JOSEPH RIVERA, Applicant
STOUGHTON TRAILERS LLC, Employer
STOUGHTON TRAILERS LLC, Insurer
C/O STI HOLDINGS INC
The applicant filed an application for hearing in November 2005, alleging an injury on November 11, 2005 due to repetitive activities at work. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 29, 2007. Prior to the hearing, the self-insured employer conceded jurisdictional facts, and average weekly wage of $506. The primary issue before the ALJ was whether or not the applicant sustained an injury by occupational exposure while performing services growing out of and incidental to that employment. Also at issue was the compensability of certain medical treatment expenses.
The ALJ issued her decision in the applicant's favor on July 2, 2007. The self-insured employer 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:
1. Facts.
The applicant was born in 1958. In 1992, the applicant had an x-ray of his left shoulder and elbow done because of "arm pain." See exhibit 1. The applicant could not remember any details of this treatment. The 1992 x-ray was normal, and the applicant did not have restrictions on the use of his shoulder before the date of injury.
a. Work duties.
The applicant began working for the employer in 2005. He had two jobs during his employment with the employer. The applicant testified first about the brake hub assembly job, which involved attaching hubs to two axles on a chassis.
In this job, a worker would rub the axles to remove excess grease, and then move a hub from a pallet to the axle by hoist. After placing the hub on the axle, the worker would lock the hub into place using an air tool or wrench which imparted a kick as the bolt was fastened. The worker would then repeat the job to a second axle on the chassis.
The chassis was located on a turntable and, after two hubs were placed on one side of each axle, a worker would rotate the table 180 degrees by hand to attach two more hubs to the other side of the axles. After the hubs were installed, a worker would move another machine, suspended from the ceiling, docking it with each hub in turn. This step, again, required rotating the turntable on which the chassis sat.
According to the applicant, the videotape offered by the employer (exhibit 17) does not show some of the more difficult aspects of this job. Specifically, the applicant mentioned a jerking motion in the hoist that occurred while pulling up hubs from the bottom row of the pallet. The applicant also mentioned that at times a worker had to push down on a hub to lock it in place. Nor did the videotape show the more significant type of kick that the air wrench could impart if the thread on the hub was burred. He testified the more severe kicks occurred once to twice a night. The applicant added that, during a significant portion of his employment, the turntable was more difficult to move than shown in the videotape.
The applicant testified also that he had to move the pallets the hubs came on; these were stacked 15 high when empty. He carried objects weighing 25 to 30 pounds to his table (his supervisor put the weight for this at 15 to 20 pounds); put oil on the hubs with an oil gun which he had to fill occasionally; and emptied garbage cans in a head-high dumpster. Three or four times a night, a finished hub axle unit would come off an assembly track as it was moved to the next station. In that event, the applicant would have to use a pry bar to get it back on track, requiring quite a bit of force. None of these activities are shown on the videotape either.
The applicant performed a second set of duties he described as tire hanging. This job involved putting a tire on an axle. The tire is moved by hoist; the worker then lines the tire up with the axle and attaches it to the hub. The applicant testified it could be difficult to turn the tire to get it lined up on the axle, more difficult than shown on the videotape. He also had problems prying a finished hub axle back on the assembly line in this job, though it happened less often.
There is testimony from the applicant's supervisor, William Miller. Supervisor Miller testified that the videotape accurately showed the jobs the applicant did at Stoughton Trailers, though he admitted the video did not show some of the tasks, including wiping down the spindles or axles with paper towel. He testified the wiping task took two minutes and required the force of wiping down a table.
Supervisor Miller also testified that--when moving a hub by hoist--the hoist would jerk approximately three inches backward two or three times a night. He described the sensation as like a small child jerking an adult's arm to get attention. He added that a worker might have to push on a hub to position it properly on an axle, maybe twice a night, a task that took 30 seconds and required the same force as operating a lawn mower.
Supervisor Miller also testified that the air gun used to bolt the hubs on the axle weighed 8 pounds and was set for only 50 foot pounds of torque to avoid damaging the hubs. He added the air gun did kick back about two or three times a night. He added that such a kick back was shown on the videotape on the last axle. He described the sensation as being like hitting rock when digging with a shovel.
Supervisor Miller testified that generally the applicant's work was done at waist height. He acknowledged that the applicant might spend a half hour a night stacking pallets and that the last of the pallets in a stack might be shoulder height. He also confirmed the applicant would have to empty two garbage cans once a shift, and that he would have to lift the cans at shoulder height to get the trash in a dumpster. However, he added the garbage cans contained only paper towel and plastic bags and weighed not more than 30 pounds.
