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Judd v. State ex rel Wyoming Workers' Safety and Compensation Division

June 25, 2010


Appeal from the District Court of Converse County, The Honorable John C. Brooks, Judge.

The opinion of the court was delivered by: Golden, Justice


[¶1] Lois Judd suffered an injury to her right knee while at work. The Workers' Compensation Division (Division) found the injury to be compensable and awarded benefits. Judd's knee continued to cause her pain and approximately six months later she sought preauthorization from the Division for knee replacement surgery on her right knee. The Division determined that Judd's current knee problems related solely to pre-existing degenerative arthritis and denied further benefits. The Division's denial was upheld by the Medical Commission and affirmed by the district court. We reverse.


[¶2] Judd presents these issues on appeal:

A. Did the Medical Commission have jurisdiction to hear this case?

B. Was the decision by the Medical Commission Hearing Panel arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law?

C. Was the Findings of Fact, Conclusions of Law and Order of Medical Commission Hearing Panel denying benefits for total right knee replacement supported by substantial evidence?


[¶3] Lois Judd began working as an aide for North Platte Physical Therapy of Douglas, Wyoming, on August 19, 2006. As an aide, Judd's responsibilities included direct patient care, transfer of patients, administration of exercises at the instruction of the therapist, and general maintenance of the therapy department. On November 8, 2006, while working, Judd tripped, fell to the floor and injured her right knee. She immediately experienced pain, swelling and decreased range of motion in her right knee. Dr. Mark Murphy, who would become Judd's treating physician, was in the vicinity and looked at Judd's knee. Dr. Murphy instructed that heat be applied to the knee, that Judd make an appointment for an examination, and that she stay off the knee until her appointment.

[¶4] On November 9, 2006, the day following her work injury, Judd had an x-ray taken of her right knee. The x-ray showed severe arthritic disease in the patellofemoral compartment and an old injury to the medial collateral ligament.

[¶5] On November 22, 2006, Judd saw Dr. Murphy for a formal examination. During that examination, Judd reported that she had continuing pain and swelling, that she had been doing physical therapy since the injury and that she was still using crutches. Judd also reported that prior to her November 8, 2006, fall, she had experienced some aching in her right knee with changes in the weather. On that same date, Judd had an MRI taken of her right knee. The MRI showed:

1) Considerable degenerative disease of the medial compartment with loss of areas of the femoral and tibial cartilage, increased bone density/sclerosis of the articulating surface with some irregularity, marginal osteophyte formation, and increased T2 signal/edema in the anterior portion of the medial tibial plateau and adjacent femoral condyle.

2) Irregularities and increased signal in the menisci, particularly the medial, consistent with degenerative change. A definite surface communicating tear is not clearly seen on both views, but it appears to be present in the posterior horn of the medial meniscus.

3) Small approximately 1cm popliteal cyst.

4) Mild degenerative changes of the lateral and patellofemoral articulations.

[¶6] Judd saw Dr. Murphy again on November 29, 2006, and underwent arthroscopic surgery on her right knee on November 30, 2006. Dr. Murphy's Operative Report reported the following postoperative diagnoses:

1. Right knee medial meniscus tear, extensive.

2. Extensive grade IV chondromalacia patellofemoral joint.

3. Extensive grade III and IV chondromalacia medial compartment.

4. Medial hypertrophic parapatellar plica.

Dr. Murphy's deposition was taken, and he explained the postoperative diagnoses. Dr. Murphy described the degenerative changes in Judd's right knee as longstanding, and he testified that the medial meniscus tear likely predated Judd's November 8, 2006, fall. He further testified:

Despite the pretty impressive technical and diagnostic abilities of the MRI, direct vision is clearly -- gives me a better picture of what's going on.

There was a plica, which is a scarred fold in the joint lining.

There was grade four chondromalacia on the under surface of the patella and in the groove that the patella or kneecap tracks. And grade four is down to raw, exposed bone.

And there was grade three of four chondromalacia of the medial femoral condyle -- the inside of her knee -- as well as a medial meniscus tear.

I expected to see changes in the cartilage from the changes on her x-ray; I expected the medial meniscus tear. But I -- it -- but the true extent of damage to the cartilage was really brought home by the direct vision of the cartilage surfaces.

[¶7] The Division paid for the arthroscopic surgery on Judd's right knee, and Judd applied for and received temporary total disability benefits for the expected recovery period following that surgery. On December 13, 2006, Judd saw Dr. Murphy and reported that she thought her right knee was improving, but on January 3, 2007, in another follow-up visit, Judd reported frustration with her inability to put weight on her right knee. During the January appointment, Dr. Murphy discussed with Judd the option of total knee replacement for the right knee. On February 7, 2007, an x-ray of Judd's right knee was taken in conjunction with the discussion of a total knee replacement. The x-ray showed diffuse osteoporosis and no acute fracture or dislocation.

[¶8] On February 13, 2006, Judd, through Dr. Murphy's office, submitted an application for preauthorization of a total knee replacement surgery on her right knee. The Division responded that it could not provide the requested authorization without additional information concerning the relationship between Judd's work injury and the need for the proposed surgery. On April 17, 2007, the Division sent Judd to Dr. Paul Ruttle, an orthopedic surgeon, for an independent medical evaluation. Dr. Ruttle concluded that Rudd's need for total knee replacement surgery on her right knee was not related to her November 2006 work injury:

The patient's current problems appear unrelated to original work exposure. It is clear that this patient has significant pre-existing osteoarthrosis in right knee. A grade IV chondromalacia at patellofemoral joint and medial compartment simply did not develop as the result of a fall while working on November 8, 2006. Indeed, the patient was symptomatic relative to knee, noting aching pain in knee accompanying weather changes prior to operation. It is also of note that the patient has undergone a total knee arthroplasty in the past on left. Approximately 30% of patients who require total knee arthroplasty on one side will develop significant degenerative changes on the contralateral side.

