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

SUSAN KING, Applicant

DEPT OF TRANSPORTATION, Employer

DEPT OF TRANSPORTATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-007515 & 2003-012619


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on February 10, 2004. Prior to the hearing, the self-insured employer conceded jurisdictional facts, compensable injuries to the applicant's left knee on January 11, 2001 and March 6, 2003, the payment of compensation for those injuries in specific amounts, and average weekly wage a the time of the 2003 injury at $694.54.

On April 23, 2004, the ALJ issued his decision in favor of the applicant. The employer 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 had two conceded knee injuries from slips and falls while working for the employer. The first injury occurred on January 11, 2001, and was followed by an arthroscopy with debridement on May 7, 2001. After the 2001 injury and arthroscopic surgery, the employer paid PPD at six percent, which was halfway between two ratings given by doctors (2 and 10 percent.) The second injury was on March 6, 2003, and was followed by a surgical patellofemoral replacement on September 16, 2003. The applicant had a good result from the patellofemoral replacement surgery, and was back at work by November 24, 2003.

While the employer conceded the 2003 injury occurred, it disputed the extent of disability and need for treatment resulting from the injury. That is, the employer asserted the disability and expense associated with the patellofemoral replacement was not due to the 2001 fall or the 2003 fall, but to the applicant's pre-existing degenerative condition. The ALJ resolved the extent of disability in the applicant's favor. After examining the medical records and the competing reports of Drs. Kohn and Steihl, the commission agrees, and concludes the work injuries precipitated, aggravated, and accelerated the applicant's pre-existing degenerative knee condition beyond normal progression, resulting in the need for the patellofemoral replacement surgery and the attendant disability. Indeed, on appeal to the commission, the employer no longer disputes causation, or more precisely the extent of disability from the March 2003 fall.

The contested issue, rather, is the extent of permanent partial disability following the patellofemoral replacement. The applicant's expert, Dr. Kohn, did not rate PPD in his practitioner's report at exhibit B. The doctor retained by the employer, Dr. Steihl, did not rate permanency consistent with his opinion that the work injury caused only a minor contusion with the fall on March 6, 2003.

ALJ McSweeney allowed both parties a chance to submit PPD ratings after the hearing. The applicant's attorney, Helen Schott, wrote the applicant's treating surgeon, Paul Sienkiewicz, M.D., on February 13, 2004. Dr. Sienkiewicz responded that "PPD will be determined December 2004." Ms. Schott forwarded Dr. Sienkiewicz's letter to ALJ McSweeney.

Thereafter, ALJ McSweeney issued his April 23, 2004 decision, ordering payment of PPD under Wis. Admin. Code § DWD 80.32(4). Specifically, ALJ McSweeney started with the 45 percent minimum rating specified in the code for a partial prosthesis, then deducted the six percent paid following the 2001 arthroscopy, and ordered payment based on a 39 percent loss at the knee.

The employer appeals. Its brief states:

"This case boils down to one question: can an ALJ make up his own PPD percentage where the claimant's WKC-16B provides no percentage and another of the claimant's treating physicians has stated that no percentage rating can be determined until December 2004?"

Of course, the ALJ did not exactly "make up his own PPD percentage." Rather, he awarded the minimum allowed under the administrative code for a partial knee prosthesis, less the PPD previously rated for a prior knee injury.

On appeal, the employer makes basically three arguments: First, that the extent of disability is a medical question which cannot be superseded based on an ALJ applying the administrative code minimum. Second, that the Administrative Code itself requires a deduction for pre-existing disability and the doctors agree the applicant had preexisting degeneration, so ALJ McSweeney made an award without taking that into account. Third, that there is no proof that the "patellofemoral replacement" procedure that the applicant underwent is the same as a "partial prosthesis" at the knee.

