MARK W PRESCOTT, Applicant
STOUGHTON TRAILERS LLC, Self- Insured Employer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 4, 2008. The self-insured employer submitted an answer to the petition and briefs were submitted by the parties. A compensable left shoulder injury was conceded as having occurred on August 1, 2005. Temporary disability payments were made for the period up to November 22, 2005. At issue are whether or not the applicant is entitled to a prospective order for left shoulder surgery, as well as the applicant's claim for prior medical expense. Also at issue is a claim for additional temporary disability beginning November 22, 2005, and continuing until the date of the last hearing held on November 14, 2007.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part her Findings and Interlocutory Order. The commission makes the following:
Dr. Stitgen diagnosed left shoulder impingement with a possible rotator cuff tear. He recommended arthroscopic left shoulder surgery, but primarily due to the employer's refusal to pay for such surgery, the applicant did not have it. The employer's refusal to pay for surgery was based on the opinion of Dr. David Solfelt, who at the employer's request, examined the applicant and reviewed his medical records. Dr. Solfelt opined that the applicant had injured his left shoulder at work on August 1, 2005, but his diagnosis was work-related acute impingement syndrome with an end of healing on November 22, 2005, and no permanent disability.
The administrative law judge accepted Dr. Stitgen's opinion that the work incident necessitated the prospective need for left shoulder surgery, which the parties now agree the applicant underwent on April 18, 2008. The commission also found Dr. Stitgen's opinion credible. The employer has acknowledged that it is paying the applicant temporary disability from the date of the surgery on April 18, 2008, until a healing plateau has been reached. The controversy remaining before the commission concerns the administrative law judge's additional finding that a healing plateau from the original injury was reached on October 10, 2006, and that no temporary disability was due again prior to the surgery. The administrative law judge found that when the applicant saw Dr. Kolimas on October 10, 2006, that physician "noted that Mr. Prescott was no better or worse." The administrative law judge further found that the applicant's condition had stabilized as of that date and reached an end of healing.
In fact, on October 10, 2006, Dr. Kolimas noted that the applicant stated "...his shoulder feels about the same, no better, no worse." Dr. Kolimas then examined the applicant and wrote:
"The patient continues to have pain and signs of impingement in his left shoulder again with a possible rotator cuff tear associated with these work events as discussed above. I recommend patient be further evaluated regarding MRI studies of the left shoulder to help in determination of further treatment which would include surgical management of this problem. As far as his work and activity restrictions, they essentially remain unchanged. The patient should keep his left elbow close to his body when performing a task with the left upper extremity with a 20-pound weight limit of lifting, pushing or pulling on an occasional basis. Discussed with patient that the basis of the restrictions are trying to avoid more injury to the shoulder and that there would be a risk of causing for example an increase rotator cuff tear if the patient was doing heavier lifting or particularly heavy or overhead lifting or with external rotation away from the shoulder ... His condition can be reassessed in 6 months. Advised the patient to continue doing his daily exercises for his shoulder including scapulothoracic and rotator cuff exercises within the limits of mild pain only and that patient is encouraged to use his left upper extremity with the restrictions as stated above."
In his clinic noted dated December 19, 2005, Dr. Kolimas noted: "...It is reasonable that the patient may have sustained at least a partial rotator cuff tear contributing to his ongoing left shoulder pain." In his clinic note dated April 27, 2006, Dr. Kolimas indicated that he had reviewed Dr. Stitgen's clinic note of April 6, 2006, and that Dr. Stitgen's impression included a possible rotator cuff tear. Dr. Stitgen's clinic note indicates that he discussed shoulder surgery with the applicant, gave him a pamphlet on arthroscopic shoulder decompression and rotator cuff repair, and that the applicant was fairly sure he wanted to have surgery. On December 19, 2005, Dr. Kolimas had completed a WKC-16-B that indicated there was a possible need for surgery. On March 6, 2006, Dr. Kolimas had indicated in a clinic note that he recommended a follow-up with Dr. Stitgen for consideration of surgical management if significant progress in the applicant's condition had not been made. On August 31, 2006, Dr. Stitgen completed a WKC-16-B and questionnaire indicating the applicant's work-related left shoulder pain had not resolved with conservative treatment and surgery would be the appropriate treatment. On January 18, 2007, Dr. Stitgen noted in a clinic note that the applicant's situation "...continued to be mired in Workers Comp issues" and that the applicant "...is not going to have surgery until this is cleared up."
