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


DENNIS HELLENDRUNG, Applicant

WAL MART, Employer

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999039147


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed February 23, 2001
hellede . wsd : 175 : 3    ND 5.18

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer asserts in its petition for commission review that the administrative law judge erred in issuing an amended decision which awarded the applicant five percent permanent partial disability at the left knee due to the work incident on July 10, 1999. The employer contends that the applicant failed to meet his burden of proof that he suffered additional permanent partial disability at the knee as a result of the work incident on July 10, 1999. The employer further contends that properly applying Wisconsin Administrative Code 80.32 (1) and 80.32 (4) can only result in an affirmation of the decision originally entered in this case denying any additional permanent partial disability. The employer contends that the administrative law judge's amended order completely ignores the language in Wisconsin Administrative Code DWD 80.32 (1) which provides that the minimum percentage also assumes that the member, the back, etc. was previously without disability and appropriate reduction shall be made for any pre-existing disability.

The evidence indicates that the applicant had a long-standing history of prior knee problems with significant degenerative arthritis prior to the incident on July 10, 1999, and had undergone 12 surgical procedures on his left knee with the last one in 1992. However, the applicant credibly testified that he had performed vigorous work without problems and the need for treatment over a period of approximately seven years from 1992 to 1999, until the incident while working for the employer on July 10, 1999. It was not established that the applicant had any continuing left knee problems despite his extensive prior treatment before July 10, 1999. Following his work injury on July 10, 1999, the applicant sought treatment and his leg was placed in an immobilizer. Dr. Ihle, the applicant's treating physician, stated that there was a definite causal relationship between the applicant's partial meniscectomy surgery in August 1999 and the work injury, noting that the applicant had given the injury some time to see if it would improve and it was getting worse. Dr. Ihle stated in his notes dated August 26, 1999, following the applicant's surgery, that he believed that the breakage or the change with the loose body attaching at the medial meniscus and causing significant pain and impingement on the medial condyle, was definitely work related. The applicant's operative report in August 1999 indicates that there were fresh findings from the medial femoral condyle and that the knee revealed there was some recent trauma. The commission finds that the applicant's need for surgery in August 1999 was caused by the work incident on July 10, 1999.

Under Wisconsin Administrative Code DWD 80.32 a total or partial meniscectomy with excellent or good results has a minimum assessment of five percent permanent partial disability. The commission finds that the administrative law judge appropriately assessed the employer with an additional five percent permanent partial disability under this provision. The employer is only being required to pay for the disability occasioned by the work injury on July 10, 1999, and the surgery that the injury necessitated, and not for any of the applicant's pre-existing impairment. The administrative law judge did not assess the employer with 30 percent permanent partial disability but only the five percent due to his most recent injury and subsequent surgery.

The employer points to the language in DWD 80.32 (1) which states that the minimum also assumes that the member, which is the back or the knee, was previously without disability and an appropriate reduction shall be made for any pre-existing disability. However, the rule contemplates that an additional five percent permanent disability will be awarded for the meniscectomy performed in this case. The footnote to DWD 80.32 (1) indicates that the same principle is to be applied as to the surgical procedures on the back. Under DWD 80.32 (11) the principles applying to back surgeries clearly contemplate that additional ratings and permanent disability will be given for accumulative surgeries to the back. A deduction for any pre-existing disability is most appropriately applied to previous losses of range of motion and amputations, but not to the listed surgical procedures in DWD 80.32. Therefore, the administrative law judge appropriately awarded the applicant five percent permanent partial disability at the left knee as a result of his work injury on July 10, 1999.

cc: ATTORNEY STEVE M JACKSON
PARRONI SIEDOW & JACKSON SC

ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI SC


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