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


JOHN R. PRITCHARD, Applicant

MOBILE MEDIA INC, Employer

FIREMANS FUND INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93000098


The administrative law judge issued his findings of fact and interlocutory order in this case on September 18, 1996, following a hearing on August 13, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $400, and a December 2, 1992 compensable injury. The respondent conceded and paid temporary disability for various periods, and permanent partial disability as outlined below.

The issue at the hearing and before the commission is the nature and extent of disability beyond that conceded.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission sets aside the administrative law judge's Findings of Fact and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1953. He was the employer's head maintenance mechanic. He suffered a conceded work injury on December 2, 1992 when he slid off a truck while installing a billboard on it. He fell fourteen feet seven inches, landing on his left leg.

The applicant fractured the tibia and fibula in his left leg, extending into the ankle joint. The day after the injury, he underwent surgery to repair the fracture. As part of the surgery, hardware fixation devices were inserted into the applicant's leg, up to within four inches of his knee.

In succeeding years, the applicant had a surgery to have the fixation hardware removed, as well as an ankle arthroscopy to investigate continued pain in the ankle. He was also fitted what is called in the file a "3D walking boots" for the left ankle.

In May 1994, he was examined by Michael Collopy, M.D. Dr. Collopy noted continuing pain, swelling, loss of sensation, and clicking in the ankle. X-rays showed holes in the tibia and fibula from the fixation devices. He noted no shortening or callus formation on x-ray, and that the tibia fracture had healed.

In May 1994, Dr. Collopy opined that the applicant had a surprisingly good result, indeed, he referred to it as a remarkable recovery, despite the loss of ankle motion. He continued:

"He does have a permanent disability rated at the foot/ankle complex but assigned to the knee because of it being the tibia. He would have a 5 percent permanent partial disability of the knee as opposed to amputation....."

Exhibit D, page 2. Thereafter, Dr. Collopy fixed a healing plateau date of August 6, 1994.

The applicant then re-aggravated his ankle stepping on a wood chip in February 1995. He was seen by Dr. Hoover, who had treated him for his ankle problem soon after the injury. Due to the greatly increased pain, Dr. Hoover mentioned doing an ankle fusion or arthrodesis.

When confronted with that recommendation, Dr. Collopy opined in March 1995 that he had no problem with an arthrodesis, provided the surgeon who performed it investigated the possibility of "arthrodesing" only part of the ankle. The doctor also seems to suggest his prior rating of permanent disability was "of the ankle," rather than at the level of the knee.

The applicant was then examined by a colleague of Dr. Collopy, Daniel A. Ladwig, M.D., in May 1995. Dr. Collopy noted the "tib-fib" fracture in 1992, the repair, and the subsequent arthroscopy showing chondromalacia. He also noted complaints of continuing ankle pain despite conservative treatment. He diagnosed post-traumatic left ankle arthrosis. Dr. Ladwig discussed the risks attendant with an ankle arthrodesis, and that procedure was scheduled for later that month.

Dr. Ladwig performed the ankle fusion on May 9, 1995. By August, the applicant was still experiencing some swelling, and discomfort with motion but the doctor described the condition as unchanged. The doctor thought things would continue to improve as of August 24, 1995.

In January 1996, the applicant reported feeling 95 percent better than he did before the surgery. He still had some achiness, however. The fusion site was well-healed. The doctor discussed removing the fusion hardware, although he would not guarantee it would eliminate the applicant's pain. The hardware removal was performed in early February 1996; the following week Dr. Ladwig opined the applicant reached a healing plateau.

The applicant testified that another ankle fusion was done in May 1996. He also testified that between the May 1995 and May 1996 ankle fusion surgeries, he lost a calf muscle. However, the record contains no treatment notes after the February 1996 hardware removal, nor do the doctor's expert medical opinions address the second ankle fusion or the calf muscle problem. Consequently, the extent of the applicant's permanent disability upon reaching a healing plateau from the May 1995 fusion surgery is all that is at issue here.

The applicant was examined by the respondent's independent medical examiner, Richard K. Karr, M.D., in December 1995. He opined that the applicant had reached a healing plateau at that time, a month or so before the fusion hardware removal. Dr. Karr described the applicant's disability as (1) complete loss of tibia talar motion, (2) equinas deformity at the arthrodesis, and (3) residual subjective complaints.