Supervisor Miller also acknowledged that a worker would have to use a pry bar once or twice a night to get a hub back on the assembly track. He said one used a bar weighing ten pounds and the task took a couple of minutes. The force required was like pushing a lawn mower up hill, and the applicant would be working below shoulder height.
Supervisor Miller added a worker doing the tire hanging job might have to turn a tire by hand once or twice a night, and that the force required was like turning a steering wheel sharply. He added the applicant did the tire hanging job for only three weeks.
On cross examination, Supervisor Miller admitted the applicant would have used his shoulders on a repetitive basis on several tasks not shown in the videotape. April 2007 transcript, page 31. He agreed that "required to use his shoulders on a repetitive basis at work" was an accurate characterization of the applicant's job duties. Id., page 32. Mr. Miller stated, however, that while the job was repetitive, he did not think it was heavy
Supervisor Miller also testified that the applicant complained to him about sore shoulders in September 2005 on a Thursday, and Mr. Miller told him to get back to him (Miller) if he (the applicant) still had a problem on the following Monday. According to Mr. Miller, the applicant did not mention a work connection (the applicant testified he did), though Mr. Miller testified that he himself told the applicant that sometimes a new job can cause a worker to have sore muscles where he has not used them before. April 2007 transcript, pages 8 and 9.
According to Supervisor Miller, the applicant did not mention a work connection again until late October 2005, when the applicant told him he thought he might have injured his shoulder using the air wrench in the axle room--one of the tasks shown in the videotape--sometime in September. Mr. Miller told the applicant he should have reported the incident when it happened, and then filled out an incident report which the applicant signed. Mr. Miller turned the report into his safety manager.
The report, dated October 24, 2005, is at exhibit 18. This lists a "strained muscle" injury, occurring in September 2005 when the applicant was:
working on an axle putting hub on tighten nuts with power tool pulled arm around. Didn't think nothing of it just thought I pulled a muscle. Told Bill Miller about it.
The incident report also contains this question and response
[Q] Are you/will you, or have you sought outside medical treatment? (If so, we ask you to inform us of who and when before treatment.)
[A] Went to my family doctor because the pain was getting worst. Dr. Allison Bethal. (OSF)
b. Treatment.
At the hearing, the applicant testified he gradually began experiencing problems with his work activities. He first saw his family doctor, Allison Benthal, D.O., in Rockford, Illinois, in October 2005.
The record contains a handwritten note from Dr. Benthal dated October 7, 2005. Exhibit 7. It mentions pain in the spine and right anterior chest and includes a notation "(-) rotator cuff tear." It appears the doctor was concerned about a rotator problem, as she referred the applicant for an MRI of both shoulders, which was done on October 19, 2005.
The MRI states a diagnostic history of rotator cuff strain bilaterally. The
radiologist's diagnostic impression with respect to the right shoulder was
significant AC (1) degenerative changes and a partial thickness tear of the supraspinatus tendon at the insertion of the greater tuberosity of the humerus along its anterior edge. The left shoulder similarly showed a small full thickness tear at the anterior ridge of the supraspinatus tendon at its insertion of the greater tuberosity of the humerus, and AC degenerative changes.
Dr. Benthal saw the applicant again on October 21, 2005. The handwritten note for this treatment is also at exhibit 7. The note indicates that the applicant had been seen on October 21, 2005 with complaints of bilateral shoulder pain; that he was assessed with bilateral shoulder pain, rotator cuff; and that he had (or would have) physical therapy. Dr. Benthal allowed him to return to work with light duty restrictions. Dr. Benthal's notes at exhibit 7 also contain a copy of the MRI report with annotation "would schedule appointment with Dr. Mark E. Carlson (orthopedic) to discuss further treatment options."
Dr. Carlson, like Dr. Benthal, has an office in Rockford, Illinois. On November 9, 2005, Dr. Carlson's assistant, Mark S. Van Anrooy, P.A.-C, wrote to Dr. Benthal, to document an office visit on that date. The note gives this history:
The patient states he was complaining of right shoulder pain for several weeks, which he aggravated at work while working as an assembler. He says he puts together brake hubs, working in front of him with his arms extended during his entire shift. He says his right shoulder is hurting greater than his left and he gets pain with use of both arms. He is having night pain, especially on the right...
On evaluation, a positive cuff sign and appositive impingement sign were noted, though the active range of motion was within normal limits. The applicant had decreased strength in some respects. Mr. Van Anrooy stated the applicant's diagnostic assessment was "bilateral shoulder internal derangement" which Dr. Carlson believed was work related due to the repetitive use of both arms.
