JULIO BARRERA, Applicant
GRADE A CONSTRUCTION INC, Employer
ACUITY INSURANCE CO, Insurer
The applicant alleges he is entitled to worker's compensation based on a November 23, 2004 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on July 24, 2006. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and average weekly wage of $447.10 as of the alleged date injury. In dispute were whether the applicant sustained an injury from an accident or disease arising out of his employment with the employer while performing services growing out of and incidental to that employment, the nature and extent of disability from that injury, if any, and the respondent's liability for medical expenses.
The ALJ issued his decision dismissing the application on October 12, 2006. The applicant filed a timely petition for review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Injury and treatment.
The applicant was born in Mexico in 1978 and came to the United States in 2001. He began working for the employer in February or March of 2004 as a painter, primarily applying paint by roller in new houses. His low back did not bother him at the time, and he had not previously seen a doctor for his back at that point.
The applicant hurt his back at work on November 23, 2004, at about 4 p.m. near the end of his shift. At the time, he was using a machine called a "Cat" to move a barrel of paint. A "Cat" is a kind of a dolly, a platform on very low wheels with handles rising up for a worker to use to move the dolly. The applicant was lifting with the Cat -- apparently pulling back on the handles of the dolly after the barrel was on the platform -- when he felt a "pull" in his back. Transcript, page 34, lines 7 to 9.
After the injury, the applicant's back hurt in the left side. He was able to finish moving the barrel, however. Since this was the last thing he was doing for the day, the applicant went home without telling anyone about his injury. Asked by his attorney to point to where his back hurt, the applicant rubbed "just below where one's belt would be on a trouser ... on the left side." Transcript, page 15, lines 8 to 10.
After the injury, the applicant began experiencing pain and numbness in his legs, particularly his left leg. He initially thought his back would be better the next day, but by night time he could not tolerate the pain. He reported the injury the next day to his group leader, Misal, who told the applicant to report his injury to Mike, who was in charge of the general team.
The applicant went to a hospital emergency room that day, and he was referred from there to the Aurora Clinic. An initial assessment from the occupational health services in that clinic dated November 23, 2004, indicates chief complaints of "R[ight] back pain, tailbone, buttocks, leg and R[ight] groin pain." The note contains a description of injury as
Tues. afternoon -- Lifting barrel of paint Lg ? weight. Normally lifts [with] another person. Tilting barrel to get dolly under -- immediately felt sharp pain in back. In back across center lower into coccyx. Radiates to R[ight] buttocks/thigh. Pulsates. [no] numbness/tingling. [no] better Wed. -- went to ER.
There is a typewritten note from Ann Rohrer, NP, which states a chief complaint of low back pain and the history of:
The patient reports that on 11/23/04 in the late afternoon toward the end of his shift he was lifting a large barrel of paint. He does not know the weight of this, but normally he lifts it with another person and it requires him to tilt the barrel onto a dolly. He was tilting the barrel by himself pulling back to get it tipped up onto the dolly when he immediately felt sharp pain in this back. It is mostly across the center of his back and into the coccyx. It also radiates slightly into the right buttocks and thigh. He describes it as a pulsating type of pain. He denies any numbness or tingling. He does not think it is any better since it occurred. He thought that he would just continue to work and that it would get better, but on Wednesday morning the pain had not subsided and he was having difficulty working so he went to ..the emergency room where he was evaluated and treated for a low back strain. He was given a prescription for Flexeril and Vicodin. He has remained off of work as this was written by the emergency room. He has no history of a previous back injury.
On examination, the applicant had some tenderness to deep palpation in the area of the coccyx. The applicant experienced pain bilaterally with the straight leg raising test, mostly in the right lower back and in the coccyx but there was no radiation of pain. Ms. Rohrer's assessment was low back strain.
The applicant returned to the clinic where he saw Sean Moe on December 3, 2003. He reported the applicant was being seen for acute lumbar strain over the left side, with pain over the middle back and lumbar area that has significantly decreased. He told the doctor he still at times had pain over the tailbone into the left groin area. The applicant estimated a 50 percent overall improvement.
On examination by a provider named Sean Moe, the applicant complained of pain with crossing his legs, and with internal rotation of the left hip and palpation over the sciatic notch. On the straight leg raising test, the applicant had pain in the thigh at about 45 degrees. He had a decreased range of motion with forward flexion secondary to pain. Mr. Moe's assessment was an acute lumbar strain, and he suspected left sciatica.
