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

CHERYL GABRIEL, Applicant

NEW LONDON FAMILY MEDICAL CENTER, Employer

EMPLOYERS INS CO OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-010687


In October 2006, the applicant filed an application seeking, among other things, compensation for temporary total disability ongoing from September 23, 2005 and for medical treatment expenses. Administrative Law Judge (ALJ) Thomas M. Landowski of the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 29, 2007, with a close of record on June 12, 2007. Prior to the hearing, the employer and its insurer (respondent) conceded jurisdictional facts and an average weekly wage of $662.67. Other relevant procedural facts are set out below.

On June 15, 2007, ALJ Landowski issued an interlocutory order awarding the medical expenses claimed, but dismissing the claim for temporary total disability. The applicant filed a timely petition for review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Posture.

The applicant is a registered nurse who contracted the hepatitis C virus from her work, primarily from assisting in women in childbirth. This matter was initially heard by ALJ Edward W.J. Falkner, who concluded the applicant had not established a compensable injury and dismissed the claim entirely. By order dated May 12, 2006, the commission reversed ALJ Falkner's decision, found that the applicant had established a compensable injury, and awarded temporary total disability to September 22, 2005 (the last day of hearing before ALJ Falkner's decision.)

In its prior decision, the commission found, with respect to the applicant's entitlement to temporary total disability:

The next questions are the extent of disability and the respondent's liability for medical expenses. The applicant's treating doctor, Dr. Sokhi, stated that Hepatitis C is curable in 40 to 50 percent of the cases, but that the applicant was still disabled as of February 25, 2005. Exhibit A. In a letter dated June 16, 2005, Dr. Sokhi's office said the applicant's "bloodwork drawn on May 31, 2005, came back normal with HCV RNA quantitative normal." Another test was set for the end of July 2005. Exhibit 5. The applicant herself testified that she was still treating, and that more blood work had been ordered for late in September 2005, or after the hearing. Transcript, page 47. As of the date of hearing, the applicant had only recently finished a series of interferon injections, with the last one only two weeks before the hearing. Transcript, page 27. The commission is satisfied that the applicant remained in a healing period to the date of hearing, that she was totally disabled from employment to that point, and that the medical expenses she incurred to treat her Hepatitis C condition were necessary to cure and relieve the effects of her Hepatitis C condition.

...

The applicant was therefore entitled to compensation for temporary total disability from December 31, 2003 to the date of hearing on September 22, 2005,...

Gabriel v. New London Medical Center, WC claim no. 2005-10687 (LIRC, May 12, 2006), pages 12-13.

The respondent paid temporary total disability to September 22, 2005, according to the commission's order. However, it denied liability for continuing temporary disability after that date.

The applicant then filed an application seeking compensation for temporary total disability beginning on September 23, 2005, and for certain medical expenses.(1) This second claim was heard by ALJ Landowski. ALJ Landowski found the claimed medical expenses to be compensable, but denied the applicant's claim for additional temporary total disability.

The applicant has petitioned for review of ALJ Landowski's decision, seeking payment of the total disability from September 23, 2005 to January 29, 2007 (the date of the hearing before ALJ Landowski.) The respondent did not cross-petition for review of the medical expense issue.

2. Physical and medical symptoms from the work injury.

The ALJ found that the applicant's psychological, dental, and other symptoms at issue were caused by her work injury, the work-related hepatitis C infection. As noted above, the respondent has not cross-petitioned on any finding made by ALJ Landowski. Consequently, the commission substantially restates the ALJ's findings on the issue of the cause of the applicant's symptoms as follows:

Prior to contracting the hepatitis C virus, the applicant had several episodes of depression in the 1970s and 1990s, but all were temporary and never required prolonged psychiatric care or counseling. According to the medical records, the applicant's last bout of depression prior to being diagnosed with the hepatitis C virus was in 1997.