The applicant received injections at Dr. Carlson's office, and physical therapy was recommended. Dr. Carlson stated that if the injections and physical therapy did not alleviate the applicant's symptoms, the doctor would recommend surgery.
Next, on November 15, 2005, the applicant saw Stephen A. Lindahl, M.D., who practices at the Mercy Occupational Clinic in Janesville, Wisconsin. The applicant testified he saw Dr. Lindahl at the advice of his lawyer, who was concerned that treatment in Illinois might raise a problem with the compensability of the treatment expenses under Wis. Stat. § 102.42(2). The lawyer suggested the applicant see Dr. Lindahl to get a referral to Dr. Carlson.
Dr. Lindahl's November 15, 2005 treatment note (exhibit 10) states the date of injury was "last week in September 2005" and gave this description of the mechanism of injury:
[The applicant], on the week of his injury, was involved in placing hubs on an axle assembly, which did require repetitive lateral movement with the arms outstretched in front of him. He noted within 1 to 2 weeks of doing this job that he had increasing right shoulder pain, more so on the left. The pain was beginning to aggravate him at night, as he was finding it difficult to lay on either his right or left side due to shoulder pain. He subsequently saw his personal physician in Rockford on October 21, 2005. MRI was obtained and indicated a left shoulder full thickness supraspinatus tear, as well as a partial, but significant tear of the right supraspinatus tendon. He was set up to begin physical therapy and set up for a possible surgical repair on December 7, 2005. He was advised by his employer (2) to seek opinion of occupational medicine stating he would need to see a Janesville doctor prior his procedure.
Dr. Lindahl's impression was "right shoulder partial supraspinatus tear and left shoulder full thickness supraspinatus tear." Dr. Lindahl's treatment plan was:
1. Orthopedic referral to Dr. Mark Carlson in Rockford with progression to surgery as scheduled.
2. Continue [medication] as prescribed by his orthopedic physician.
3. Continue physical therapy.
Dr. Lindahl concluded:
Return to work on November 15, 2005, with the following restrictions, continue same restriction with no work above shoulder height and no lifting over 2 pounds on the right. He is to avoid all repetitive pull, push, and fine manipulation on the right. Follow up with Dr. Carlson as scheduled.
The applicant then saw Dr. Carlson on December 27, 2005 on recheck. He told the doctor his left shoulder was better and that the injection made his right shoulder 50 percent better. Dr. Carlson's assessment--as reported by his assistant, Mr. Van Anrooy--was:
1. Right shoulder subacromial bursitis as well as partial rotator cuff tear.
2. Left shoulder rotator cuff tear, full thickness.
Mr. Van Anrooy concluded:
Dr. Carlson and I do believe this is a work related injury. The patient was given a cortisteroid injection at the right shoulder in the subacromial bursa.
The applicant returned to Dr. Carlson's office on January 4, 2006. On this occasion, he told the doctor his right shoulder was much better following the second injection. The doctor's assessment was a right shoulder subacromial bursa, resolved, a right shoulder partial rotator cuff tear, a left shoulder internal derangement and rotator cuff tear. Dr. Carlson recommended a left shoulder arthroscopic assisted subacromial decompression, AC joint excision, and rotator cuff repair.
In January 2006, Dr. Benthal did a preoperative physical on the applicant, describing him as a:
47 year old white male without significant past medical history who for the last approximate 6 weeks has noted more pain in his arms with overhead activities, some decrease in strength, left greater than right and who was working with repetitive skills without significant ergonomic evaluation.
Exhibit 9. Dr. Benthal cleared the applicant for surgery, which he underwent on February 23, 2006.
Specifically, Dr. Carlson did a left shoulder arthroscopic glenohumeral debridement, a labral repair, a subacromial decompression, a joint excision, and the installation of a pain pump. His post-operative diagnosis was superior labral tear, grade 1 articular surface wear in the rotator cuff, and grade 1 bursal surface rotator cuff with no full thickness tear, subacromial bursitis, and AC joint arthrosis.
After the applicant's 10-week post-surgery evaluation, he was ready to undergo a right shoulder surgery. On May 16, 2006, then, he underwent a second preoperative evaluation by Dr. Benthal, followed by May 18, 2006 right shoulder surgery, including extensive glenohumeral debridement, a rotator cuff repair, an arthroscopic subacromial decompression, an open anterior AC joint excision, and the installation of a pain pump.