Mr. Moe instructed the applicant to continue using his medication. He set job restrictions including limited standing and walking, with no steps or ladders, and no lifting, carrying, pushing or pulling greater than 10 pounds. The doctor felt physical therapy would be warranted if the applicant was not significantly improved by the next visit.
The applicant returned to the clinic where he was seen by Ms. Rohrer on December 10, 2004. She noted that while the applicant had been released to work on November 30, 2004, he had not actually been into work because of a misunderstanding about his restrictions. The notes state that the applicant had been feeling better but that his main problem was a pain in the tailbone, especially when he sat or bended his knees. The straight leg raising test was negative except for discomfort in the coccyx. Ms. Rohrer's assessment was lumbar strain with sciatica, a 10-pound lifting and carrying restriction, a 20-pound pushing and pulling restriction, and limited ladder and stair climbing.
The applicant returned to Ms. Rohrer on December 15, 2004, following a physical therapy visit, and complaining of increasing problems with pain in the low back and numbness and tingling down the legs. He told Ms. Rohrer that he thought the increased symptoms were caused by his return to work on light duty. The light-duty work required him to repetitively bend over to pick up paint cans from which he scraped paint from the bottoms, as well as do sweeping. He described it as similar to the pain he had had in the past, with shooting pains in the coccyx and down both legs. The applicant complained of some pain on heel and toe walking, and pain in extension, flexion, and twisting on range of motion testing. He complained, too, of pain and toe numbness on the straight leg-raising test.
Ms. Rohrer took the applicant off work for two days, and scheduled a re-examination. On December 17, 2004, the applicant told Ms. Rohrer that his pain in the coccyx area was pretty much the same, but he had less pain in the area of his hamstrings. He again reported pain in the coccyx and hamstring with extreme range of motion, and shooting pain and numbness in the toes on the straight leg raising test. Ms. Rohrer advised the applicant to continue physical therapy, and allowed a return to work with temporary restrictions against bending, twisting, squatting, kneeling, lifting, carrying and pushing.
The applicant returned to the clinic on December 23, 2004, when he saw Theodore Bonner M.D., who recorded a history of an acute onset of pain in the low back with lifting a barrel on November 23, 2004, but with no history of prior back pain. He described the pain as radiating from the low back into the buttocks. He told the doctor he was experiencing shooting pain down both legs, with a sense of weakness, and numbness down his left leg. On examination, the doctor noted pain in the legs on the straight leg raising test, and that the applicant frequently grimaced during the examination.
Dr. Bonner felt an MRI was warranted "because of the severity of the patient's present symptoms and the lack of improvement in the four weeks [in] this pain as well as the diffuse lower extremity symptoms." The doctor added that if the possibility of a surgical lesion were revealed in the MRI, the applicant would be referred to a spine surgeon. Until then, Dr. Bonner referred the applicant to Dr. Vasudevan, a pain specialist, and released him to work with restrictions.
The MRI which was done on December 28, 2004, and it showed "a small far left lateral protrusion-type herniation at L4-5 which mildly narrow[ed] the left neural foramen." There was also mild central canal narrowing at L4-5 and L5-S1 due to developmental narrowing of the spinal canal.
When the applicant returned to Dr. Bonner to discuss the MRI results, the doctor noted the applicant still had pain and numbness radiating down both legs, the left greater than the right. The applicant again described the injury occurring with lifting the barrel and adding that he had no symptoms before that event and that all of his symptoms started thereafter.
On review of the MRI report, Dr. Bonner felt the "small far left lateral protrusion-type herniation at L4-5" was unlikely to be significant. Dr. Bonner again diagnosed a low back strain and continued the applicant's restrictions. He referred the applicant to a physiatrist, Gita Baruah, M.D.
Dr. Baruah first saw the applicant in January 2005. His notes are at exhibit P. His history is
Patient ... injured his back while lifting a barrel of paint, which weighed about 200 lbs. He felt pain in the low back area at the time of the incident. He started having radiating pain to the left leg.