At about the same time the applicant's hepatitis C symptoms were developing in December 2003, the applicant began treating for depression, and in July 2003 she was prescribed Prozac. She had been on antidepressant, psychotropic medication ever since. In addition, she received psychotherapy from January 26, 2005 until sometime in late 2005. She was still treating with Steven Klein, Ph.D, a psychologist, at the time of the second hearing. It was undisputed that the applicant currently suffers from depression.

Dr. Klein opined on September 28, 2006 that there is a substantial relationship between applicant's depression and her hepatitis C illness. (Exhibit Q) On December 22, 2006, Donn D. Fuhrmann, M.D., stated it more directly. "I do believe that this is all work-related and that she is so anxious and depressed about her hepatitis that there is a major problem here." (Exhibit U) Even Dr. Biehl, the respondents' independent medical examiner, admitted that applicant's depressive symptoms were "partially related" to the hepatitis C virus infection. (Exhibit 17) He elaborated as follows:

"I cannot, however, dismiss the hepatitis C and treatment with interferon as irrelevant, in that the infection, treatment, and the fact of having a chronic potentially life-threatening condition, can result in depressive symptoms. However the majority of her depressive symptoms, in my opinion, are not related to the hepatitis C." [Emphasis added]

On the question of whether applicant failed to establish the requisite degree of causal connection between the hepatitis C virus infection and her depression, applicant did not have to prove her depression was caused "solely" by the hepatitis C virus or that the "majority" of her depressive symptoms were related to the hepatitis C virus. So long as a claimant can demonstrate that there is a substantial causal relationship between her compensable physical injuries (hepatitis C virus infection) and her mental disorder (depression), both are compensable. Jackai Szuhai v. County of Racine, WC Claim No. 2004-004382 (LIRC Sept. 29, 2006); Cf. Lange v. LIRC, 215 Wis. 2d 561, 568, 573 N.W.2d 856 (Ct. App. 1997). Given that standard, and the opinions of the medical experts set out above, the commission finds that the applicant's current bout with depression was caused by her hepatitis C virus infection.

Following the applicant's interferon treatment for her hepatitis C condition, she developed cervical (root surface) cavities. Her dentist opined that these cavities were likely caused by zerostomia (dry mouth), a major side effect of interferon. On the other hand, respondents' independent medical examiner, Dr. Wagner, opined: "Since interferon has not been associated with zerostomia, it is my opinion that Ms. Gabriel's root surface cavities are not caused by medication she has taken for her hepatitis C condition." [Emphasis added]

The Physicians' Desk Reference (58th ed. 2004) and Exhibit EE reveal that dry mouth is an adverse reaction to interferon. Consequently, like the ALJ, the commission rejects Dr. Wagner's opinion and adopts that of the applicant's dentist. The commission therefore finds that applicant's cavities are a compensable side effect of her treatment for her work-related hepatitis C infection.

In addition to depression and her dental condition, the applicant claims that her work injury caused the following conditions as well: anxiety; somatization; fibromyalgia; nausea and vomiting; diarrhea; thigh, hip and joint pain; poor concentration and memory; fatigue; headaches; insomnia; gastritis, GERD and heartburn; dry mouth and eyes; arthralgias and myalgias. Relying upon the opinion of Dr. Wagner, its retained examiner, the respondents generally denied liability for all of applicant's current symptoms except some unspecified symptoms secondary to interferon therapy. However, the evidence overwhelmingly established that the applicant's current symptoms and conditions set out above were either (1) directly caused by applicant's hepatitis C virus infection, her depression, or the medication she takes to treat these industrial illnesses, or (2) are preexisting conditions that have been exacerbated by her industrial illnesses, or the treatment of those illnesses.

3. Temporary total disability.

a. Facts.

The main issue before the commission is whether the applicant is entitled to temporary disability after September 22, 2005. As the ALJ and the applicant point out, in its initial decision, the commission found that the applicant quit her job due to her symptoms in December 2003. Since then, the applicant has not worked elsewhere. She applied for reemployment with the employer in the fall of 2004 (Exhibit CC), but the employer declined to return her to work.