Follow-up notes for this procedure are at exhibit 5. Physical therapy was prescribed. On June 30, 2006, the applicant was discharged to return as needed, with the caveat that healing could take 3 to 6 months. The applicant began attending work hardening in the fall of 2006, and on November 29, 2006 underwent a functional capacity evaluation. After that, on December 7, 2006, Dr. Carlson released the applicant to medium/heavy work, citing the functional capacity evaluation.
c. Expert medical opinion.
Both parties submit expert medical opinion on the question of work-relatedness and extent of disability.
The applicant relies on the opinion of Dr. Carlson, the Illinois orthopedic surgeon who performed his surgeries. On January 4, 2006, or before the surgeries were done, he completed a practitioner's report on form WKC-16-B. Exhibit A. The report identifies the "date of traumatic event" as November 11, 2005, and describes the accident or exposure that caused disability as "employee required to use shoulders on a repetitive basis at work."
Box 5 of the form report includes three interrogatories to the doctor. Asked if the applicant's work activities constituted a material factor in aggravating a preexisting condition, the doctor responded affirmatively. (3) Asked if surgery was necessary to cure and relieve the effects of the work injury, the doctor again responded affirmatively. Asked if the applicant would remain in a healing period until the surgery was performed and for a reasonable time after, the doctor yet again responded affirmatively. Finally, Dr. Carlson affirmatively marked the occupational disease causation box indicating that the applicant suffered from a condition caused by an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of the condition.
Dr. Carlson wrote a second practitioner's report on December 20, 2006. Exhibit F. This report identifies the date of traumatic event as November 11, 1005, with the notation "ldw" for last day of work. Regarding the work exposure to which the applicant attributed his disability, the doctor stated: "employee required to use shoulders on a repetitive basis at work." Dr. Carlson referred to his treatment notes for diagnosis, and opined the applicant could work subject to permanent restrictions to medium to heavy employment on December 7, 2006. He affirmatively marked all three causation boxes on the form report.
Regarding disability, Dr. Carlson rated permanent partial disability at ten percent at each shoulder, citing motion loss, weakness, arthrosis potential, and biomechanics potential. While he indicated a "good" prognosis, Dr. Carlson also stated repeat surgery was a possibility. In an attachment, the doctor reiterated his permanent partial disability rating, opined the applicant's healing period ended on December 7, 2006, adopted the restrictions set out in the November 2006 FCE, and stated further treatment could be reasonably expected.
The employer had the applicant examined by Bradley M. Fideler, M.D., on December 12, 2005. In his report dated December 21, 2005 (exhibit 11), Dr. Fideler stated that the applicant reported that "he started having some pain in his shoulder in September 2005 when he was apparently pulling on some kind of wrench that loosened, and then he had problems with pain." Dr. Fideler went on to opine the applicant had rotator cuff impingement, partial tearing, and acromioclavicular joint degenerative arthritis on the right. He stated the applicant had rotator cuff impingement, small full thickness tear, and acromioclavicular joint arthritis on the left. He added:
Obviously, the injury at work was alleged to have occurred when the examinee was trying to tighten a bolt down on a hub of a tire and started developing some shoulder pain. However, in my opinion, there is no question that a good majority of the examinee's problem is a pre-existing condition with the significant degenerative changes in both acromioclavicular joints, as well as the degenerative condition of both rotator cuffs. There is some documentation in his medical records that were reviewed by me that there is also a pre-existing permanent partial disability on his left shoulder, although I do not currently have any medical documentation confirming this. That particular information would confirm the long-term pre-existing condition with regards to the impingement, acromioclavicular joint arthritis, and now subsequently the rotator cuff tear on the left and partial thickness rotator cuff tear on the right.
Dr. Fideler went on to say that regardless of causation, he agreed completely with the treatment the applicant had received to the date of his report. He added that since the applicant's symptoms were persistent, he agreed with the recommendations to proceed with the surgical correction of the problem, though he reiterated he regarded them as related to a pre-existing condition and not directly related to work activities or a work related injury.
Dr. Fideler further opined "traumatic work exposure" did not directly cause the applicant's disability, that work did not precipitate, aggravate, and accelerate a pre-existing degenerative condition beyond normal progression, and that work exposure was not at least a material contributory causative factor in the progression of the applicant's condition. Rather, the doctor opined that the "occurrence or incident complained of [was] a mere manifestation or appearance of symptoms of a definitely pre-existing condition." He explained:
There is no question that the examinee has a degenerative condition in both shoulders. He has significant degenerative arthritis in both acromioclavicular joints, which is definitely pre-existing his employment. The examinee had been employed at Stoughton Trailers for only five months.
