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

THOMAS GUTOSKI, Applicant

KOHLER CORPORATION, Employer

KOHLER CORPORATION , Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-019641


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 28, 2003. The employer submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury to the applicant's left knee occurring on December 17, 1997.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained a conceded injury to his left knee when he slipped and fell down concrete steps at the employer's plant on December 17, 1997. His treating physician, Dr. Scott Sellinger, thereafter performed four arthroscopic surgeries to the knee. First, on February 23, 1998, he repaired a complex tear of the posterior horn of the medial meniscus. Second, on August 10, 1998, he repaired a recurrent tear also at the posterior horn of the medial meniscus. Third, on February 18, 1999, he performed a complete removal of the remaining medial meniscus. Fourth, on June 1, 2000, he performed a debridement of the medial  compartment together with removal of a synovial fold from the anterior cruciate ligament.

The applicant's knee problems continued and he was referred to Dr. William Raasch, who on February 6, 2001, surgically inserted a meniscal implant (a donated medial meniscus from a cadaver). The implant did well but a sixth surgery was required on April 3, 2002, when Dr. Raasch had to repair a small tear which had developed in the posterior horn of the implanted meniscus. The applicant continues to experience pain deep in his knee joint, difficulty standing for any period of time, swelling, and clunking/clicking noises with movement of the knee.

In a letter dated December 21, 2000 (prior to the two surgeries by Dr. Raasch), Dr. Sellinger assessed 10% permanent partial disability attributable to the work injury. In a letter dated December 11, 2001, Dr. Raasch assessed 10% permanent partial disability for the meniscal implant procedure.

At the insurance carrier's request, Dr. Sean Keane examined the applicant on December 6, 2001. In his report dated December 29, 2001, Dr. Keane did not give a specific diagnosis for the work injury, although he indicated that the applicant "reports" that it resulted in a meniscal tear. Dr. Keane opined that the work injury caused the first surgery of February 3, 1998, that healing was reached within three months after that surgery, and that, a 5% permanent partial disability resulted. He further opined that the applicant's subsequent treatment and surgeries were attributable to his preexisting degenerative condition. Dr. Keane reiterated this opinion in a report dated February 18, 2002.

The administrative law judge awarded 10% permanent partial disability at the knee, citing the reports of Drs. Sellinger and Raasch, without further explanation. The applicant petitioned and asks for 5% for each of five of the surgeries, and 40% for the implant procedure of February 6, 2001. Applicant's argument is that the code minimum (Chapter DWD 80.32(11)) is 5% for each partial meniscectomy, as well as 40% for a "partial prosthesis," which the applicant argues is what the meniscal implant constituted. The employer argues for affirming the 10% assessed by Dr. Keane, or in the alternative, for giving only 25% permanent partial disability (5% for each of the first three partial meniscectomies and 10% for the implant procedure). The employer argues that there was no partial meniscectomy on June 1, 2000, because there was no meniscus left, and there was no medical assessment of permanency to the partial meniscectomy of April 3, 2002. The employer also argues that the implant does not constitute a partial prosthesis.

The applicant is entitled to the code minimum for his surgeries, which in this case totals 30% permanent partial disability. The commission arrives at that figure by allowing 5% each for the first three surgeries which were partial meniscectomies, 10% as assessed by Dr. Raasch for the meniscal implant, and another 5% for the partial menisectomy performed on the implant. The surgical report of June 1, 2000 (the fourth surgery), does not describe removal of any residual meniscal material. The additional permanency is being awarded in accordance with the administrative code minimums, and the code does not provide a minimum percentage for exploration of the medial compartment or for removal of a synovial fold from the ACL. In addition, no medical report assigns permanency to this particular procedure. The employer argues that the partial meniscectomy on April 3, 2002, was not accompanied by a medical assessment of permanency, but this overlooks the fact that the code provides a minimum 5% for a partial meniscectomy. The fact that the procedure was done on an implanted meniscus does not make it less of a meniscectomy.