The applicant then filed the hearing application underlying her current claim for additional temporary total disability, which was served on the respondent on October 18, 2006. By letter dated November 10, 2006, the employer offered the applicant work as a registered nurse at 0.6 FTE,(2) which the applicant testified was three eight hour shifts. The applicant declined to accept that offer of reemployment, testifying that her doctor had told her at that point that she could no longer work (see Dr. Klein's January 2007 report discussed below and Fuhrmann questionnaire dated January 7, 2007, Exhibit X.)

As set out above, the applicant's compensable hepatitis C virus has resulted in numerous physical symptoms and conditions and in depression, for which the applicant claims temporary total disability. Her treatment for the conditions is set out in the medical records introduced at the hearing before ALJ Landowski.

Exhibit U contains a treatment note from Dr. Fuhrmann, the applicant's family doctor, dated November 11, 2005. Dr. Fuhrmann noted the applicant came for a recheck of her fatigue and depression, and was having pain in her leg and hip. She told the doctor she wanted to see a hepatologist because she was frustrated with her gastroenterologist, and he recommended a psychiatric consultation as well because she was still struggling with depression.

Exhibit 22 includes a note dated December 16, 2005, from Dr. Massoud, who evaluated the applicant on referral from Dr. Fuhrmann for chronic hepatitis. His note indicates a diagnosis of hepatitis in February 2004, treatment with interferon only for 72 weeks as she could not tolerate the Ribavirus. She had an initial response with an undetectable virus, but then relapsed. He noted she had symptoms of fatigue, but no symptoms of liver decompensations. Dr. Massoud concluded the applicant "does not need treatment at this point."

Subsequent treatment notes include the results of a blood test done in late February-early March 2006.

The applicant again saw Dr. Fuhrmann on March 29, 2006, complaining of a severe fungus infection on her fingernail. She reported she had not been feeling badly and that her liver had been doing well. He recommended a particular medicine to treat the fungus, rejecting a couple of others because of a high risk of liver complication.

The applicant returned to Dr. Fuhrmann for a follow-up of her chronic hepatitis C on June 15, 2006. He noted she continued to complain of nausea, fatigue, and just not feeling well. He did note onychomychosis of her fingers (3) for which he referred her to a dermatologist.

The applicant saw an anesthesiologist, Paul T. Hoell, M.D., on August 16, 2006. Dr. Hoell noted he was seeing the applicant for reevaluation of systemic myalgias, which he associated with her interferon treatment. She told the doctor she felt fatigued; for example, she had to rest for an hour after peeling a potato. He recommended she continue taking Vicoprofen, a medication he had apparently recommended earlier. Exhibit T.

The applicant saw Dr. Klein, the psychologist, on September 28, 2006. He noted the applicant was in good health until 2000 when she began experience fatigue and concentration problems, followed by a diagnosis of hepatitis C in 2004. He noted prior instances of depression which were only brief, responding well to medication. He reported that

Currently, [the applicant] feels tired, weak, and fatigued. She continues to have problems with attention span, concentration, and memory. She previously had suicidal thoughts, but none with the current meds. Sleep is disturbed, with frequent awakenings and difficulty returning to sleep. She worries about and focuses on her weight, with a distorted body image, feeling like she is fat, when she obviously is not. There is a loss of joy and pleasure in most activities, social withdrawal, and feelings of pessimism and negativity regarding her future. Her self-esteem is low and she spends much time on the computer researching Hepatitis C... She is able to do household chores if she paces herself.

The patient has been seeing therapist, Inez Trantow, about once every three weeks. She finds therapy a safe place to discuss personal feelings, but she has not found much improvement in her condition with therapy.

Exhibit Q. Dr. Klein's diagnosis was major depression, with a fair to poor prognosis.