Dr. Fideler added that permanent partial disability and the end of healing could not be determined until the applicant had actually undergone the shoulder surgeries.
Dr. Fideler prepared a supplemental report on March 2, 2006 (exhibit 12). By this time, the doctor had watched a videotape of the applicant's work activities; presumably this is the tape in the record at exhibit 17. The doctor stated:
After reviewing the work activities on the videotape, obviously a certain number of the activities could have caused him to notice his shoulder problems. However, this is a degenerative condition within both shoulders, which, again, is related to the examinee's anatomy and they developed over a long period of time. ...
[I]t remains my opinion that his five or six months of work activity was not a material factor in causing any progression of this disease process.
In response to interrogatories, the doctor added:
The type of employment he was doing, in my opinion, is not characteristic with causing the significant degenerative condition he has in both shoulders.
...
It is my opinion that the short period of exposure to this was not enough to cause any significant progression of the pre-existing, degenerative condition.
Dr. Fideler finally stated the treatment the applicant had received to this point (and it would have included the first shoulder surgery) was reasonable.
Dr. Fideler did one last report on October 31, 2006, this one following a reexamination on October 10, 2006, in which he restated his conclusions on causation. In this report, Dr. Fideler described the applicant's employment as an assembler at Stoughton Trailers as
"He does relatively heavy work pushing and pulling, which he was doing for about five months prior to the onset of his shoulder problems."
Dr. Fideler's summary in this report described the applicant as a 48-year old with bilateral shoulder problems and
chronic degenerative conditions in both shoulders as well as degenerative rotator cuff tears and chronic impingement. He had been employed at Stoughton Trailers for five months when he started developing symptoms from his chronic impingement, chronic degenerative changes, and acromioclavicular joint arthritis. His symptoms at that time in all likelihood were a mere manifestation of a pre-existing degenerative condition. The activities that he was doing at work in all likelihood caused him to further notice the condition, but I do not feel that they aggravated or accelerated it beyond a normal progression. Obviously, when they did the arthroscopies, they found extensive arthritic changes within the glenohumeral joint, chronic impingement, rotator cuff tears, as well as acromioclavicular joint arthritis, which are chronic degenerative changes, which take many years to develop, and not five months of work at Stoughton Trailers.
Dr. Fideler again stated he completely agreed with the treatment plan set by Dr. Carlson, and that an end of healing had not been reached, so permanent partial disability could not be estimated at that point.
2. Discussion.
a. Causation.
The ALJ found the opinions of the applicant's treating doctors more credible than that of Dr. Fideler, and concluded that his workplace exposure was at least a material contributory causative factor in the onset or progression of his condition. She noted that in addition to the formal opinion of Dr. Carlson, Drs. Benthal and Lindahl opined the applicant's condition was work related. She described the work as repetitive and noted that even Dr. Fideler said it was heavy. She discounted Dr. Fideler's opinion that work exposure was not causative, noting that while his opinion rested on the fact the applicant only worked for Stoughton Trailers a short time, the law does not require any specific length of employment as a prerequisite for a finding of causation by occupational disease. She noted, too, that the applicant had no prior problems other than the single unexplained x-ray in 1992.
On appeal, the employer challenges Dr. Carlson's report, noting the December 29, 2005 letter from the applicant's attorney to the applicant (exhibit 4), in which the attorney pointed out that Dr. Carlson had marked the causation box "no." According to the employer, Dr. Carlson thereafter "mysteriously" changed his opinion 180 degrees to give an opinion in the applicant's favor. The employer notes, too, that much of the medical evidence in Dr. Carlson's notes was documented by Dr. Carlson's physician's assistant, Mr. Van Anrooy, whom the employer describes as "a less highly trained and qualified provider than a physician."
The employer suggests as well that the applicant did not adequately describe his duties to Dr. Carlson. On this point, the employer further notes that while Dr. Carlson did not review the video, its expert, Dr. Fideler, did. The employer also makes the point that while, as ALJ Endter noted, there is no particular minimum amount of time that work exposure must exist to be causative on a legal basis, that does not mean that length of employment does not have a medical significance on which a doctor may base his expert opinion.
Finally, the employer points to inconsistencies in the applicant's testimony, including the fact that sometimes he seems to emphasize a particular event--tightening bolts with air wrench as causing his shoulder pain--but other times he does not. The employer notes, too, a difference in the testimonies of Supervisor Miller and the applicant about whether the applicant mentioned work as a possible cause when he first complained to Miller about his shoulders in September 2005.
