MARIA L RODRIGUEZ, Applicant

WISCONSIN ILLINOIS SENIOR HOUSING INC, Employer

ROYAL INSURANCE CO OF AMERICA, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 12, 2006
rodrima . wsd : 175 : 4  ND 5.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The employer asserts in its petition for commission review, the administrative law judge erred in determining the applicant was entitled to temporary total disability benefits from July 11, 2004 through the date of hearing, October 25, 2005, due to her work-related back injury on December 6, 2003. The employer states that while the administrative law judge found the applicant was in a continuing healing period, the employer believes the medical documentation and testimony in the record is insufficient to substantiate a continuation of the healing period. The employer states the applicant has failed in her burden of proof to show an entitlement to a continuing period of temporary total disability. The employer states that although Dr. Ahuja, the applicant's treating physician, recommends a fusion surgery to cure and relieve the applicant's work injury in his WC-16-B dated June 2005, Dr. Ahuja completed the form without seeing the applicant and evaluating her since June 17, 2004.

The employer further points to the case of Larson Company v. Industrial Comm., 9 Wis. 2d 386, 392 (1960)  for the proposition that the healing period ends when there has occurred all of the improvement that is likely to have occurred as a result of treatment and convalescence. The employer states that pursuant to GTC Auto Parts v. LIRC, 184 Wis. 2d 461, the court made it clear that the commission does not have authority to order an employer to pay an injured employee temporary total disability benefits for a period after the employee's medical condition has stabilized and before the employee undergoes subsequent surgery.

However, the commission has affirmed, in recent cases, that where the employer refuses to make payment for needed treatment, the employer cannot come back and claim the applicant has reached a healing plateau, and therefore is not entitled to temporary disability benefits due to a lack of ongoing treatment. In the case of Cordts v. Mains, Commission Decision dated July 21, 2005, the employer asserted that temporary total disability benefits should be cut off as of March 13, 2003, when the treating physician indicated the applicant would have to remain off work until she had undergone an arthroscopic rotator cuff repair. In the Cordts case, the employer asserted the applicant chose not to go ahead with the surgery, and therefore the award of temporary total disability benefits through the date of hearing was not justified. In the Cordts case, the employer had refused to pay for the surgery. The commission stated, in the Cordts case, that the GTC Auto Parts case does not stand for the proposition that an employee loses eligibility for temporary disability because he or she has healed as much as she can without surgery, and desires to undergo the recommended surgery, but is unable or unwilling to pay for it herself. The commission noted, in the Cordts case, that employers are free to dispute liability and withhold payment for medical expense until the issue of causation is resolved, but just as the applicant assumes a risk that she may receive nothing if causation is decided against her, the employer and its insurer assume the risk that they will be liable for all compensation due if causation is decided against them, including compensation in the form of temporary total disability benefits that accrue due to the surgery delay. Also, in the case of Paulin v. Mid States Express, Commission Decision dated April 28, 2005, the commission noted that an insurer cannot deny payment of a surgery, causing the procedure to be delayed, and then assert the applicant has stabilized.

Although Dr. Ahuja issued his WC-16-B in June 2005 stating the applicant continues to be temporarily totally disabled until the date of her surgery, Dr. Ahuja has never indicated the applicant is able to return to work or reached a healing plateau. The only reason for the applicant's failure to continue to treat for her work injury was the fact she could not afford to keep paying for it and the employer and insurer denied treatment expense beginning in July 2004. Based on Dr. Ahuja's assessment and the need for surgery, and given the employer's actions in refusing to pay for the needed treatment, and given the applicant's testimony concerning her ongoing pain and restriction as a result of a work injury, the commission finds the applicant was entitled to temporary total disability benefits from July 11, 2004 through October 25, 2005, as ordered by the administrative law judge.

cc:
Attorney David Topczewski
Attorney James A. Meier

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