With respect to the issue of whether an ALJ may base an award on Wis. Admin Code, DWD 80.32(4), the employer in its brief places a great deal of emphasis on the disability rating pamphlet published by DWD. That pamphlet, which has been cited in appellate court decisions, emphasizes the doctor's judgment in rating PPD. However, it is a pamphlet and as the employer forthrightly acknowledges, does not have the force and effect of law. Wisconsin Admin. Code 80.32 is a validly-promulgated rule (1),  and it does have the force and effect of law. (2)   DeRosso Landfill Co. v. Oak Creek, 200 Wis. 2d 642, 652, 547 N.W.2d 770 (1996).

It is also true that the determination of permanent partial disability is an issue that may appropriately be addressed by medical experts. However, the court has never held that PPD may not also be addressed by standards set by rule. Indeed, with respect to the hearing loss procedure under Wis. Admin. Code § DWD 80.25, the Supreme Court has held that an administrative rule may properly be used to set a minimum affecting permanent partial disability ratings. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 657, 539 N.W.2d 98 (1995) (noting "that the Department of Industry, Labor and Human Relations, ... through proper administrative rule-making procedures, determined ... that loss of hearing is not compensable under Wisconsin's Worker's Compensation Act until the person has suffered a loss exceeding 30 decibels.") As the applicant points out, the commission has ordered compensation under a minimum rating set out in the administrative code even where an examining doctor has rated less permanent disability than the minimum specified in the code. (3)

The next issue is the question of pre-existing disability. First, of course, the ALJ did deduct the 6 percent PPD paid for the first surgery, and the commission follows suit in this order. (4)   The commission is not persuaded that the record shows any other pre-existent disability at the knee, beyond that six percent the employer paid for the 2001 injury. While pre-existing degeneration has been reported, that does not automatically equate with additional prior disability.

The final question is whether the "patellofemoral replacement" the applicant underwent is the same thing as a "partial prosthesis" to the knee as the term is used in Wis. Admin. Code § 80.32(4). In this case, September 15, 2003 and September 29, 2003 notes from Jamie Edwards, M.D., report that the applicant had preoperative and postoperative evaluations for a "total left knee arthroplasty. (5)"   Exhibit C. In the interim, of course, the applicant underwent the patellofemoral replacement on September 16, 2003. However, it appears from the applicant's testimony that she underwent in lay terms a kneecap replacement, which she seemed to distinguish from a total knee replacement. Transcript, pages 22 and 26. Dr. Sienkiewicz's notes, too, imply that because a bone scan showed that only the patellofemoral joint was abnormal, less than a total knee replacement was necessary. Exhibit C, Sienkiewicz's notes for July 23, 2003 and August 25, 2003.

The commission is satisfied, however, that the applicant underwent at least a partial prosthesis in her knee. A "prosthesis" is an artificial substitute for a missing body part. Dorland's Illustrated Medical Dictionary (29th ed., 2000). It seems quite clear from Dr. Sienkiewicz's September 16, 2003 operative report at exhibit C that the "components" cemented into place were artificial; the applicant described the procedure as giving her an artificial kneecap.

The code itself distinguishes between a partial prosthesis (rated 45 percent), and a removal of the patella (for which the disability rating is based on the functional impairment.) See Wis. Admin. Code § DWD 80.32(4). A removal of a patella would seem to be a patellectomy, a procedure discussed by Dr. Sienkiewicz as an alternative to a patellofemoral replacement. Exhibit C, note of Sienkiewicz dated August 25, 2003. The commission concludes the distinction is that the kneecap is replaced rather than merely removed -- in effect a partial knee prosthesis is attached -- in a patellofemoral replacement surgery.

The minimum rating for a partial knee prosthesis is 45 percent, and a deduction of for a pre-existing 6 percent in disability at the knee following the 2001 injury is appropriate. A thirty-nine percent loss at the knee entitles the applicant to 165.75 weeks of permanent disability compensation at $222 per week (the statutory maximum for injuries in 2003), for a total of $36,796.50. As of April 12, 2005, 77.3333 weeks of permanent disability compensation totaling $17,168.00 have accrued; 88.4167 weeks totaling $19,628.50 remain unaccrued.

