replacement based on the 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) (LIRC awarded PPD at 39 percent following a 2003 injury necessitating a partial knee replacement, based on the current code rating of 45 percent for a partial prosthesis less 6 percent pre-existing disability from 2001 injury); Levi Thunder v. Red Cedar Steel Erectors, Claim no. 1999-047240 (LIRC, June 23, 2005) (LIRC awarded PPD 47.5 percent following meniscectomy and knee replacement surgeries to treat a 1999 injury, based on adding the 5 percent meniscectomy and 50 percent total knee prosthesis code minimums when both procedures were done to treat the 1999 work injury, then deducting a pre-existing 7.5 percent PPD rating following a 1985 injury); and Clinton Steele v. Snap-On Tools, WC Claim nos. 2002-0150238 and 2002027087 (LIRC, April 8, 2005) (LIRC awarded PPD at 45 percent for a 2000 injury resulting in a knee replacement, based on the 50 percent code minimum for a total knee prosthesis, less 5 percent for pre-existing disability.) The commission has been less inclined to make a deduction for pre-existing disability in cases where, instead of a joint replacement, the subsequent surgery is a meniscectomy or ACL repair. See: Hellendrung v. WalMart, WC claim no. 1999039147 (LIRC, February 23, 2001). This has been particularly true when there is only one work injury treated by two or more surgeries. See: Wege v. Village of Bear Creek, WC claim no. 1999-064107 (LIRC, January 31, 2003); Bastman v. School District Kenosha, WC claim no. 95008797, (LIRC, March 31, 1998); Gutoski v. Kohler Corporation, WC claim no. 1998-019641, (November 24, 2003); Glenn May v. DaimlerChrysler Corporation, WC claim no. 1999-024036 (LIRC, May 7, 2004), aff'd sub nom. DaimlerChrysler v. LIRC, 2007 WI 15, ___ Wis. 2d ___.  In that situation -- one injury treated by successive surgeries -- there may be no "pre-existing disability" that predates the work injury. DaimlerChrysler v. LIRC, 2007 WI 15, 25.

(6)( Back ) The commission arrived at this figure by starting the payment of permanent disability compensation on September 18, 2005, the day following the last day for which temporary disability was actually paid. This reflects the commission's understanding of the department's practice to accrue PPD during "gap weeks" in the healing period during which no TTD or TPD is paid.   

 


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