Dr. Baruah noted the recent MRI, and the applicant's current complaints of pain in the tailbone with "some pressure sensation" in his low back as well as pain radiating all the way to his toes and sharp pain and a prickly feeling in the toes of his left foot. He described low back pain at 6 of 10 persistently, and 10 of 10 with increased shooting pain.
The doctor's impression was lumbosacral musculoskeletal strain. Noting that the applicant's MRI findings did not really correlate to his symptoms, the doctor wanted to do a nerve conduction test and EMG, as a prelude to a trigger point injection or an epidural injection.
The EMG test was done on January 12, 2005, and was normal. Dr. Baruah then did trigger point injections, but noted
Patient was laughing throughout the whole procedure, though he complained of pain at the same time. He continues to have symptom magnification.
Moist heat was applied following the injection and patient was observed for 10-15 minutes. He had no difficulty getting off the examination table. However, he was limping when he was leaving the exam room. He had significant pain behaviors. [Emphasis supplied.]
The doctor then wanted the applicant to have ultrasound treatment, but the applicant ended the treatment after only a few minutes, refusing to continue. He asked the doctor repeatedly about his work injury, and how it would affect him. Dr. Baruah continued:
I am not too optimistic about his recovery given his lack of cooperation and participation in therapy, as well as symptom magnification behavior. He should probably undergo an MMPI evaluation to find out about his personality.
The doctor gave him off work the following day, anticipating exaggerated pain complaints. He advised no further diagnostic work ups, but rather a psychological evaluation.
The applicant followed with another physiatrist, Hanna Eskinder, M.D., in early February 2005 while Dr. Baruah was on vacation. Dr. Eskinder diagnosed a lumbosacral musculoskeletal strain, though he, too, reported significant pain behavior on examination and also recommended a psychological evaluation. During the second visit, on February 9, 2005, Dr. Eskinder recommended the applicant to return to work with restrictions until a reevaluation on March 1, 2005.
The applicant then began treating with Henry Rosler, M.D., whom the applicant first saw on February 28, 2005. Dr. Rosler's history again relates the applicant was doing well until November 23, 2004 when he experienced pain in the lower back while trying to move a barrel of paint and pulling the dolly toward himself. The applicant told the doctor his pain persisted, and described symptoms of pain starting in the lower back and radiating to the left lower extremity. He told the doctor that even light duty increased his symptoms.
On examination, the doctor noted a positive straight leg raising test on the left at 45 degrees and hamstring tightness on the left at 60 degrees. The doctor's diagnosis was lumbosacral strain with radiculopathy involving the left L5 nerve root, and a component of left SI joint dysfunction. The doctor wanted the applicant to stop using Methadone (which had been prescribed by Dr. Eskinder) and he recommended various conservative methodologies, including electrical stimulation, ultrasound, and soft tissue mobilization. He allowed a return to work with no lifting over 10 pounds.
During a subsequent visit on March 9, 2005, Dr. Rosler provided a left SI joint injection which did not provide much relief. On examination on March 18, 2005, the doctor noted a "very symptomatic" trigger point which was injected. The doctor reported this trigger point injection provided almost complete relief of symptoms.
On follow-up March 24, 2005, however, the applicant told Dr. Rosler the recent trigger point injection was of no help whatsoever. The applicant continued to complain of lower back pain radiating to the left lower extremity with paresthesias.
In April and May 2005, the applicant treated with Luciana Berceanu, M.D., who strongly recommended an epidural steroid injection to calm down the radicular symptoms. See exhibit D.
On follow up with Dr. Rosler on June 1, 2005, the doctor noted the continuing complaints of pain into the lower back radiating into the left lower extremity, with a positive straight leg raising test on examination. He stated:
The patient ... does have a disc herniation at L4-5 toward the left and this will go along with left L5 radiculopathy. I advised the patient to undergo a lumbar epidural cortisone injection. The patient is temporarily disabled for gainful employment. He will be rechecked after the epidural is completed. To a reasonable degree of medical certainty, the L4-5 disc herniation is result of his work exposure at Grade A Construction on 11/23/04. His symptoms have been consistent since his first visit regarding radiation of the pain into the low lower extremity and specifically to the left big toe that would go along with the L5 radiculopathy that was confirmed by the MRI.
The injection was done on June 7, 2005, by Dr. Heydarpour. The injection caused headaches, and lower back pain radiating into the leg to the big toe persisted.