The commission agrees with the ALJ that the opinions of the applicant's treating doctors are more credible than Dr. Fideler's. Dr. Carlson's opinion is based on a characterization of the employee being required to use his shoulders on a repetitive basis at work. Supervisor Miller testified that that was an accurate description of the applicant's duties and Dr. Fideler added the observation that the work involved relatively heavy work pushing and pulling.
It is true that Dr. Carlson did not see the videotape of the applicant's job duties, but Dr. Fideler was willing to offer an opinion on causation by occupational disease before he himself saw the tape. More significantly, both the applicant and Supervisor Miller testified the videotape omitted numerous tasks or aspects of the job that placed additional stress on the shoulders. From the commission's view of the videotape and the testimony of the witnesses at hearing, it is satisfied that Dr. Carlson had an accurate description of the applicant's job
Nor is the commission persuaded by the employer's arguments about the qualifications of physician's assistant Van Anrooy and the fact many of the notes from Carlson's office were signed by him. The role of the physician's assistant in current medical practice is reflected in the statutes, which recognize that such practitioners are qualified to opine on some points in worker's compensation. Wisconsin Stat. § 102.17(1)(d)1. In short, the commission is reluctant to discount a medical doctor's opinion because some of his treatment notes are prepared by a physician's assistant working under his supervision.
Nor does Dr. Carlson's "mysterious" change of opinion after the letter from the applicant's attorney raise doubt on causation in this case. Again, the commission infers Dr. Carlson inadvertently answered "no" to question "A" in box five of the report (referred to by the applicant's attorney), since the doctor presumably had marked the other questions in box 5 affirmatively and had already opined in favor of work causation with Mr. Van Anrooy's November 9, 2005 letter to Dr. Benthal.
Regarding the applicant's credibility, the commission also notes that there is no dispute that the applicant has a disabling shoulder condition. As set out above, the testimony of Supervisor Miller and the report of Dr. Fideler confirm Dr. Carlson's description of the job as involving repetitive shoulder use. Supervisor Miller testified that he himself mentioned employment exposure when the applicant first complained of shoulder problems in the September 2005 conversation, telling the applicant his shoulder problem could be just sore muscles from the job. The commission is satisfied that the applicant accurately described his job and symptoms to Dr. Carlson.
The commission acknowledges that while the law does not require a particular length or duration of employment exposure to be causation--other than that it be "an appreciable period" (4) -- the length of exposure may well be medically relevant. But that being said, one may reasonably infer from Dr. Fideler's opinion that he believed the applicant's work exposure could have been a material causative factor in the progression of the pre-existing degenerative condition had he done it longer. In other words, Dr. Fideler does not suggest that Dr. Carlson based his opinion on work exposure that simply cannot cause a progression of the applicant's shoulder condition. Given the timing of the onset of the applicant's symptoms, the activities shown in the videotape which involve shoulder stress, and the fact that the videotape failed to show many of the job duties that involved even more shoulder stress (moving the pallets, the jerking hoist, the kickback from the air gun, prying the hub back on line, emptying garbage, etc.), the commission cannot accept Dr. Fideler's opinion that the work exposure was too brief to be a material contributory causative factor in the onset or progression of the applicant's condition.
The commission therefore concludes that the applicant sustained disability to both shoulders from occupational exposure arising out his employment with the employer, while performing services growing out of or incidental to that employment. The extent of disability from that injury as set out is not in dispute; indeed, the parties stipulated (assuming the injury was found compensable) to the amounts at the hearing. Transcript, page 7.
b. Medical expense
The next issue is the compensability of the claimed medical treatment expense. The dispute arises from the fact that much of the applicant's treatment was rendered by practitioners who are not licensed in this state. Wisconsin Stat. § 102.42(2)(a) provides:
102.42(2)(a) When the employer has notice of an injury and its relationship to the employment, the employer shall offer to the injured employee his or her choice of any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employee may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are considered to be one practitioner. Treatment by a practitioner on referral from another practitioner is considered to be treatment by one practitioner. [Underlining supplied.]
The statute, then provides mutual agreement is generally required if a worker wants the "choice" of a qualified practitioner not licensed in Wisconsin. But what if a person sees an out-of-state doctor on referral from a Wisconsin-licensed doctor? Is that treatment a new "choice" of an out-of-state practitioner for which mutual consent is required? Or is it "considered to be treatment by one practitioner" under the last sentence of the statute--that is, not a new choice--so that mutual consent is not required?
