COURT OF APPEALS DECISION DATED AND FILED February 23, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Acuity Insurance Company appeals a judgment confirming a decision of the Labor and Industry Review Commission (LIRC) awarding worker’s compensation benefits to Kyle J. Zwiefelhofer. Acuity argues that LIRC’s factual findings are based on speculation and do not support the award made. We disagree and affirm.
¶2 LIRC adopted the following facts as found by the administrative law judge (ALJ). Zwiefelhofer is an electrician for T.J. Electric, Inc. In June 2005, while descending a ladder after performing a wiring task, Zwielfelhofer’s foot slipped off a rung and he twisted his right knee. Despite pain and swelling, Zwiefelhofer continued working.
¶3 About two weeks later, Zwiefelhofer sought medical attention
from orthopedic surgeon Dr. John Drawbert.
An MRI revealed “fairly severe” osteoarthritis of the medial compartment,
an extensive degenerative medial meniscus tear and a partial tear of the anterior
cruciate ligament (ACL).
Dr. Drawbert described a “bone-to-bone deformity” with a “varus ACL[-]deficient
knee” and recommended a high tibial osteotomy (HTO). Zwielfelhofer’s other treating
physician, orthopedic surgeon Dr. Robert Meisterling, also noted the medial
compartment osteoarthritis and concurred in the recommended treatment.
¶4 Zwiefelhofer has a history of knee problems. In 1991 he suffered a probable ACL tear in the same knee for which Dr. Drawbert initially recommended surgical repair. When the knee became asymptomatic, Zwiefelhofer opted to forgo surgery. Zwiefelhofer also had ACL tears in his left knee, and had surgery by Dr. Meisterling in 1989 and Dr. Drawbert in 1993. Zwiefelhofer missed no work due to his right knee between the 1991 or 2005 injury and none after the 2005 injury until September of 2008.
¶5 Zwiefelhofer filed a worker’s compensation claim. Acuity, T.J. Electric’s worker’s compensation carrier, denied the claim based upon the examination and report of Dr. Gorden Clark, a physician Acuity retained to perform an independent medical examination (IME). After a hearing, the ALJ concluded that Zwiefelhofer suffered a traumatic injury while performing service growing out of and incidental to his employment. The ALJ ordered temporary disability benefits and the payment of all treatment expenses associated with the HTO. LIRC affirmed the ALJ’s decision and adopted the ALJ’s findings and order as its own. The circuit court affirmed LIRC’s decision.
¶6 On appeal, Acuity argues that LIRC acted in excess of its authority by making findings not based on credible and substantial evidence and that its findings do not support the award. More specifically, Acuity contends that Zwielfelhofer’s right knee problems are “solely the result of his longstanding, progressively worsening degenerative condition,” such that LIRC acted in excess of its authority by “inexplicably” ordering Acuity to pay worker’s compensation benefits for a surgery the “medical experts unanimously agree” would address only the underlying condition, not any acute ACL injury.
¶7 We review LIRC’s decision, not the circuit court’s. Brakebush Bros., Inc. v. LIRC, 210
¶8 The ALJ listed its reasons for concluding that the treating
physicians’ medical opinions were more compelling and credible than those of
Dr. Clark, the IME physician. One or
both of the treating physicians found that Zwiefelhofer’s right knee was
asymptomatic for years prior to his fall; his ACL tear was due at least in part
to the work injury; the acute injury “rapidly accelerated the demise of the
knee from an arthritic perspective”; Zwiefelhofer’s underlying condition was
unrelated to the acute ACL rupture; and an HTO is necessary to properly treat
Zwiefelhofer’s knee.
¶9 Dr.
¶10 Zwiefelhofer, the only witness to testify, testified that he
injured his right knee in 1991, diagnosed as a probable ACL disruption, experienced
no on-going symptoms, sought no further treatment and missed no work due to
it. He also testified his right knee was
otherwise asymptomatic before this injury, but that he had surgery for left
knee problems. The ALJ implicitly found
Zwiefelhofer to be credible. We may not
substitute our judgment for that of LIRC as to the weight and credibility of
the evidence on any finding of fact. Advance
Die Casting Co. v. LIRC, 154
¶11 Acuity argues that credible evidence supports a different
conclusion about the nature of Zwiefelhofer’s work injury. The question before this court, however, is
not whether there is credible evidence in the record to support a finding LIRC
did not make, but whether there is any credible evidence to support the one it
did. Appleton Elec. Co. v. Minor,
91
¶12 Upon reviewing the record, and in construing the evidence in a
light most favorable to LIRC’s findings of fact, we conclude that credible and
substantial evidence supported LIRC’s finding that Zwiefelhofer’s injury caused
an acceleration of a pre-existing degenerative arthritic condition “beyond its
normal progression” and that an HTO was necessary to correct it. Zwiefelhofer’s injury therefore is
compensable. See Lewellyn v. DILHR, 38
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.