On June 27, 2005, Dr. Rosler felt the applicant had reached a plateau with conservative treatment, and noted continuing pain seven moths out from the work injury despite treatment with medication and injections. Dr. Rosler suggested surgery might be an option, but otherwise the applicant had reached a plateau with restrictions against lifting over ten pounds, and no bending, squatting, crawling, pushing or pulling, and postural changes as needed. Dr. Rosler also estimated permanent partial disability at 7 percent compared to disability to the body as a whole which might change depending on surgery. See exhibit I.
On August 24, 2005, the applicant saw a neurosurgeon, Dennis Maiman, M.D., evidently on referral from Dr. Rosler. Dr. Maiman reported a history of a 28-year old male who was injured doing repetitive heavy lifting the prior November, with onset of persistent back and leg pain. He noted the applicant's treatment through the treatment with Dr. Rosler.
The applicant told Dr. Maiman that his left leg was weak and numb in what the doctor noted was "a nonradicular pattern." The applicant denied any right leg symptomology. Dr. Maiman described the applicant as being in obvious distress, with a significantly decreased lumbar range of motion. The straight leg-raising test was positive at 40 degrees, and decreased sensation in the L5 and S1 nerve distributions. The doctor wanted to wait until he had seen the imaging scans before making a treatment recommendation.
When the applicant returned to Dr. Maiman on September 15, 2005, the two discussed a "minimally invasive discectomy" procedure to treat his disc herniation at L4-5 Dr. Maiman described the procedure as "using a tube and going through the spine to do a foraminotomy and remove the piece of disc that is herniated." Dr. Maiman could not guaranty success, but the applicant was still anxious to go forward.
The applicant underwent the procedure, on a diagnosis of left L4-5 disc herniation, on September 26, 2005. According to the addendum to the operative note written by Dr. Maiman, the surgery included a left L4 hemilaminotomy with excision of the left L4-5 herniated disc, as well as left L5 foraminotomy using a minimally invasive surgical system.
Simon Salerno, M.D., who assisted Dr. Maiman, wrote in the operative note (at exhibit M) :
... We noticed quite a significant disk bulge. The disc space was incised, and we were able to remove significant amounts of disc, which appeared quite juvenile in nature...
A month out from surgery, Dr. Maiman noted the applicant was having back pain at the site of his surgery, and some residual radicular complaints, but not like he had had pre-surgery. His lumbar range of motion was significantly decreased, and he had mild paravertebral tenderness. When the applicant returned to Dr. Maiman two months later in December 2005, the doctor stated the applicant was not doing as well as he had hoped, and was still complaining of back pain and spasm. On examination, the doctor noted decreased lumbar range of motion with significant paravertebral spasm. Dr. Maiman wanted to do an MRI to check for a recurrent herniated disc.
In January 2006, Dr. Maiman sent the applicant a letter informing him that the disc herniation did not appear to have returned, but that some scar tissue was shown on the MRI. The doctor told him the scar tissue cold not be removed by surgery, but might be reduced or made to shrink by cortisone injection, which the doctor recommended. Exhibit L.
Accordingly, an injection was done by Monika A. Krzesniak-Swinarska, M.D., on February 15, 2006. When he continued to complain of pain into March 2006, she recommended he call Dr. Maiman for a recheck.
The applicant saw Dr. Maiman on March 16, 2006, continuing to complain of back and leg pain and telling the doctor he had not improved. He told the doctor he felt better than he was before the surgery, but still had pain and was not functional. On examination, the doctor noted severe paravertebral spasm, but no evidence of recurrent disc herniation. Dr. Maiman concluded:
I am going to speak to Dr. Swinarska about where to go from here. I wonder whether he should be in formal pain management, and whether a trial of spinal cord stimulation for neuropathic pain would be appropriate.
Exhibit K, Maiman's March 16, 2006 office note.
Dr. Krzesniak-Swinarska's records indicate the applicant underwent physical therapy thereafter. However, he returned to Dr. Krzesniak-Swinarska on April 11, 2006, with an exacerbation of his back pain and left lower extremity, with throbbing pain in the right leg. She noted what she described as non-organic pain. She discontinued therapy at his request, and ordered a repeat MRI to evaluate him for arachnoiditis, noting the January 5, 2006 MRI showed enhancement of the left L5 and S1 nerve roots suggestive of radiculitis. Dr. Krzesniak-Swinarska noted that, pending the results of the MRI, the applicant might be referred for pain management. This appears to be the final treatment note in the record.
