Andres, 040919 WIWC, 2006-033350

Docket Nº:2006-033350
Case Date:April 09, 2019
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...

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