The applicant saw Dr. Fuhrmann again on October 10, 2006. He again noted the visit for follow-up of chronic hepatitis, noting the applicant had been very fatigued, more tired and depressed. Stating a diagnosis of chronic hepatitis and depression, the doctor indicated he had referred her to see a counselor, Dr. Klein, to help her with her depression.

The applicant then saw Lisa Cervantes, PAC, at the UW Health Hepatology service on consultation for her chronic hepatitis C condition. Exhibit V. Ms. Cervantes noted treatment with interferon from March 2004 to September 2005. The applicant told Ms. Cervantes she had low energy, insomnia, dry mouth and frequent low grade fevers. She complained of arthralgias and myalgias, and poor memory and concentration. She also complained of depression and headache.

Ms. Cervantes and the applicant discussed her treatment with interferon, noting that she had become quite ill on ribavirin, but stayed on the interferon because she felt she responded well to it. Ms. Cervantes

Told the patient that we currently did not have any new therapy available, and with her rather mild fibrosis we should probably wait until new medication that could be better tolerated comes along. I told the patient that we are hoping to have some clinical trials available in 2007 and that I would pass her name along to one of our research coordinators.

The applicant returned to Dr. Fuhrmann on December 22, 2006. She told Dr. Fuhrmann that she was just not well, that she was anxious and nervous, and that she could not afford to see Dr. Klein. Dr. Fuhrmann's diagnostic impression was chronic hepatitis, depression and anxiety, and he recommended she talk to her lawyer about getting coverage for her psychological condition as he did not doubt it was related to her hepatitis condition. Indeed, he wrote a prescription stating: "Must see psychiatrist for work related hepatitis associated depression and anxiety."

The applicant saw Dr. Klein again on January 9, 2007. In his note for the later date (about three weeks before the hearing), the doctor states:

Since she was last seen in September, her Prozac was discontinued and Wellbutrin was substituted. She was also started on clonzepam to control anxiety and panic. This medication change did not produce any significant improvements. Ms. Gabriel also terminated her psychotherapy with Inez Trantow, stating that she did not find it to be helpful. No other changes to her mental health treatment were reported.

...

Depressive symptoms are largely unchanged. He (sic) still feels tired, weak, and fatigued, with a low energy level. There is a loss of joy and pleasure and fun in all activities. Ms. Gabriel often feels hopeless and pessimistic regarding the future, due to her Hepatitis C. She has occasional suicidal thoughts, but no attempts and no plan. She naps during the day and still feels tired. She makes an effort to eat even though she is not hungry.

Diagnosis and prognosis are unchanged since my last note dated 9-26-06. I believe that she should try counseling with a different therapist. She is still not able to return to work as an R.N....

On January 8, 2007, the applicant returned to Ms. Cervantes, who noted the possibility of attempting treatment with pegylated interferon and ribavirin which the applicant was receptive to. Exhibit BB. Indeed, the applicant began this treatment after the hearing before ALJ Landowski, apparently in April 2007.

Both sides offer expert medical opinion on the question of whether the applicant is temporarily disabled. The applicant offers the opinion of Dr. Hoell, the anesthesiologist who saw the for her systemic myalgias. Exhibit O. He opined that, as of August 16, 2007, the applicant had not reached all the improvement that was likely to occur as result of treatment and convalescence for her hepatitis C virus infection, and that she continued to suffer symptoms and some disability.

Family doctor Fuhrmann offered the same opinion as Dr. Hoell. Exhibit P. In addition, Dr. Fuhrmann indicated the applicant continued to remain disabled from work as of December 22, 2006. See Exhibit X.

In his January 9, 2007 report, Dr. Klein concluded that in addition to the fact the applicant was not able to return to work,

End of healing is not yet reached, as Ms. Gabriel is going to be attempting a new round of treatment for her Hepatitis C and, if successful, may lead to an improvement in her psychiatric symptoms.

Exhibit Y.

