Timothy T. Andres Applicant
County of Juneau c/o Minute Men HR Management of Wisconsin, Inc. Self-Insured Employer
No. 2006-033350
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
April 9, 2019
Atty.
John D. Neal
Atty.
David G. Ress
WORKER’S COMPENSATION DECISION
[1]
DAVID
B. FALSTAD, CHAIRPERSON.
Order
The
commission affirms the decision of the
administrative law judge. Accordingly, the applicant’s
claim that the insurer’s failure to pay benefits due
constitutes bad faith under Wis. Stat. § 102.18(1)(bp)
is dismissed.
By the
Commission:
Michael H. Gillick, Commissioner
Procedural
Posture
This
case is before the commission to consider the
applicant’s claim that the insurer’s failure to
pay benefits due pursuant to a commission order dated March
15, 2011, constitutes bad faith under Wis. Stat. §
102.18(1)(bp). The applicant filed a hearing application in
December of 2017, alleging that under the applicable standard
of review for court appeals of commission decisions, there
was no credible evidence demonstrating that the claim was
“fairly debatable” after the commission decision.
The applicant also claimed that the decision to appeal the
commission decision to the circuit court and to the court of
appeals constituted separate acts of bad faith. The parties
filed briefs in lieu of a hearing, and an administrative law
judge for the Department of Administration, Division of
Hearings and Appeals, Office of Worker’s Compensation
Hearings, closed the record on September 6, 2018, and issued
a decision on September 15, 2018, dismissing the claim for
bad faith. The applicant filed a timely petition for
commission review.
The
commission has considered the petition and the positions of
the parties and has independently reviewed the evidence
submitted at the hearing. Based on its review, the commission
affirms the decision of the administrative law judge.
Findings
of Fact and Conclusions of Law
The
commission makes the same findings of fact and conclusions of
law as stated in the decision of the administrative law judge
and incorporates them by reference into the
commission’s decision.
Memorandum
Opinion
The
applicant worked as a detective for the respondent, a
self-insured employer.[2] The applicant injured his right knee on
September 25, 2006, when he slipped on vinyl tile while
working, and his right foot went out and caused him to do the
splits; he struck the ground, catching himself with his knee,
and felt a twinge and sharp pain in his right knee. The
applicant sought medical treatment, which showed the
applicant had a probable chronic tear with thinning and
remodeling of the medial meniscus. The applicant eventually
underwent an arthroscopic partial medial meniscectomy. The
applicant developed an infection in his knee and subsequently
required a complete synovectomy and irrigation and
debridement of the knee; when his treatment proved
unsuccessful, the applicant ultimately required a total knee
replacement. The respondent conceded the initial knee injury
and initial surgery, but it disputed that the
applicant’s subsequent infection and need for a total
knee replacement were work-related.
After a
hearing, and on the initial appeal to the commission, the
applicant argued that prior to the work injury the applicant
had undergone a liver transplant and was at a higher risk of
infection, that the signs of infection appeared within two
weeks of his right knee surgery, and that his doctors opined
that the infection was a post-procedural problem and was
caused by the work incident. The applicant argued that he was
credible when he indicated that he did not have a hot tub but
rather a bathtub with whirlpool jets, that he did not use the
whirlpool, and that he asked his doctor if he could use it
but was told he should not do so. Based on this evidence, the
applicant asserted that he had met his burden of proof that
the infection and subsequent medical treatment were
work-related.
The
respondent argued that the most likely mechanism of infection
was that the applicant went hot-tubbing while he still had an
open surgical wound, and that it was more likely than not
that the applicant’s infection came from dirty hot tub
water than from sterile surgical instruments. The respondent
argued that the applicant was not credible that he denied
using a hot tub because it was specifically mentioned in his
medical records that he went in the hot tub.[3] The respondent asserted that going into
the hot tub was a “rash act” that broke the chain
of causation with the work injury. According to the
respondent, the applicant’s decision to go into a tub
of hot water before his surgical incision was closed, when he
knew he was vulnerable due to his liver transplant, secondary
diabetes, and ongoing immune-suppressant drug therapy, was in
the same category of reckless behavior as in Kill v.
Indus. Comm’n.[4]
The
respondent also argued that there was no evidence that the
infectious organism was of a kind found in a hospital
operating room, and that to find that the applicant picked up
an infection during the surgery would be speculative and
contrary to the reasonable inferences from the medical
records. No doctor, including the respondent’s
infectious disease specialist, would opine to a reasonable
degree of medical probability where the infection came from.
Since the applicant did not prove the cause of the infection
with medical evidence, the respondent argued that the
applicant failed to meet his burden of proof.
In a
decision dated March 15, 2011, the commission affirmed the
decision of the administrative law judge and found that the
applicant’s right knee infection developed as a result
of the applicant’s work injury and that the injury
necessitated medical treatment, including treatment for the
infection and the total knee replacement. The commission
credited the applicant that he did not use his bathtub
whirlpool after the initial surgery in 2006, or later in 2007
after a further procedure when he had been instructed not to
do so. The commission also credited the applicant’s
treating surgeon that the applicant’s right knee injury
and subsequent infection were a direct result of the
applicant’s work injury and subsequent meniscectomy.
Based on the medical evidence and the applicant’s
treating surgeon’s opinion, and also given the lack of
evidence to indicate that the applicant engaged in a rash act
and used a hot tub, the commission found that the evidence
was sufficient to establish that the...
