Dillon v. Surly Brewing Co.

Dillon v. Surly Brewing Co. WCCA No. WC20-6363 (W.C.C.A. August 16, 2021)

The Workers Compensation Court of Appeals (WCCA) affirmed an order by a compensation judge finding the judge did not err in declining to address the issues of PPD benefits or penalties because neither were raised at the hearing. The WCCA also affirmed the compensation judge’s choice between competing expert opinions where the chosen opinion was adequately founded.

The pro se Employee, who has an extensive medical history with both right and left knee conditions, sustained an injury during a November 15, 2017 work retreat when employees were asked to demonstrate a physical ability. The Employee jumped, touched his toes in the air, and landed on both feet. When he landed he felt pain in both knees. A CT showed a comminuted intraarticular fracture of the right lateral tibial plateau. The Employer and Insurer initially admitted the right knee injury and paid for some of the medical treatment.

A November 17, 2017 MRI showed a medial meniscus tear of the left knee which was said to be of uncertain age, but consistent with chronic degenerative changes. The Employee continued to experience and receive treatment for left knee pain. His treating doctor, Dr. Corey Wulf of Twin Cities Orthopedics, repeated an MRI which showed a chronic rupture of the ACL. The Employee underwent arthroscopic partial medial and lateral meniscectomies on the left knee in May 2018.

The Employee moved to Massachusetts and in June 2019 his treating doctor noted bone-on-bone arthritis of the left knee and suggested total knee replacement.

The Employee filed a medical request for the recommended left total knee replacement in September 2019.

In response, the Employer and Insurer amended their position regarding the right knee denying primary liability and asserting injuries occurred during a recreational event and were not compensable. They further denied claims for the left knee were related to the event. Employer and Insurer argued that previous payments made for the right knee were made under a mistake of fact and refused to pay unpaid bills for the right knee.

The Employee’s pre-trial statement listed issues of penalties for frivolous denials and late payments, failure to make primary liability determination in a timely fashion, entitlement to PPD benefits related to the right knee, and unspecified PPD benefits for the left knee. At the hearing, the issues presented to the compensation judge on record were whether the Employee suffered a compensable injury, or whether he was injured during a recreational program, and if his injury is compensable, whether the Employee suffered an injury to his left knee as a result of the November 15, 2017 event.

The compensation judge determined the Employee suffered a compensable work injury to his right knee on November 15, 2017 and ordered payment for intervention claims related to right knee treatment. The compensation judge accepted the Employer and Insurer’s IME report by Dr. Amato, finding the Employee did not suffer any injury to his left knee on November 15, 2017.

The Employee appeals claiming the compensation judge erred in not addressing claims for penalties and PPD benefits for the right knee. However, the Employee’s claims for penalties and PPD benefits for the right knee were not raised by his pleadings. While included in his pre-trial statement, these issues were not raised at hearing. It is noted that while a pro se employee might be given some benefit of the doubt on some procedural matters, there was no medical evidence or doctor’s report presented to the compensation judge as to the extent of any PPD rating for the Employee’s right knee.

Takeaway: A compensation judge is limited to resolving only those issues that are raised at the hearing.