JAY BRENNAN, Applicant

JOHNNY B HOME CONSTRUCTION INC, Employer

INTEGRITY MUTUAL 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 December 29, 2008
brennja . wsd : 175 : 6  ND §§ 5.46, 5.50

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining the employer was not liable for the medical expenses claimed in 2006 and 2007 for the applicant's work related cervical injury in 1999. The applicant asserts that under the holding of the Wisconsin Supreme Court in Spencer v. Department of Industry Labor and Human Relations, 55 Wis. 2d 525 (1972), the administrative law judge should have ordered the payment of the medical expenses. The applicant states where there is an undisputed, compensable industrial injury, and an employee accepts the recommendation of his physician, even when another doctor disagrees, the commission cannot disregard the consequences of the treatment because it finds the treatment either unnecessary or unreasonable.

However, in the Spencer case the dispute did not involve whether the treatment expense claim was related to the work injury, but rather the issue was whether the treatment performed was necessary to cure and relieve the work injury. The administrative law judge appropriately noted in our current case that whether a causal connection exists between the applicant's 1999 cervical injury and treatment occurring 7 years later in 2006 and 2007, is a complicated scientific question, and to meet his burden of production, the applicant needed to present an expert opinion connecting the injury and the treatment. Although given an opportunity to do so, the applicant failed to provide any medical expert opinion to establish that the treatment he received for a cervical problem in 2006 and 2007 was related to the 1999 work injury.

The limited compromise agreement signed by the parties on December 10, 2002 provides that it is specifically understood the employer will have continued liability for continued medical expense proven as related to the conceded cervical injury. In this case the evidence did not establish that the applicant's need for treatment in 2006 and 2007 was related to the work injury in 1999. Therefore, given the applicant's failure to provide a causal connection between the 1999 work injury and his treatment in 2006 and 2007 by expert opinion, the administrative law judge appropriately dismissed his claim for payment of these medical expenses with prejudice.

cc: Attorney Terence Bouressa
Attorney Randall Skiles

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