Further complicating the patient's case is the fact that she is 5'2" and weighs 190 pounds. This results in a body mass index of 35 which is considered obese. Work in the orthopedic and rheumatologic literature in the United States and Europe suggests a strong association between obesity and the development of osteoarthrosis in the knee.

Relative to specific questions, What was the extent of the injury sustained in work injury November 8, 2006? The patient appears to have rendered underlying meniscal pathology symptomatic in the face of severe pre-existing degenerative osteoarthrosis in knee.

In your medical opinion, what disability time frame would you anticipate was related to this injury? Approximately two months. This two month period would allow time in the knee that was not affected by significant pre-existing osteoarthrosis to heal.

Are there more probable causes for misjudged severe arthritic disease and degenerative disease than the incident November 8, 2006? Yes. The rationale for this has been outlined above. As noted, the patient's problems were clearly pre-existing and related in combination to a genetic predisposition to osteoarthrosis in the knee and underlying obesity.

In all medical probability, is the need for total knee replacement a direct result of the November 8, 2006 injury? No. The rationale of this has been outlined above.

Would Ms. Judd's severe arthritic disease and degenerative disease, in your opinion, be primarily due to aging and normal activities of daily living? Yes. Concurrent with genetic predisposition as presented by pathology that was treated with total knee on left and obesity.

[¶9] On May 4, 2007, the Division issued a final determination letter denying coverage for the proposed total knee replacement surgery on the right knee based on its conclusion that the need for the surgery was due to Judd's pre-existing condition. By separate letter, the Division also informed Judd on May 4, 2007, that based on Dr. Ruttle's evaluation, Judd had reached maximum medical improvement with a one percent permanent partial impairment rating and the Division would no longer be paying her temporary total disability benefits.

[¶10] On May 16, 2007, Judd submitted a written objection to the denial of her surgery preauthorization and requested a hearing on that issue. Judd also submitted a response to the permanent partial impairment rating. In her response, Judd objected to the rating and requested a second opinion. Judd stated as the basis for her objection, "I was not obese as stated when the accident occurred. I was working fine, standing on my feet, and now I can barely walk w/out severe pain."

[¶11] The Division referred the issue of Judd's surgery request to the Office of Administrative Hearings (OAH) for hearing and referred the issue of Judd's permanent partial impairment rating to Dr. Anne MacGuire, a rheumatologist, for a second opinion. The OAH determined it lacked jurisdiction over Judd's case because of the nature of the issue and on June 12, 2007, returned the case to the Division for referral to the Medical Commission. On June 15, 2007, the Division referred Judd's request for hearing on the surgery preauthorization request to the Medical Commission.

[¶12] On June 25, 2007, Judd was examined by Dr. MacGuire for a second opinion on her permanent partial impairment rating. Dr. MacGuire concluded:

Reviewing the entire case of the injury, the claimant twisted her knee and injured her right medial meniscus. She qualifies for a 1% impairment of the right knee secondary to this injury. All other issues, specifically the extensive degenerative arthritis of the right knee were very clearly pre-existing.

Addressing the questions put to me by the Division:

1. What was the extent of the injuries sustained from the work incident on 11-8-06?


The claimant suffered a torn right medial meniscus on 11-8-06. This injury did not cause the extensive pre-existing degenerative arthritis of her right knee.

2. In your medical opinion, what timeframe of disability, would you anticipate related to this injury?


It would be my impression that the claimant should have been recovered from the torn medial meniscus within 6-8 weeks.

3. Are there more probable causes for Ms. Judd["s] severe arthritic disease and degenerative disease than the incident on 11-8-06?


The claimant has a previous history of significant obesity. At 5'2" tall with weighing close to 250 pounds, she has had extensive and excessive weight bearing on her knees. The left knee has already been replaced secondary to severe end-stage degenerative arthritis. Dr. Murphy's arthroscopic evaluation, shortly after the injury documented basically bone on bone in an end stage right knee. The current literature reflects that women have more degenerative arthritis of their knees than men in general, usually secondary to excessive weight gain and decreased activity and decreased muscle strength in both lower extremities. Much of the current osteoarthritis at this time is felt to be genetically determined. This claimant had pre-existing left knee arthroplasty secondary to end-stage degenerative arthritis. At the time of this injury, she also had end-stage degenerative arthritis of the right knee. It is expected that the claimant would have needed a right total knee fairly quickly, whether or not she had sustained this minor injury.

4. In all medical probability, is the need for a right total knee replacement a direct result of the 11-8-06 injury?


In all medical probability of the need for the right total knee replacement would have occurred within a very short period of time because of the extensive degenerative changes of the claimant's knee. The injury did not cause the need for replacement. The claimant was basically doomed to have a right totally arthroplasty because of pre-existing progressive end-stage degenerative arthritis caused by a multifactorial issues specifically significant obesity, smoking, decreased muscle strength, genetics, activity and poor fitness levels.

5. Would Ms. Judd["s] severe arthritic disease and degenerative disease in your opinion be primarily due to aging and normal activities of day-to-day living?


The literature is very clear that Mrs. Judd's severe arthritic disease and degenerative disease in the right and left knees is secondary to multifactorial issues, specifically poor conditioning, poor fitness, genetics, obesity and generalized lack of fitness. These are specifically due to aging and the activities of day-to-day living.

[ΒΆ13] On August 7, 2007, before the Medical Commission heard and ruled on Judd's request for preauthorization of her total knee replacement surgery, Judd proceeded with the surgery. In his Operative Report, Dr. Murphy, who performed the total knee replacement, listed ...

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