JEFFREY JAY ZAIS, Applicant
GUSTAFSON CONSTRUCTION, Employer
MUSSON BOS INC, Employer
TRANSPORTATION INS CO, Insurer
WEST BEND 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. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed November 18, 2008
zaisje : 185 : 9 ND § 5.48
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission found Dr. Karr's opinion credible. The applicant's low back symptoms and difficulties were ongoing and progressively worsening subsequent to the work injury of October 18, 1991, and the related 1991 and 1993 surgeries. The credible evidence leads to the inference that there was no low back injury resulting from the work incident of September 16, 2003 (originally claimed as occurring on September 23, 2003). While the applicant did perform substantial physical duties in his employment with Musson Brothers, Inc., his testimony leads to the inference that he did not exceed his physical restrictions. Dr. Karr credibly opined that the gradual worsening of the applicant's symptoms after the 1991 work injury, and the 1991 and 1993 surgeries, was characteristic of lumbar post-fusion syndrome that in the applicant's case required narcotic management. Dr. Karr credibly opined that the applicant's workplace exposure at Musson Brothers was not a causative factor in his new onset of disability and new surgeries.(1)
Gustafson Construction and Transportation Insurance additionally argue that Dr. Ahuja was the applicant's third choice of physician stemming from the 1991 work injury; and that pursuant to Wis. Stat. § 102.42(2), payment for treatment provided by Dr. Ahuja cannot be their responsibility, because the applicant did not seek approval from them before going to Dr. Ahuja. Gustafson Construction and Transportation Insurance assert that the applicant's first choice of physician for the 1991 work injury was Dr. Stephen Nord, and that his second choice was Dr. Thomas Doers, thus making Dr. Ahuja the third choice. However, Wis. Stat. § 102.42(2) provides in relevant part that: "Partners and clinics are considered to be one practitioner." The record demonstrates that at the times they treated the applicant, Dr. Nord and Dr. Doers practiced medicine as colleagues from the same clinic, the Milwaukee Medical Clinic. Accordingly, Dr. Ahuja constituted only the applicant's "second choice" of physician pursuant to the statute.
cc:
Attorney David A. Nelson
Attorney Mark H. Miller
Attorney William R. Sachse
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