TIMOTHY CASEY, Applicant

MIRON CONSTRUCTION CO INC, Employer

ST PAUL FIRE & MARINE INS CO, 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 July 31, 2007
caseyti . wsd : 175 : 8  ND § 5.46  § 8.6

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant's work injury on August 2, 2004, aggravated, accelerated and precipitated his preexisting cervical degenerative condition beyond normal progression, leading to the need for cervical fusion surgery, temporary total disability, and 23 percent permanent partial disability to the body as a whole. The employer states the administrative law judge should have credited the opinion of Dr. Barron, who examined the applicant on behalf of the employer. Dr. Barron opined in his report dated January 30, 2007, the applicant's cervical fusion surgery on February 22, 2005, was not reasonably necessary to address any condition related to the work incident on August 2, 2004. Dr. Barron opined that the applicant suffered only a cervical sprain on August 2, 2004, which would never require surgery. Dr. Barron noted the applicant had no radicular symptoms, and because of the lack of radicular symptoms, the findings on the MRI scan were totally preexisting, and not precipitated or aggravated by the work incident.

However, the applicant testified that he suffered a cervical injury when he was struck by a metal plate weighing 10 to 12 pounds, which inadvertently was kicked off of a wall by a co-worker. The applicant testified he had the immediate onset of neck pain. The applicant testified that he had some tingling down his arms subsequent to the work incident, and a little weakness in his hands, elbows, and shoulders. Dr. Ahuja stated in his notes dated October 14, 2004, the applicant reported a work incident when he was hit in the head with a metal plate, and he complains of constant stiffness in the neck, and the pain will then travel down his left side under his shoulder blade, but denies arm pain. The applicant testified that he did not have any cervical pain or need for treatment prior to the work incident in August 2004.

Dr. Ahuja noted that the applicant's MRI showed a C6-7 disc herniation, as well as a cervical sprain at C5-6. Dr. Ahuja opined in his WC-16-B dated April 26, 2006, that the applicant's work incident aggravated, accelerated and precipitated his preexisting degenerative condition beyond normal progression, leading to the need for surgery, and 23 percent permanent partial disability to the body as a whole.

The commission credits Dr. Ahuja's assessment. The fact that the applicant did not report ongoing pain or numbness in his extremities does not undercut Dr. Ahuja's assessment. Although the applicant had preexisting degenerative cervical disc disease, there is no evidence that the applicant's condition was symptomatic or that he needed treatment prior to August 2, 2004, when he was hit on the head in a traumatic incident at work. The applicant had the immediate onset of neck symptoms, which continued throughout conservative treatment, which did not resolve leading to the need for surgery. The applicant's MRI revealed disc herniation and breakage following the work incident. The commission finds that based on the applicant's testimony of the nature and onset of his cervical problems, following the work incident on August 2, 2004, and based on Dr. Ahuja's reports, the evidence was sufficient to establish that the work incident on August 2, 2004, aggravated, precipitated and accelerated his preexisting degenerative cervical disc disease, resulting in the need for fusion surgery and subsequent permanent disability, as well as temporary disability and medical expense.

The employer also contends that the administrative law judge erred in bifurcating the hearing and reserving medical expense issues for a later proceeding. The employer states that the applicant did not timely submit a list of complete medical expenses but instead submitted exhibit E at the hearing, which had not previously been provided to the employer. The employer states that the initial submission had evidenced an unpaid balance of slightly more than $34,000, and the listing on exhibit E at the hearing showed $73,000 in unpaid bills.

The employer points to Wis. Stat. § 102.17(8) which provides that the department may not admit into evidence any information relating to medical expenses, and incidentals of compensation under Wis. Stat. § 102.42 claimed by an injured employee, if the injured employee failed to file with the department and serve on all parties at least 15 days before the date of the hearing, an itemized statement of the medical expenses and incidental compensation. The employer states that failing to hold the applicant and respondents to the same standard in preparation for a hearing, to meet the 15-day deadline is clearly a violation of the respondents' right to due process.

However, Wis. Stat. § 102.17(8) does not provide that the applicant's medical expense claim if not submitted at least 15 days prior to the date of the hearing, must be denied. Rather, the note to Wis. Stat. § 102.17(8) simply states that this provision is required so the department and other parties know what is being claimed. Wis. Stat. § 102.17(8) is a procedural provision and was not intended or written to provide for a denial of a substantive claim for medical expense.

Pursuant to Wis. Stat. § 102.17(1)(a) the administrative law judge had the authority to bifurcate the hearing, and reserve testimony and evidence on the issue of medical expenses in this case. The employer has not been denied due process and is entitled to present evidence concerning the reasonableness and necessity of the medical expense, as well as to cross-examine the applicant and the applicant's witnesses, and to present evidence on its behalf. The applicant had appropriately given notice of $34,000 in medical expense 15 days prior to the hearing, and the administrative law judge reserved jurisdiction on resolving the issue as related to these medical expenses, as well as the additional medical expenses presented at the hearing. The commission finds that the administrative law judge acted appropriately in reserving jurisdiction in this case on the medical expense issue, and both parties may be heard at a subsequent hearing concerning the appropriateness of these medical expenses.

In addition, the employer contends that the administrative law judge erred in ordering the employer and insurance carrier to reimburse the Wisconsin Laborer's Health Fund in the amount of $10,477.93 in medical expense. The employer states that based upon the fact that the administrative law judge had excluded medical expense from consideration at the hearing, the applicant offered no proof of medical expenses paid by the union or their relationship to the August 2, 2004 injury. However, a review of the transcript of the hearing indicates that the employer and insurer stipulated with the applicant to the payment of these medical expenses, and reimbursement to the Wisconsin Laborer's Health Fund should the applicant recover in this case. The employer's attorney indicated that it did not matter to him whether the health and welfare fund was reimbursed for the medical expense, and that it did not increase his client's exposure, and it could go to whomever the department deems worthy. In addition, the employer's attorney had no objection to entering into evidence that portion of the applicant's exhibit E of the amount owed to the Laborer's Fund and the related medical expense. Based on the stipulation of the parties, the evidence does not indicate that the administrative law judge erred in ordering the employer and its insurer to reimburse the Wisconsin Laborer's Health Fund for certain medical expenses in this case.

cc:
Attorney Leonard W. Schulz
Attorney John A. Griner IV

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