ALJ McSweeney's order also awarded temporary total disability from September 15, to November 10, 2003 in the amount of $3,627.07, and temporary total disability from November 15 to November 24, 2003, in the amount of $463.03, for a total of $4,090.10. These sums are not contested on appeal and shall be paid as well.

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 $8,177.32 {0.20 times ($36,796.50 plus $4,090.10)}. However, the fee is subject to an interest credit of $226.97 to reflect the advance payment of fee attributed to unaccrued permanent disability. This present value fee due the applicant's attorney is thus $7,950.35; that fee plus costs of $275.54 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, 2005, is $16,730.94, which equals the sum of the TTD award ($4,090.10) and the accrued PPD award ($17,168.00), less the fee on the accrued award ($4,251.62), and less costs ($275.54)). The amount remaining to be paid to the applicant as it accrues after April 12, 2005, is $15,702.80, which equals the unaccrued portion of the award ($19,628.50), less the future value of fees ($3,925.70) thereon. That amount shall be paid to the applicant in monthly installments of $962.60 per month, beginning on May 12, 2005.

The ALJ also ordered the payment of the medical expenses claimed in exhibit G, and restoration of 370 hours of sick leave. Again, these findings are not disputed on appeal (6)  and are carried forward into this order, with the clarification that amounts adjusted from the medical bills shall not be ordered paid. Finally, like the ALJ, the commission leaves its order interlocutory to permit claims for additional disability regarding her knee as are appropriate, whether based on Dr. Sienkiewicz's ultimate rating or otherwise, and for a possible neck dispute identified by the ALJ in his order.

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.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Susan M. King, Sixteen thousand seven hundred thirty dollars and ninety-four cents ($16,730.94) in disability compensation.
2. To the applicant's attorney, Helen Schott, the sum of Seven thousand nine hundred fifty dollars and thirty-five cents ($7,950.35) in fees and Two hundred seventy-five dollars and fifty-four cents ($275.54) in costs.
3. To Dean Health Plan, Twenty-eight thousand nine hundred four dollars and eleven cents ($28,904.11) in reimbursement of medical expense.
4. To the applicant, Five hundred eighty-four dollars and thirty-five cents ($584.35) in medical mileage.

Beginning on May 12, 2005 and continuing on the twelfth day of each month thereafter, the employer and its insurer shall pay the applicant Nine hundred sixty two dollars ($962.00) per month until the additional amount of Fifteen thousand seven hundred two dollars and eighty cents ($15,702.80) is paid.

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

Dated and mailed April 27, 2005
kingsu . wrr : 101 : 1   ND 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Timothy D. Kiefer
Attorney Helen L. Schott



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Footnotes:

(1)( Back ) The Department of Workforce Development is authorized to promulgate rules under Wis. Stat. 102.15(1), 227.11, and 103.005(1).

(2)( Back ) A rule is defined by statute to be a standard or general order of general application that has the effect of law and that implements, interprets or makes specific legislation enforced by an agency. Wis. Stat. 227.01(13).

(3)( Back ) See for example, Glenn May v. Daimlerchrysler Corporation, WC claim no. 1999-024036 (LIRC, May 7, 2004), aff'd sub nom. Daimlerchrysler Corporation v. LIRC, case no. 04-CV-722 (Wis. Cir. Kenosha County, February 4, 2005).

(4)( Back ) The commission infers this rating was for loss of motion as the 2001 surgery, an arthroscopy with debridement, is not a procedure to which a minimum rating is assigned under Wis. Admin. Code DWD 80.32. Accordingly, a deduction for the pre-existing disability 6 percent is appropriate on this record, and this case does not pose the question of whether multiple surgeries for which code minimum disability ratings are set result in cumulative disability ratings. Accord: Glenn May, supra; Hellendrung v. Wal Mart, WC claim no. 1999039147 (LIRC, February 23, 2001).

(5)( Back ) "Arthroplasty" is synonymous with "joint replacement." Dorland's Illustrated Medical Dictionary (29th ed., 2000).

(6)( Back ) Restoration of sick leave was identified as an issue in the petition for review, but that challenge was withdrawn in the employer's brief.

 


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