Wis.LIRC WC Decision: Raupp - December 17, 2008 - ND � 8.19 Right to Further Hearing - ALJ failed to honor agreement made at hearing that PPD and other issues were to be addressed in subsequent proceeding. He decided those issues in his order. Commission sets aside those findings as violating due process, leaving the order interlocutory so that those issues may be addressed later. Also, order for prospective payments is modified due to lack of clarity in the evidence.

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

JESSE A RAUPP, Applicant

PEKUL INC, Employer

REGENT INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-041540

Pekul, Inc. and Regent Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 5, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. Limited issues are presented regarding the nature and extent of disability, and liability for medical expense, attributable to the conceded work injuries of July 4, 1981. The limited nature of these issues is more particularly explained below.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is July 4, 1981, sustained conceded work injuries on November 2, 2004, when he slid 34 feet down a pitched roof and fell over the edge onto a driveway 17 feet below the roof. The injuries sustained included fractures to his right wrist and foot, ankle injuries, and an L1 compression fracture. There is a central disc herniation at L5-S1, for which causation is contested because respondents' physician, Dr. Stephen Barron, did not attribute it to the work incident. A limited compromise agreement was entered into in June 2006.

Pursuant to the opinions of applicant's physicians and podiatrist, the administrative law judge (ALJ) awarded 5 percent permanent partial disability (PPD) at the right ankle; as well as a minimum of 5 percent PPD to the whole body, subject to increase after the proposed fusion surgery at L5-S1. The ALJ also awarded additional medical expenses for the period between June 4, 2006, and the date of hearing. Finally, the ALJ awarded prospective liability for future medical treatment including the recommended fusion surgery, and including psychological treatment and substance abuse counseling "as recommended by Dr. Winkler."

In their petition, respondents do not dispute the findings of prospective liability for the L5-S1 fusion, or for additional medical expense from June 4, 2006, to the date of hearing. They dispute the ALJ's awards for PPD to the right ankle and whole body, and the prospective awards for psychological treatment and substance abuse counseling. Respondents argue that they were denied due process, because the disputed awards were not placed in issue at the hearing. In the preliminary discussions at the hearing the following questions and answers took place between the ALJ and applicant's attorney:

ALJ MITCHELL: And you are claiming medical expenses from June 4th, '06, and inclusive to the present?

MR. HUDEC: Yes, Your Honor. And secondarily asking for an order approving a payment of Dr. Christopher Sturm on a one-level fusion on this gentleman. No temporary total disability, no permanent partial disability claimed at this time, and an interlocutory order if you could be so kind, Your Honor.

ALJ MITCHELL: For prospective medical treatment per Dr. Sturm?

MR. HUDEC: Yes, Your Honor, S-t-u-r-m.

(TR p. 9)

There were later statements from the ALJ describing the issue as "nature and extent of disability," but when these statements are read in context, it is clear that respondents could reasonably have understood them as relating only to the claims for prospective surgery and additional medical expense (see pp. 19 & 20 of the hearing transcript).

While respondents' due process argument might be characterized as technical in nature, it is an argument with legitimate basis in fact and law. Respondents had a right to seasonably know the charges or claims proffered by the applicant, and the right to meet such charges or claims by competent evidence. Nelson Mill and Agri-Center, Inc. v. ILHR Dept., 67 Wis. 2d 90, 96, 226 N.W.2d 435 (1975). The discussion of the issues that took place prior to testimony at the hearing held on February 26, 2008, specifically excluded the issues of temporary disability and permanent disability. Accordingly, the ALJ's findings relative to temporary disability and permanent partial disability will be set aside. Those issues will remain open, with opportunity for further hearing should either party desire it. The ALJ's finding that respondents are prospectively liable for the applicant's proposed fusion surgery at L5-S1, as well as the finding of liability for additional medical expense accrued between June 4, 2006, and the date of hearing, are at this point uncontested and will be affirmed.(1 ) Also uncontested is a prior overpayment of temporary disability in the amount of $2,052.80, which may be offset against any future award for temporary disability or permanent disability.

The additional medical expenses accrued to the date of hearing are MHS Physician Services in the amount of $7,847.90; Mercy Health System in the amount of $19,212.88; Community Chiropractic Center in the amount of $1,176.00; and reimbursement to the applicant for prescription drug expense in the amount of $2,114.01.

Consistent with the ALJ's findings, the applicant claims that the prospective award for the fusion surgery should include compensation for "psychological treatment and substance abuse counseling." In support of this claim, the applicant cites Dr. Ronald Garcia's WKC-16-B dated February 23, 2006, in which Dr. Garcia referred the reader to clinic notes dated "12/19/05, 1/6/06, and 2/1/06" as identifying his diagnoses. Review of these notes does not reveal any mention of rehabilitation psychology or substance abuse counseling. Dr. Garcia's WKC-16-B lists rehabilitation psychology costs in the amount of $204 for evaluation, and $1,062 for "individual therapy sessions." These costs were specifically enumerated in the June 2006 limited compromise agreement, and paid pursuant to that agreement. There is mention in Dr. Gregory Love's clinic note of November 30, 2006, of the applicant being "...on a chronic pain narcotic agreement with Dr. Love." The commission can find no reference to psychological treatment or substance abuse counseling in Dr. Winkler's records.

Given the lack of clarity in the hearing record, and the fact that this matter will be left interlocutory for other issues, the commission exercises its discretion to also make the decision interlocutory with respect to the issues of additional medical expense for psychological treatment and/or substance abuse counseling, allegedly related to the work incident of November 2, 2004. The applicant may claim such additional expenses, but must prove that they are work-related.

Now, therefore, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay the following medical expenses, assuming they have not to date been paid: to MHS Physician Service the sum of Seven thousand eight hundred forty-seven dollars and ninety cents ($7,847.90); to Mercy Health System the sum of Nineteen thousand two hundred twelve dollars and eighty-eight cents ($19,212.88); to Community Chiropractic Center the sum of One thousand one hundred seventy-six dollars ($1,176.00); and to the applicant, as a reimbursement for prescription drug expense, the sum of Two thousand one hundred fourteen dollars and one cent ($2,114.01). Prospective liability is assessed to respondents for the applicant's proposed fusion surgery at L5-S1.

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed December 17, 2008
rauppje . wpr : 185 : 9 ND § 8.19

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission's partial reversal of the administrative law judge's decision was based on a due process legal determination, and a review of the written medical evidence. Credibility of the applicant's testimony was not at issue in the commission's determinations.

cc: Attorney David A. Hudec
Attorney Robert H. Zilske

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Footnotes:

(1)( Back ) As subsequently explained, any claimed medical expenses for rehabilitation psychology and/or substance abuse counseling, accrued or prospective, are contested and remain unresolved, with jurisdiction reserved regarding those claims.