2. Expert medical opinion.
At issue is whether the applicant actually injured himself on November 23, 2004, and if he did, how much disability it caused. The parties submitted substantial expert medical opinion on these issues
Dr. Berceanu (who did pre-surgery epidural injections in April and May 2005) opined the work injury caused his disability by aggravating a pre-existing degenerative condition beyond its normal progression. She referred to her treatment notes as to the work exposure -- lifting a barrel at work on November 22, 2004 -- and a diagnosis or description of the disability -- chronic low back pain with left lower extremity radicular symptoms and lumbar degenerative disc disease. She did not give work restrictions, but did indicate she did not expect any permanent disability. See exhibits C, D, and Q.
Dr. Rosler's practitioner's report is at exhibit H. He opined the work injury directly caused the disability. He referred to his notes, which includes the history that the applicant was doing well until November 23, 2004 when he experienced pain in the lower back while trying to move a barrel of paint and pulling the dolly toward himself. Regarding causation, Dr. Rosler's notes also state:
To a reasonable degree of medical certainty, the L4-5 disc herniation is result of his work exposure at Grade A Construction on 11/23/04. His symptoms have been consistent since his first visit regarding radiation of the pain into the low lower extremity and specifically to the left big toe that would go along with the L5 radiculopathy that was confirmed by the MRI.
Further, as set out above, Dr. Rosler opined the applicant reached an end of healing with permanent partial disability at 7 percent compared to permanent total disability due to his L4-5 disc herniation, as of July 27, 2005, assuming he did not have surgery.
The applicant did, of course, have surgery. Thus, the applicant submitted a practitioner's report from his surgeon, Dr. Maiman (exhibit K) as well. He opines a traumatic event on November 23, 2004 directly caused the applicant's disability. Dr. Maiman's practitioner's report refers to his notes which identify the work event or exposure -- doing repetitive heavy lifting, with onset of persistent back and leg pain -- causing the applicant's disability from an L4-5 disc herniation. Dr. Maiman's form report recites that the applicant had permanent partial disability at 5 percent "to date" compared to permanent total disability due to a guarded prognosis due to back pain for which pain management might be necessary. Regarding temporary and permanent work restrictions, Dr. Maiman's note contains an illegible notation.
The employer relies on the opinion of its examiner, David Goodman, M.D., whose most recent report is at exhibit 1. His diagnosis is:
Medically unexplained pain disorder, low back region; strongly suspect symptom and physical impairment simulation.
Dr. Goodman did not think the applicant sustained a traumatic injury at work because there was no objective evidence for any injury and "the prolonged and protracted nature of the complaints is not medically consistent with any physiological injury."
Dr. Goodman described the disc bulge shown in the December 2004 MRI as a nonspecific finding of uncertain clinical significance, noting that Dr. Bonner had opined at the time it was unlikely to be significant. Dr. Goodman described the applicant's clinical presentation as not following any dermatonal pattern1(1) and noted the EMG testing was not consistent with a specific radiculopathy. The doctor added the report of pain in the coccyx, which surfaces particularly in the early medical reports (Dr. Goodman states the applicant's clinical presentation was initially reported as pain in the coccyx), was not medically consistent with a herniated disc at L5.
Dr. Goodman went on to state that the "gross medically inconsistent findings on physical examination that strongly suggest the presence of non-physiological pain disorder." He reported that the familiar Waddell's findings or tests were positive (though he does not specifically identify any findings as such), and stated that inconsistencies in strength testing and gait suggested symptom simulation.
3. Discussion and award.
The commission credits the opinions of Drs. Rosler and Maiman regarding causation. The December 2004 MRI showed the disc herniation. The operative note from Dr. Salerno, who assisted Dr. Maiman, indicates that disc material was protruding on the nerve. Further, pulling back on barrel of paint -- whether it weighed 200 or 400 pounds (2) -- on a dolly seems from a lay view to be a competent mechanism to cause a disc herniation. While the treatment notes do mention coccyx complaints, they are generally mentioned in tandem with, not instead of, the low back and radiating leg complaints.