The respondent relies on the reports of two examining doctors, Mark Biel, M.D., a psychiatrist, and David Wagner, M.D., an infectious disease consultant.

Dr. Wagner's initial opinion regarding physical disability is at Exhibit 18, dated August 18, 2006. Regarding an end of healing, he states:

[The applicant], as outlined above, initially had an undetectable level of hepatitis C virus which more recently has become detectable. She is, therefore, in the category of relapse of her hepatitis C infection. She has undergone standard treatment and had improvement, and, therefore, it is reasonable to state that she has reached a healing plateau at this time. However, since she has an upcoming evaluation, possibly involving a repeat liver biopsy, it is possible that additional therapy may be considered depending on the results of this evaluation.

Pending the result of the liver biopsy, however, the doctor saw no indication for further specific Hepatitis C treatment. Regarding her ability to work, the doctor noted

it would appear that work in any capacity would not be contraindicated. In my opinion, there is no reason for Ms. Gabriel to have work restriction as it relates to her HCV infection. Other factors such as underlying depression and/or fibromyalgia may be impacting her work status.

In a follow-up report dated September 20, 2006 (Exhibit 19), the doctor added that the applicant's hepatitis C had not decompensated, meaning she did not have cirrhosis or liver failure, but in fact her liver function tests were within normal limits and the liver biopsy showed only stage I fibrotic changes. His opinion to a reasonable degree of medical probability, then, was that that the preponderance of the applicant's symptoms related to diagnoses other than hepatitis C, such as anxiety, fibromyalgia and depression. He did acknowledge, however, symptoms from the interferon she took for the hepatitis C.

Dr. Biel's opinion regarding psychological disability, dated August 18, 2006, is at Exhibit 17. He anticipated a maximum improvement from the psychological condition--the applicant's depressive episode--within six months. He added:

Depressive symptoms, only partially related to the hepatitis C and subsequent treatment, are not preventing Ms. Gabriel from some type of employment.

Exhibit 17, page 11.


b. Discussion.

The issue here is the extent of temporary disability. Regarding the healing period--whose end generally sets the end of temporary disability--the supreme court has said:

"The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit."

Knobbe v. Industrial Commission, 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).

Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960), emphasized that the end of a healing period is not determined simply by finding the point at which a condition becomes stationary, or when it is apparent the condition will get no better or worse. Rather, the Knobbe definition of a healing period is qualified by the additional conditions that the injured worker still be submitting to treatment and convalescence, and that the disability be of a temporary nature. The court added:

"An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability..."

Larsen Co., 9 Wis. 2d at 386. The Larsen Co. court went on to say that if the record before the commission "indicates that a definite determination cannot then be made that the employee will not sustain a greater percentage of disability in the future" the commission should reserve jurisdiction, but not continue to pay temporary disability until the maximum amount of permanent partial disability that may occur in the future could be determined. Id., at 9 Wis. 392-93.

The ALJ found the applicant had reached an end of healing with respect to both the physical and psychological aspects of the hepatitis C condition by September 22, 2005. The ALJ believed that, after the initial round of interferon treatment ended in September 2005, the applicant's physical condition had essentially stabilized. He found she was not actively treating between September 2005 and January 2007, but simply following with her doctors who monitored her situation. While further improvement might be possible with more treatment, because the applicant was not actively treating and her condition had stabilized, the ALJ concluded she was no longer in a healing period.

The commission agrees that a worker who has stopped treating and whose condition is stable ordinarily should not remain indefinitely in a healing period simply because of the possibility that his or her condition might improve upon resuming treatment. Analytically, this situation is the converse of the situation in Larsen, where the court observed that the fact that the applicant might have increased permanent disability with more surgery did not mean that the healing period continues indefinitely. While such a worker may continue to have disabling symptoms, these are permanent residuals of his condition and do not mean he is continuing to heal.(4)

However, in this case, the respondent's retained medical expert, Dr. Wagner, stated in his August 18, 2006, report that it was "reasonable to say she has reached a healing plateau at this time." Dr. Wagner does not suggest that the applicant had previously reached an end of healing with the end of interferon treatment in September 2005 or that her condition had immediately stabilized when those treatments ended. Rather, the commission reads Dr. Wagner's opinion to provide proof that the applicant's condition did not stabilize--that is, that there was continued improvement as a result of her convalescence after the interferon treatment ended--until August 18, 2006.