The applicant credibly testified that the only reason he delayed having the surgery was the employer's refusal to pay for it. The medical evidence supports this testimony, and in consultation with the administrative law judge, she had no credibility impression to the contrary. The administrative law judge indicated that she believed even though surgery was the recommended medical approach, the applicant's unchanging medical status between October 10, 2006, and the date of surgery meant that a healing plateau had been reached on that former date.
However, the commission has regularly found that in the circumstance in which surgery is required for the injured worker to reach full healing, but the employer/insurer are contesting liability for that surgery, the healing period continues until the surgery takes place.(1) It was also stated in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 259 N.W.2d 124 (1977):
"In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose." Id. at 461-62.
The facts of the applicant's case are that during the period in question, he was in need of the left shoulder surgery to reach full healing, but did not have it because the employer would not pay for it. Furthermore, neither Stoughton Trailers nor any other employer offered him full-time employment accommodating his substantial physical restrictions. The employer attempts to analogize the applicant's case to that of the employee in GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 516 N.W.2d 393 (1994). In GTC, the court reversed the commission's order that respondents were to keep paying temporary total disability indefinitely, until either the employee (Bartosh) decided he wanted to undergo a recommended back surgery, or until respondents agreed to pay for vocational retraining. Bartosh had also reached a point where no additional healing could occur unless he underwent surgery, but Bartosh decided that he did not want the surgery. In the case at hand, the applicant did want to go ahead with the left shoulder surgery, but the employer would not pay for it.
Accordingly, the applicant is entitled to additional temporary disability from the period beginning November 22, 2005, and continuing to the date of the final hearing held in this matter on November 14, 2007. If the same circumstances existed between November 14, 2007 and the date of surgery, then of course additional temporary disability would be due for that period. The current proceeding does not formally address that issue.
The applicant was temporarily disabled from November 22, 2005 to October 10, 2006, and consistent with the summary submitted at Exh. K, the total amount of temporary disability owing is $16,996.88. It appears at that the employer previously paid this amount to the applicant, minus a 20 percent attorney's fee, in accordance with the administrative law judge's order. The commission's order will reiterate the order to make such payment, but of course, the employer may take credit for all the amount it previously paid.
The record before the commission fails to identify the specific amount of temporary disability due for the period between October 10, 2006, and the date of the last hearing on November 14, 2007. Accordingly, the order will be left interlocutory for the applicant to submit the appropriate accounting for that claim to the employer. The employer shall make immediate payment to the applicant and his attorney, unless it has a reasonable basis for disputing the accuracy of such accounting, in which case opportunity for additional hearing on that specific issue will be provided. Of course, jurisdiction will be reserved with respect to the issue of temporary disability between the last date of hearing and the date of surgery. Jurisdiction will also be reserved for any other issues not resolved by this interlocutory order.
The applicant submitted a WKC-3 which lists reasonably required medical expense with a balance due Dean Health System in the amount of $2,035, and a balance due AMPT in the amount of $879. Also claimed is $716.88 in medical mileage expense, but there is no supporting summary of how this alleged mileage was accrued. Once again, there was no discussion or resolution of this issue submitted into the record, and the parties do not address it in their briefs. Accordingly, the issue of the applicant's medical mileage expense also remains open. The applicant should submit a supporting summary to the employer, who should immediately pay the expense unless a reasonable basis exists for disputing it, in which case opportunity for hearing on the issue will be provided.
Now, therefore, this
Jurisdiction is reserved as noted in the above findings, and for such further findings, orders or awards as may be necessary for any issue not finally resolved in this interlocutory order.
Dated and mailed September 18, 2008
prescma . wpr : 185 : 9 ND § 5.6
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Raymond G. Clausen
Attorney Andrew J. Quartaro
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]