Dr. Karr also noted restrictions against standing more than two hours in an eight hour shift, against work at an unprotected height, against climbing ladders, and against working on a pitched surface. He noted further treatment might be necessary, and further degeneration might occur, although he did not favor doing the instrumentation removal. Noting that the applicant had neither reduced length of the tibia nor incurred a varus/valgus deformity relative to the knee, Dr. Karr rated permanent partial disability at 35 percent compared to amputation of the foot at the ankle.

Dr. Ladwig initially concurred with the Dr. Karr's opinion "that [the applicant] is left with a 35 percent permanent partial disability." Dr. Ladwig went on to concur in the work restrictions set by Dr. Karr, except to add a 40 to 50 pound lifting restriction. Exhibit A, Ladwig note for January 25, 1996.

However, two weeks later, in a follow-up note after the hardware removal procedure, Dr. Ladwig opined the applicant had sustained 35 percent permanent partial disability of the left lower extremity at the knee. He explained he did not think it would be fair to rate the disability at the ankle, "as the salvage operation would be above the knee amputation." Exhibit A, Ladwig note dated February 8, 1996.

The commission finds Dr. Karr's opinion with respect to the extent of disability to be more credible than Dr. Ladwig's. The arthrodesis surgery and the applicant's residual complaints involve the ankle, not the knee or the leg between the ankle and the knee. Section IND 80.32 (5), 1992 Wis. Adm. Code, gives minimum ratings for various ankle conditions: 40 percent for a total ankylosis (1)   in an optimum position, 30 percent for ankylosis of the ankle joint, and 15 percent for a subtalar ankylosis. Significantly, each of these rating is at the ankle, and Dr. Karr's thirty-five percent rating following a fusion at the ankle joint is reasonable given the thirty percent minimum award for ankylosis of the ankle joint.

In addition, Dr. Ladwig originally indicated he agreed with Dr. Karr's rating in his January 25, 1996 report. His explanation for his subsequent change to a rating at the knee, that the "salvage operation" would be above the knee, is not convincing. The commission leaves its order interlocutory in the event of possible additional disability from such a salvage operation. Until then, the applicant's disability is best rated at the level where the disability is actually present, at the ankle. (2)   Nor is Dr. Ladwig's reference to Dr. Collopy's initial rating of five percent disability at the knee persuasive, as Dr. Collopy himself later suggested the applicant's permanent disability was "of the ankle."

The commission therefore finds that the applicant has sustained permanent partial disability at thirty-five percent compared to loss of the foot at the ankle. This works out to 87.5 weeks of permanent partial disability (0.35 times 250 weeks) the rate of $144 per week (the statutory maximum for injuries in 1992), or a total of $12,600.

The ALJ's order indicates that the respondent conceded disability in that amount, although it had paid only $12,125.64 as of the date of the hearing. Based on the concession, though, the ALJ awarded attorney fees only on the portion of his award that exceeded $12,600.

Since the commission's award is limited to the $12,600 already conceded, no attorney fee is awarded. The commission also assumes the $474.36 difference between what the amount of the award ($12,600) and the amount of the respondent paid ($12,125.64), and orders that amount paid within 30 days if it has not been paid already.

Finally, given that the record indicates that the applicant may need, and indeed may have actually received, additional medical treatment to cure and relieve the effects of his injury, this order is left interlocutory on all issues.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed in part and affirmed in part. Within thirty days, the employer and its insurer shall pay the applicant, John R. Pritchard, the sum of Four hundred seventy four dollars and thirty-six cents ($474.36), unless that amount has already been paid.

Jurisdiction is reserved for additional findings and orders as warranted under this decision.

Dated and mailed: March 27, 1997
pritcjo.wrr : 101 : 8  ND 5.18

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Because the commission reversed the administrative law judge's findings of fact based on the reports of medical experts who did not testify at the hearing, a credibility conference under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972), was not necessary.

cc:
ATTORNEY ROGER A RUSTAD
DROSEN WANDT & RUSTAD

ATTORNEY MICHAEL D STOTLER
BREN NYBERG & THOMPSON


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Footnotes:

(1)( Back ) "Ankylosis in this context means the surgical immobilization and consolidation of a joint. Dorland's Illustrated Medical Dictionary.

(2)( Back ) Disability is rated at the point where the disability is present, not where the injury occurred or, presumably, where a salvage operation would occur. See Neal & Danas, Workers Compensation Handbook, sec. 5.18 (3d ed., 1990).