On the other hand, the commission cannot conclude from the opinions of the treating doctors alone that the applicant was continuing to heal--that her condition had not stabilized--after August 18, 2006. Rather, in light of the treatment records do not establish any real change in the applicant's condition after that date, the commission reads their opinions to establish only that future treatment after that date likely would benefit her condition.

What of the psychological condition which the commission has concluded was the result of the applicant's hepatitis C condition? The commission appreciates that both the applicant's treating psychologist, Dr. Klein, and the psychologist retained by the employer, Dr. Biel, stated that the applicant had not reached an end of healing. However, treating doctor Klein qualified his opinion as follows:

End of healing is not yet reached, as Ms. Gabriel is going to be attempting a new round of treatment for her Hepatitis C and, if successful, may lead to an improvement in her psychiatric symptoms.

In other words, Dr. Klein stated her psychological condition might improve if she resumed treatment for her physical condition and was successful in reducing her symptoms. Again, this is not the same as saying she continued to experience healing with respect to her psychological condition, but only that she might resume psychological healing in the future with additional medical treatment. Dr. Klein's opinion does not support continued payment after August 18, 2006 on the theory a worker is in a healing period.

The respondent's psychological expert, Dr. Biel, opined in his August 18, 2006 report that the applicant would reach the point of maximum improvement in six months, and does not condition it on resumed interferon or similar treatment. However, Dr. Biel suggests that the applicant psychological condition does not actually affect her ability to work. That is, while the applicant may be depressed, that is not preventing her from working and does not support setting restrictions--it is a condition without vocational effect. Thus, Dr. Biel's opinion does not support an award of additional temporary disability.

In short, the commission concludes that the applicant reached an end of healing for her psychological condition on the same day she reached an end of healing with respect to the physical effects of the hepatitis C infection, August 18, 2006.(5)

4. Award

Based upon the foregoing, the applicant is entitled to temporary total disability for the period from September 23, 2005 to August 18, 2006, a period of 47 weeks. Based on information submitted with Exhibits DD and GG, the weekly temporary total disability rate, after taking into account social security reverse offset, is $320.63. The total amount due in temporary total disability under this order, then is $16,069.61.

The applicant's attorney is entitled to fees set at 20 percent of the award under Wis. Stat. § 102.26, or $3,103.92. Pursuant to Wis. Stat. § 102.44(5)(a), the fees are not offset from the award, but paid from the reverse offset savings.(6)

There is no dispute concerning the medical expenses awarded by the ALJ, so his findings on that issue are set forth without substantive modification. With regard to the medical expenses listed on Exhibits W, Z and AA, the commission finds that all of the treatment expenses were incurred for treatment reasonably required to either cure and relieve applicant from the effects of her hepatitis C virus infection or to prevent further deterioration in her condition or to maintain the existing status of her condition. Consequently, the respondents shall pay the following healthcare providers the amounts listed below:

 

HEALTHCARE PROVIDER

AMOUNT

   

Charles C. Loberg, DDS

$608.81

New London Family Medical Center

 241.09

ThedaCare Physicians

 716.00

UW Hospital and Clinics

 93.60

UW Physician Billing

 303.00

Professional Pharmacy Associates

 84.00

The respondent shall also reimburse the applicant in the amount of $669.79 for out-of-pocket medical expenses. Pursuant to Wis. Stat. § 102.30(7), the respondent shall also reimburse United Healthcare Insurance Company in the amount of $547.85, and MetLife Dental Claims in the amount of $1,625.77, for medical expenses paid.