The commission has previously held out-of-state treatment on referral from a Wisconsin doctor was not a new choice, and therefore was compensable. The commission's reasoning in these decisions was affirmed by the supreme court in UFE, Inc., v. LIRC, 201 Wis. 2d 274, 285-86 (1996). There, the court noted that while the commission had denied medical expense incurred when a worker had gone to an Illinois doctor "solely of his own volition," (citing LIRC's decision in Allans Electric), the commission had paid the expense when the worker saw the out-of-state doctor on referral from a Wisconsin doctor (citing LIRC's decision in Olson v. Northern Engraving and the underlying LIRC decision in UFE, Inc.). UFE, Inc., at 201 Wis. 2d 286.
After the UFE, Inc., decision, Wis. Stat. § 102.42(2)(a) was modified by 1997 Wis. Act 38, effective January 1, 1998. The last two sentences of statute were amended to state
"Treatment by a practitioner licensed to practice and practicing in this state on referral from another practitioner is deemed to be treatment by one practitioner. Except by mutual agreement, an employer or worker's compensation insurer is not liable for treatment provided by a practitioner not licensed to practice and practicing in this state on referral from another practitioner."
However, 1997 Wis. Act 38 contained a "sunset" provision, so that Wis. Stat. § 102.42(2)(a) reverted to its original form--the form that it had been in when the supreme issued its UFE, Inc., decision--on January 1, 2000. (5) Thus, the current version of the statute is the same as the version interpreted by the Supreme Court in UFE, Inc., to allow for the compensation of out-of-state treatment if on referral from a Wisconsin-licensed physician. See Neal & Danas, Worker's Compensation Handbook § 5.48 (5th ed. 2007).
Admittedly, the applicant asked Dr. Lindahl for a specific referral to Dr. Carlson. However, following the rule of liberal construction that generally applies with respect to the choice of practitioner statute, (6) the commission has previously found referrals under Wis. Stat. § 102.42(2) to include referrals by one doctor to a second doctor, where the injured worker specifically asked for a referral to the second doctor by name. (7)
Of course, the applicant asked Dr. Lindahl for a referral to Dr. Carlson only after he had started treating with Dr. Carlson. The commission has previously refused to decline to find medical expense compensable based on a wholly retroactive referral. Janet Pitzer v. Randalls Discount Foods, WC case no. 1996-062650 (November 4, 1999). In Pitzer, however, the injured worker obtained the referral from a Wisconsin doctor to cover treatment in Minnesota only after the all of the treatment in Minnesota had been rendered. Here, the applicant obtained a referral from Dr. Lindahl for a single visit with Dr. Carlson--the vast majority of his treatment in Illinois occurred after Dr. Lindahl's referral on November 15, 2005.
The commission therefore concludes that all of the medical treatment expense incurred in Illinois after the referral by Dr. Lindahl on November 15, 2005, is compensable under Wis. Stat. § 102.42(2). This evidently includes all the expenses claimed but the October 7 and 14, 2005 visits with Dr. Benthal, the October 19, 2005 MRI, and the November 9, 2005 visit with Dr. Carlson. Subsequent visits with Dr. Carlson were on referral from Wisconsin-licensed Dr. Lindahl, and he (Carlson) referred the applicant for the physical therapy and other treatment. The later appointments with Dr. Benthal were for pre-operative physicals and follow-up for the surgeries done by Dr. Carlson, and so fall within the concept of a referral by Carlson.
3. Award.
As a result of the applicant's work injury, he was temporarily and totally disabled from December 21, 2005 to December 7, 2006, a period of 50 weeks and one day, payable at the weekly rate of $337.34 (two-thirds the average weekly wage of $506), for a total of $16,923.22. The self insured employer is allowed a credit for the payment of short term disability payments made during the period of temporary total disability in the sum of $12,319.84, leaving an additional amount due in temporary disability of $4,603.38.
As a further result of his work injury, the applicant sustained a permanent partial disability of 10 percent at each shoulder, or 110 weeks of permanent partial disability payable at the weekly rate of $242 (the statutory maximum for permanent partial disability in 2005) totaling $26,620.00. As of March 10, 2007, a total of 65 weeks and four days totaling $15,891.33 in permanent partial disability has accrued; $10,728.67 remains unaccrued.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded, the future value of the fee is $6,244.68 {0.20 times ($4,603.38 plus $26,620 in TTD)}. Because some of the award is unaccrued, the fee is subject to an interest credit of $64.13 for the advance payment, leaving a present value fee of $6,180.54. That amount, plus costs of $125, shall be paid to the applicant's attorney within 30 days.