The applicant's argument that the meniscal implant constitutes a partial prosthesis is rejected. A prosthesis is defined in Dorland's Medical Dictionary as an "artificial" substitute for a missing body part, and that is what a prosthesis is commonly understood to mean. The applicant received a transplanted body part which had a good result. The 10% rating Dr. Raasch gave for the procedure was credible.

Thirty percent permanent partial disability at the knee is the equivalent of 127.5 weeks of compensation at the applicable rate of $174.00 per week, for a total of $22,185.00. The employer previously conceded and paid 5% permanent partial disability, or $3,697.50, leaving a balance of $18,487.50. At the beginning of the hearing held on October 29, 2002, applicant's attorney indicated that no permanent partial disability had yet accrued, due to the applicant receiving disability benefits during his healing periods, and the record is unclear as to whether the applicant had reached a healing plateau as of October 29, 2002. Accordingly, the applicant should clarify to the employer when his healing ended and when permanent partial disability began to accrue, so that accrued compensation may be computed and paid. Should any dispute arise in this regard, opportunity for further hearing to resolve such issues shall be granted.

The administrative law judge awarded what appears to have been a 10% attorney's fee to Attorney Fortune, but again the record is unclear with respect to what the fee agreement was between Attorney Fortune and the applicant, and Attorney Fortune and the applicant should also clarify that issue so that payment of the proper attorney fee and costs may be made to Attorney Fortune. The record demonstrates that the applicant's first attorney, Dennis H. Wicht, incurred costs of $424.62, which will be reimbursed to him. Of course, all attorney fees and costs shall be subtracted from the permanent partial disability award.

Reasonably required medical expenses are due as follows: to Sheboygan Orthopaedic Associates, S. C. the sum of $524.05; to Sheboygan Medical Center the sum of $267.84; to Kohler Select the sum of $2,726.37; to Touch Point the sum of $2,458.95; to the applicant as reimbursement for prescription expense the sum of $83.21; to the applicant as reimbursement for medical mileage expense the sum of $968.29; and to the applicant as reimbursement for other out-of-pocket medical expenses the sum of $1,737.27.

The applicant may require further medical treatment and sustain additional disability attributable to the work injury, and therefore the order will 'be left interlocutory.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the self- insured employer shall pay to Attorney Dennis H. Wicht reimbursement for costs in the amount of four hundred twenty-four dollars and sixty-two cents ($424.62); to Sheboygan Orthopaedic Associates, S.C. the sum of five hundred twenty-four dollars and five cents ($524.05); to Sheboygan Medical Center the sum of two hundred sixty-seven dollars and eighty-four cents ($267.84); to Kohler Select the sum of two thousand seven hundred twenty-six dollars and thirty-seven cents ($2,726.37); to Touch Point the sum of two thousand four hundred fifty-eight dollars and ninety-five cents ($2,458.95); to the applicant as reimbursement for medical prescription expense the sum of eighty-three dollars and twenty-one cents ($83.21); to the applicant as reimbursement for medical mileage expense the sum of nine hundred sixty-eight dollars and thirty-nine cents ($968.39); and to the applicant as reimbursement for other out-of-pocket medical expense the sum of one thousand seven hundred thirty-seven dollars and twenty-seven cents ($1,737.27).

As soon as the applicant and his attorney have clarified to the employer what the applicant's healing date or dates have been, the employer shall immediately pay any accrued permanent partial disability in accordance with the above findings, and also begin monthly payment of any unaccrued permanent partial disability. The attorney fees and costs shall be subtracted from the permanent partial disability amount.

Jurisdiction is reserved with respect to clarification of the accrual date(s), the amount of fees and costs due Attorney Richard A. Fortune, and future treatment and/or disability.

Dated and mailed November 24, 2003
gutosth . wrr : 185 : 2  ND 5.18

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission's partial reversal of the administrative law judge's decision was based on application of the administrative code minimums to the surgeries, which both the administrative law judge and the commission found compensable. Accordingly, no credibility/ demeanor issues arose.

The commission eliminated the administrative law judge's payment of $633.84 in medical costs to an "unknown" insurance carrier listed in applicant's Exhibit S. Reimbursement cannot be ordered to "unknown" entities.

cc: 
Attorney Richard A. Fortune
Attorney Jan M. Schroeder


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