Valosek, 040519 WIWC, 2015-013904

Docket Nº:2015-013904
Case Date:April 05, 2019
No. 2015-013904
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
April 5, 2019
          Attorney James A. Meier           Attorney Paul R. Riegel           WORKER’S COMPENSATION DECISION 1           DAVID B. FALSTAD, CHAIRPERSON.          Interlocutory Order          The commission affirms the decision of the administrative law judge. Accordingly, SSM Health Care of Wisconsin, Inc. (employer) is prospectively ordered to pay for the arthroscopic procedure proposed by Bradley M. Fideler, M.D., in his clinic note dated June 13, 2017. Jurisdiction is reserved for such further findings and orders as may be necessary, consistent with this decision.          By the Commission:           Michael H. Gillick, Commissioner          Procedural Posture          On October 16, 2017, the applicant submitted a hearing application claiming compensation, including prospective surgery, for a right knee injury alleged to have arisen out of and in the course of her employment with the employer. The date of the claimed work injury is January 29, 2015. On April 10, 2018, an administrative law judge (ALJ) for the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings held a hearing in the matter. On May 17, 2018, the ALJ issued a decision which found that the applicant sustained a compensable right knee injury on January 29, 2015. The ALJ awarded compensation that had been previously paid by the employer, but which the employer subsequently contested as paid under mistake of fact. The ALJ also found that the employer was prospectively liable for proposed right knee surgery. Respondent timely filed a petition for commission review, alleging error in the ALJ's decision.          The commission has considered the petition and the positions of the parties, and has done so in conjunction with its review of the evidence submitted at the hearing. Based on its consideration and review, the commission agrees with the decision of the ALJ. The commission adopts the findings and conclusions in the ALJ's decision as its own.          Memorandum Opinion          In its answer to the applicant's October 2017 application for hearing, the employer admitted that she had sustained a compensable right knee injury on January 29, 2015. However, it disputed the nature and extent of disability. Subsequently, it made payments of temporary disability and five percent permanent partial disability at the knee. In the current proceeding it has asserted that these payments were made under mistake of fact, but has offered no detailed argument to support this contention, other than making reference to the August 2017 and February 2018 medical opinions of Steven Pals, M.D.          In any case, the employer has waived recovery of the compensation it previously paid. The respondent's central argument before the commission is that the ALJ erred in ordering liability for the prospective right knee surgery currently proposed by Dr. Fideler. The commission finds that the ALJ properly made the employer liable for the prospective surgery, because it is a compensable consequence of the work injury of January 29, 2015. To explain its finding, the commission must first repeat many of the factual findings made by the ALJ.          The applicant's birthdate is November 22, 1988. In June of 2001, she was a rear seat passenger in an automobile that was struck from behind, causing her knees to impact against the back of the front seat. As a result of this incident, she was diagnosed with bilateral patellar tendinitis. On January 23, 2002, she received emergency room treatment for extreme right knee pain after hearing a "pop" in the knee while playing basketball. She was treated conservatively and...

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