Finally, with regard to the applicant's mileage claim, the commission finds that applicant reasonably traveled 794 miles to receive the aforementioned treatment. Consequently, respondents shall reimburse applicant in the amount of $337.45 (794 mile x $0.425) for mileage expense.

The record indicates that the applicant may need continuing treatment and has, or may have, entered a renewed period of healing after the date of the hearing before ALJ Landowski. See applicant's Exhibit FF and respondent's Exhibit 25. Like the ALJ, the commission makes no findings on this point, other than to note that it supports a reservation of jurisdiction. In addition, of course, a potential claim for permanent disability remains. Consequently, this order shall be left interlocutory to permit awards for permanent disability, future periods of temporary disability and future medical expenses.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Cheryl A. Gabriel, Fifteen thousand sixty-nine dollars and sixty-one cents ($15,069.61) in disability compensation.
2. To the applicant's attorney, John B. Edmonson, Three thousand thirteen dollars and ninety-two cents ($3,013.92) in fees.
3. To Charles C. Loberg, DDS, Six hundred eight dollars and eighty-one cents ($608.81) in medical treatment expense.
4. To New London Family Medical Center, Two hundred forty-one dollars and nine cents ($241.09) in medical treatment expense.
5. To ThedaCare Physicians, Seven hundred sixteen dollars ($716.00) in medical treatment expense.
6. To UW Hospital and Clinics, Ninety-three dollars and sixty cents ($93.60) in medical treatment expense.
7. To UW Physician Billing, Three hundred three dollars ($303.00) in medical treatment expense.
8. To Professional Pharmacy Associates, Eighty-four dollars ($84.00) in medical treatment expense.
9. To United Healthcare Insurance, Five hundred forty-seven dollars and eighty-five cents ($547.85) in reimbursement for medical expenses paid.
10. To MetLife Dental Claims, One thousand six hundred fifteen dollars and seventy-seven cents ($1,615.77) in reimbursement for medical expenses paid.
11. To the applicant, the sum of Six hundred sixty-nine dollars and seventy-nine cents ($669.79) in out-of-pocket expense and Three hundred thirty-seven dollars and forty-five cents ($337.45) in medical mileage.

Jurisdiction is reserved for such further findings and awards as warranted under this order.
 

January 31, 2008
gabriec . wrr : 101 : ND §§ 3.2, 3.31, 5.7, 5.9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the presiding ALJ concerning witness credibility and demeanor. The commission's reversal of the ALJ's findings regarding temporary total disability compensation was not based on the credibility of the applicant, the only witness to testify before the ALJ. Rather, the commission's reversal was based on the credibility of the opinions of the medical and psychological experts, none of whom testified before the ALJ, and the legal effect of those opinions. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).

cc:
Attorney John B. Edmondson
Attorney Keith Kostecke



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Footnotes:

(1)( Back ) The applicant also included a claim for bad faith and inexcusably delayed payments; that issue was not heard by ALJ Landowski.

(2)( Back ) The applicant had been 0.6 FTE before the work injury.

(3)( Back ) This is a fingernail infection.

(4)( Back ) The statutes, of course, contemplate renewed periods of temporary disability when a worker reenters a healing period. Wis. Stat. § 102.44(7).

(5)( Back ) Because the commission finds an August 18, 2006 end of healing, the facts of the employer November 16, 2006 job offer need not be discussed at this point.

(6)( Back ) See DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2004, annotative note 177 to Wis. Stat. § 102.44(5); Letter from Chris M. Faulhaber, Workers Compensation Division Administrator, to "All Insurance Carriers and Self-Insured Employers", dated August 1, 1987 (Ins. 220), regarding "Social Security Reverse Offset Section 102.44(5)," page 9, point 7 (reprinted at Neal & Danas, Worker's Compensation Handbook, App. 4, pgs. 33, 41 (5th ed. 2003).) 

 


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