The amount payable to the applicant within 30 days is $16,270.77, which equals the sum of the additional amount in temporary disability ($4,603.38) plus the accrued permanent partial disability ($15,891.33), less the fee on those amounts ($4,098.94) and less costs of ($125). The amount to be paid the applicant as it accrues after March 10, 2008 equals $8,592.93, which equals the unaccrued permanent partial disability ($10,728.67) less the fee thereon ($2,145.74). That amount shall be paid in monthly installments of $1,048.67.
Based upon the foregoing, the medical expenses identified in exhibit 16 (8) shall be paid except for the $668.00 charge from Camelot Radiology on October 19, 2005, and the $408 charge from Carlson Othopaedic on November 9, 2005 (there are no charges listed for service with Dr. Benthal before February 2006). Specifically, the applicant incurred reasonable and necessary expenses to cure and relieve the effect of the work injury as follows: from Rockford Anesthesia, $1,840.00, of which $1,026.00 was paid by a non-industrial insurer, and $814.00 was adjusted from the bill; from Rock Valley Anesthesia, $2,574.00, all of which was paid by a non-industrial insurer; from Rock Valley Pathology, $67.00, of which $26.71 was paid by a non-industrial insurer and $40.29 was adjusted from the bill; from Camelot Radiology, $398.00, of which a non-industrial insurer paid $110.79 and $287.21 was adjusted from the bill; from Allison Benthal, a total of $530.00, of which $313.18 was paid by a non-industrial insurer and $216.82 was adjusted from the bill; from Carlson Orthopaedic, $38,112.00, of which $6,881.45 was paid by a non-industrial insurer, $31,011.55 was adjusted from the bill, $40 was paid by the applicant, and $179.00 remains outstanding; from EGE Worksmart Solutions, $1,200, all of which is outstanding; and from St. Anthony Medical, $56,748.70, of which the applicant paid $1,035, $15,809.36 was paid by a non-industrial insurer, $32,481.34 was adjusted from the bill, and $7,423 remains outstanding. The applicant also incurred $108.01 in out-of-pocket prescription expenses.
By agreement of both parties, the amount due the non-industrial insurer shall be paid to Ingenix. See exhibit 16. The parties also agree Ingenix paid $27,927.19 toward the expenses itemized on exhibit 16. However, after deducting the amounts attributable to the $688 charge by Camelot Radiology for the October 19, 2005 MRI ($399.92 paid and $268.08 adjusted from the bill), and the $408 office visit with Dr. Carlson on November 19, 2005 ($129.12 paid and $278.88 adjusted from the bill) that are not compensable under this order, the amount to be paid Ingenix in reimbursement of expenses paid under Wis. Stat. § 102.30(7) is $27,398.15.
In his most recent practitioner's report at exhibit F, Dr. Carlson opined that repeat surgery might be necessary in the future. Accordingly, this order shall be left interlocutory to permit additional orders and awards for additional claims for disability and medical expense that might arise in the future.
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Joseph Rivera, the sum of Sixteen thousand two hundred seventy dollars and seventy-seven cents ($16,270.77) in disability compensation, and One thousand one hundred eighty three dollars and one cent ($1,183.01) in out-of-pocket medical expense.
2. To the applicant's attorney, James A. Meier, the sum of Six thousand one hundred eighty dollars and fifty-four cents ($6,180.54) in attorney fees and One hundred twenty-five dollars ($125.00) in legal costs.
3. To Carlson Orthopaedic, One hundred seventy-nine dollars ($179.00) in medical treatment expense.
4. To EGE Worksmart Solutions, One thousand two hundred dollars ($1,200.00) in medical treatment expense.
5. To St. Anthony Medical, Seven thousand four hundred twenty-three dollars ($7,423.00) in medical treatment expense.
6. To Ingenix, Twenty-seven thousand three hundred ninety-eight dollars and fifteen cents ($27,398.15) in reimbursement of medical expenses paid.
Beginning on April 10, 2008, and continuing on the tenth day of each month thereafter, the employer shall pay the applicant One thousand forty-eight dollars and sixty-seven cents ($1,048.67) per month until the additional amount of Eight thousand five hundred eighty-two dollars and ninety-three cents ($8,582.93) is paid.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed February 28, 2008
riveria . wrr : 101 : 1 ND §§ 3.4, 5.48
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission's modification to the ALJ's order was not based on witness credibility or demeanor. Consequently, the commission did not confer with the ALJ as discussed in Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).
cc:
Attorney James A. Meier
Attorney Beth A. Whitaker
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