Wis.LIRC WC Decision: Degner, Sharon - May 12, 2006 - ND 5.46 - Employer's Liability for Medical Expense - applicant whose personal liability to medical providers was discharged in bankruptcy, sought payment to her of amount equivalent to discharged expenses, with providers taking nothing - howerever, while applicant's liability may have been extinguished in bankruptcy, respondents remain liable to the providers pursuant to 102.42, so payment was properly ordered to providers from respondent

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SHARON A DEGNER, Applicant

NEWCOR/PLASTRONICS DIV, Employer

HARTFORD FIRE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-000343

Newcor/Plastronics Division and Hartford Fire Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 21, 2005. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a compensable hernia injury on August 18, 2001, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Delete the third sentence of the first full paragraph on page 6 of the administrative law judge's decision, and substitute the following sentence therefor:

However, the credible, unrebutted testimony from the applicant was that after the work injury occurred, she was unable to continue working; and after reporting the injury to her supervisor she spent the rest of her shift, amounting to several hours, sitting in the employer's production office.

The rest and remainder of the administrative law judge's Findings and Order are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are modified to conform to the foregoing, and as modified are affirmed.

Dated and mailed May 12, 2006
degnesh . wpr : 185 : 8 ND 5.46

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

In their petition, respondents emphasize two evidentiary facts that they assert render the applicant's claim incredible. First, Dr. Chaillet's clinic note of August 28, 2001, does not include reference to a work incident. Second, in her recorded statement of November 29, 2001, and in her descriptions given to Drs. Davies and Zupnik, the applicant estimated the weight of the parts bags at anywhere between two and six pounds, which respondents assert is an inconsequential weight incapable of being causative of the applicant's hernia.

The commission has reviewed numerous cases in which busy physicians fail to write down descriptions of a work incident in their clinic note, and that would be particularly likely for an individual such as Dr. Chaillet, who was not the applicant's regular physician. Dr. Chaillet diagnosed a probable kidney stone based on a small amount of blood found in the applicant's urine, from which it is inferred that he would not be particularly concerned about a traumatic work incident. If the other evidence of record did not make it entirely clear that the work incident occurred as described by the applicant, Dr. Chaillet's failure to mention the incident in his clinic note might have been found more significant.

The applicant's failure to closely estimate the actual weight of the parts bags is inferred to have been simple error on her part. The unrebutted testimony was that each of the bags contained 1,000 of the parts. The applicant's sister credibly testified that during her nine years of working with these bags, she had weighed them after they had been soaked, and the weight was 22 pounds apiece. It is evident from applicant's exhibit E (one of the parts), that 1,000 of these parts would weigh much closer to 22 pounds than from two-to-six pounds. In addition, Dr. Davies credibly opined that even assuming three-to-five pound bags of parts, the applicant's work-duties aggravated, accelerated, and precipitated her preexisting hernia condition beyond normal progression.

A letter from Attorney William F. Mross, who was apparently the applicant's bankruptcy attorney, was sent to the administrative law judge subsequent to the filing of the petition for commission review. In this letter, Attorney Mross asserts that because the applicant's bankruptcy proceeding discharged her from liability for certain medical expenses ordered paid to the providers by the administrative law judge, an amount equivalent to those medical expenses should be paid to the applicant and the providers should receive nothing. However, while the applicant's personal liability for these expenses may have been extinguished in her bankruptcy proceeding, the respondents remain liable to the providers pursuant to Wis. Stat. § 102.42. See Weigel v. Sentry Indemnity Co., 94 Wis. 2d 172, 180-81, 287 N.W.2d 796 (1980); and Burling v. Schroeder Hotel Co., 238 Wis. 2d 17, 30-31, 298 N.W.2d 207 (1941). Accordingly, the payments ordered by the administrative law judge were correct.

cc:
Attorney Robert C. Angermeier
Attorney Robert Zilske

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