The commission appreciates that treating physiatrists Baruah and Eskinder noted symptom magnifications in their reports and recommended psychological testing. This supports the opinion of employer-retained Dr. Goodman that the applicant is simulating his complaints. However, the fact remains that the applicant did have surgery. Minimally invasive or no, it is difficult to believe that the applicant would undergo surgery for a simulated condition when Dr. Rosler had already rated some permanent disability from the work injury even before surgery was done.
The commission therefore finds that while moving the barrel on November 23, 2004, the applicant sustained an injury arising out his employment with the employer, while performing services growing out of and incidental to that employment.
The next question is the extent of disability. In general, a worker is entitled to temporary disability while in a "healing period" from the work injury.
Knobbe v. Industrial Comm., 208 Wis. 185, 190 (1932); Larsen. Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). In this case, the applicant has established that he is entitled to temporary total disability as a result of the work injury during two separate healing periods:
(1) from November 23, 2004 (the date of injury) to June 27, 2005 (the date Dr. Rosler rated permanent partial disability assuming the applicant did not undergo surgery), (3) a period of 35 weeks and 1 day. At the weekly rate of $298.07 (two-thirds the average weekly wage of $447.10), compensation for this period equals $10,482.01.
(2) from September 26, 2005 (when he re-entered a healing period upon undergoing the "minimally invasive discectomy" procedure) to at least April 11, 2006 (the date of the applicant's last-documented treatment with Dr. Krzesniak-Swinarska), a period of 35 weeks and one day. At the weekly rate of $298.07 (two-thirds the average weekly wage of $447.10), compensation for this period equals $8,395.54.
The record in this case establishes that the second healing period continued at least until April 11, 2006, but not when the second healing period ended. Dr. Maiman did rate permanent partial disability "to date" at 5 percent in his June 29, 2006 practitioner's report. However, the commission declines to find an end of healing based on that report even though it rated permanent disability which might suggest the disability was no longer temporary and the healing period had ended. In the June 29, 2006 report, Dr. Maiman indicated his last examination was on March 16, 2006; the note from that date indicates the doctor intended to discuss treatment options with Dr. Krzesniak-Swinarska. Indeed, as of Dr. Krzesniak-Swinarska's last note of April 11, 2006, the doctor was still considering active treatment options, including the MRI and possible pain management, to deal with the applicant's ongoing pain complaints. Thus, the commission reads Dr. Maiman's practitioner's report -- and its reference to the permanent partial disability "to date" -- to state the minimum which the applicant is entitled to after he reaches an end of healing following the discectomy procedure, not to actually state an end of healing from the discectomy procedure.
When the applicant reaches an end of healing from the discectomy procedure performed by Dr. Maiman, he will indeed be entitled to permanent partial disability of at least five percent compared to disability to the body as a whole. The commission therefore shall reserve jurisdiction to permit a determination whether the applicant remained in a healing period (and is thus entitled to additional temporary disability) after April 11, 2006, as well as the extent of permanent disability beyond the minimum rating of five percent to the body as a whole for the discectomy procedure performed by Dr. Maiman. See Wis. Admin. Code, § DWD 80.32(11).
Under the commission's understanding of the department's practice under Wis. Stat. § 102.32(6)(e), it awards permanent partial disability compensation under the minimum disability rating in Wis. Admin. Code § 80.32(11) for the time in between the applicant's two healing periods. This "fill-in" period is 13 weeks; at the weekly rate of $232.00 (the statutory minimum for injuries occurring in 2004), the accrued permanent partial disability compensation equals $3,016. When the applicant's end of healing is determined, the remaining 37 weeks of the permanent partial disability attributable to the administrative code minimum rating of 5 percent shall begin to accrue as of that date.
In all, the disability compensation awarded under this order equals $21,893.56. The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 on the amount awarded, or $4,378.71. The applicant changed attorneys on appeal; if the applicant's former and current counsel cannot agree to a division of the fee, either may apply to the department for a determination of the matter under Wis. Admin. Code § DWD 80.43(6). In addition, the applicant's former counsel incurred costs of $351.62 which shall be deducted from the applicant's award and paid to the applicant's former counsel within 30 days. The fee shall also be deducted from the award pending its eventual division between the applicant's former and current counsel. The remainder, $17,163.22, shall be paid to the applicant within 30 days.
As a result of the work injury, the applicant incurred reasonable and necessary medical treatment expense to cure and relieve the effects of the work injury documented in exhibit S as follows: from Pain Management Center of WI, SC, $1,939, all of which is outstanding; from EMPI (TENS unit), $286.97, all of which is outstanding; and from Aurora Health Care, $391.04, all of which is outstanding.
Exhibit S also indicates the applicant incurred substantial expenses from MCW Physicians and Froedtert Hospital which have been written off. In the past, the commission has declined to require insurers to pay medical expenses that have been written off by the provider, when there is no indication that the write-off was withdrawn and no explanation is given for the write-off. See Darlene R. Hoefs v. Midway Hotel and Wausau Underwriters, WC Claim No. 1999-029146 (LIRC October 21, 2003); and Richard Pospichal v. Ashley Furniture and Employers Insurance of Wausau, WC Claim No. 2002-022704 (LIRC November 30, 2004). In these decisions, the commission explained that absent special circumstances, medical charges reflecting write-offs represent the "reasonable expense" of treatment for which liability accrues under Wis. Stat. § 102.42(1). See: Gerald Springer v. United Properties, WC claim No. 1999-044473 (LIRC, January 14, 2005).
On the other hand, the Hoefs and Pospichal cases suggest that a different result may be reached when the write-off -- instead of reflecting a discounted rate -- is made because the provider regards the expense as uncollectible as might occur if the respondent had refused payment and the injured worker declares bankruptcy. See also Jeannette Budewitz v. Menasha Corp Watertown, WC claim no. 1999-023751 (LIRC, January 9, 2001). On the record as it stands, the commission cannot tell for certain exactly why MCW Physicians and Froedtert Hospital wrote off such large portions of their bills. Accordingly, jurisdiction shall be retained as to permit an order regarding this portion of the expenses as well, assuming the parties do not agree to a resolution of the issue on their own.
In sum, this order shall be left interlocutory to permit further orders and awards regarding the extent of the applicant's healing period after April 11, 2006; the extent of the applicant's permanent disability beyond the code minimum rating of 5 percent to the body as a whole; the payment of medical expense bills from MCW Physicians and Froedtert Hospital documented in exhibit S; and the division of the attorney fee. In addition, because Drs. Maiman and Krzesniak-Swinarska credibly opined that further treatment is warranted, this order shall also be allowed to permit orders and awards regarding any additional temporary disability, permanent disability, or medical expense that might arise in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Julio Barrera, Seventeen thousand one hundred sixty-three dollars and twenty-two cents ($17,163.22) in disability compensation.
2. To the applicant's former attorney, Scott R. Winker, Three hundred fifty-one dollars and sixty-two cents ($351.62) for costs.
3. To the Pain Management Center of WI, SC, One thousand nine hundred thirty-nine dollars ($1,939) in medical treatment expense.
4. To EMPI (TENS unit), Two hundred eighty-six dollars and ninety-seven cents ($286.97) in medical treatment expense.
5. To Aurora Health Care, Three hundred ninety-one dollars and four cents ($391.04) in medical treatment expense.
Within 30 days of receipt of a fee agreement between the applicant's current counsel (Narciso Alemán) and his former counsel (Scott R. Winkler) or receipt of an order from the department dividing the fee, whichever occurs first, the employer and the insurer shall pay the sum of ($4,378.71), divided between Mr. Winkler and Mr. Alemán, as provided in that agreement or order.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed July 19, 2007
barreju . wrr : 101 : 8 ND § 5.3 § 5.6 §
5.11 § 5.46 § 5.50
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission discussed witness credibility and demeanor with the presiding ALJ. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617 (Ct. App. 1998). He noted the difficulty in gauging credibility of a witness who testifies through an interpreter. He further stated his decision was not actually based on his impression of witness credibility, but rather on his review of the medical records. Accordingly, he concluded that if the applicant experienced any injury in the work event of November 23, 2004, it was relatively minor. However, the commission took a different view of the medical records and the reports of the medical experts, as outlined above. See: Hermax, at 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Narcisco L. Alemán
Attorney Scott R. Winkler
Attorney Scott Wade
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