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

TODD KRUMNOW, Applicant

CINTAS CORP, Employer

XL SPECIALTY INSURANCE COMPANY
C/O CAMBRIDGE INTEGRATED SERVICES GROUP, Insurer

FIDELITY & GUARANTY INS CO
DISCOVER RE MANAGERS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-016493


The applicant filed an application for hearing alleging that he hurt his back lifting floor mats on December 19, 3003 and on August 3, 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on February 21, 2007. Prior to the hearing, the employer and its insurers for the two dates of injury (collectively, the respondents) conceded jurisdictional facts, the occurrence of compensable injuries on dates alleged, and an average weekly wage of $732.75. The respondents also paid temporary disability until January 22, 2006 based on a medical opinion that the applicant had reached a healing plateau earlier that month. At issue before the ALJ was the nature and extent of disability beyond that conceded, the respondents' liability for medical expenses, and the respondents' liability for the future treatment expense.

On September 11, 2007, the ALJ issued his decision. The applicant filed a timely petition for commission review. Briefing on appeal to the commission was held in abeyance until earlier this year, at the request of the parties.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born in September 1979. He began working for the employer in July 2000. The employer is a uniform supply company, and the applicant worked in the facilities services division. The applicant's job required him to drive out to businesses and supply them with clean floor mats, paper towels, hygiene products and janitorial products.

The applicant testified that a stack of towels might weigh 40 to 50 pounds. A stack of floor mats weighed 75 to 100 pounds. The applicant was paid by the number of stops he made, so he worked quickly. He denied treating for back pain, or having any back pain at work, or after working, before the first date of injury. Transcript, pages 26, 30.

On December 19, 2003, the applicant felt pain in his lower back as he was carrying a stack of mats he estimated weighed 75 to 100 pounds. He reported the injury to his employer that same day, and also sought treatment with a chiropractor, to whom he complained of lower back and hip pain.

Specifically, the applicant saw Thomas Zastrow, D.C., on December 19, 2003, who noted:

low back pain - onset today Pt was lifting floor mats & towels for food service and felt LBP. Normally Pt lifts floor mats ranging from 75-100 lbs. Pt has been doing this work for 3 1/2 -4 years. No previous LBP prior to this episode.

Dr Zastrow's diagnosis was lumbosacral sprain or strain. A pain diagram drawn by the applicant shows lower back and right hip pain. His plan was to have the applicant follow with a series of visits over the next few weeks.

The employer then had the applicant follow at Aurora Health Clinic where he saw Charles Gorie, PA-C, on December 22, 2003. Mr. Gorie reported the applicant had had back pain since November 29, 2003, and that the applicant:

...believes that [he] injured his back while at work lifting floor mats. Patient states he believes he was twisting and bending at the same time.

The applicant complained of a dul1 achy pain with sitting, lying and standing, and continuous pain with lifting, bending, and walking. He complained, too, of a back spasm that was more pronounced on the right side than the left. He denied radiation to the legs, however. Mr. Gorie put the applicant on bedrest, but encouraged him to move around the house as much as possible. He prescribed medication as well.

When the applicant saw Mr. Gorie again, about two days later, he told the doctor his pain had decrease significantly, and that he still had an occasional spasm. He did describe a persistent dull ache, with prolonged sitting and standing. On examination, the doctor noted an improved range of motion, with decreased spasm. He discharged the applicant from care. Mr. Gorie released the applicant to work, subject to restrictions of no overhead lifting or lifting over 20 pounds as of December 26. He permitted full duty as of December 29, 2003.

Indeed, the applicant returned to work on December 26, 2003, at full duty. He still had lower back pain at the end of a long day. He took anti-inflammatories, apparently on prescription from is family doctor, Dr. Spiering. The record indicates that there was little if any back treatment between December 23, 2003 and August 3, 2005.

On August 3, 2005, the applicant was doing a lot of his usual bending and lifting to pick up floor mats. He felt back pain--it came on suddenly--which was worse than it had been after the prior injury. He informed the employer of his injury, and the employer sent out a helper.

The applicant returned to the Aurora Medical Clinic on August 4, 2005, treating on this occasion with Nancy Petro, M.D. She reported complaints of "acute exacerbation of low back pain with ongoing chronic back pain that has persisted for some length of time." She noted, too, treatment 11/2 years earlier for an acute episode of back pain. She noted, too, periodic recurrence of back pain requiring him to use medication he got from his personal physician. Dr. Petro added:

He noted that yesterday he had a very heavy days work with a lot of load. He had a helper, but he was still extremely busy, had a long day and he had very severe low back pain in the middle of the afternoon while working. His job is delivery for Cintas, and this can be very heavy, awkward, difficult job lifting more than 50 pounds at a time, doing all of the delivery of towels, paper products, uniforms as needed. He states that yesterday the pain began late morning and progressed all through the rest of the day. He went home and did take his pain medicine and his muscle relaxant. With a muscle relaxant, he was able to sleep last night, but because of pain when he awoke this morning and ongoing discomfort, he was referred to clinic.

The applicant told the doctor he had back pain on a very, very regular basis, "at least once or twice a week, which he dates back to a back injury in the past." He currently had pain in the mid lower back area, and a knotting sensation higher in the right flank region. He had pain with straight leg raising on the right. The doctor felt he should be off work because of his pain medication and muscle relaxants, but recommended physical therapy.

When the applicant saw Dr. Petro again on August 9, he had been attending his physical therapy and was feeling better, though he still had some back pain. The doctor allowed him to work with restrictions, but no restricted duty work was available with the employer.

On August 15, 2005, the applicant was still feeling pain, though less than previously, and the doctor encouraged him to increase his activities at home, so he could be returned to work. On August 25, the doctor reduced his lifting limit from ten pounds to 20 pounds, and had him resume physical therapy. When he continued to have pain as of September 6, 2005, the doctor ordered an MRI scan.

The interpreting radiologist reported that the MRI showed:

At the L4-5 level, there is a mild to moderate broad-based disk bulge with a superimposed, small, posteriorly extruded midline/right paramidline disk with resultant mild mass effect on the thecal sac.

On September 20, 2005, Dr. Petro reported:

...He was initially injured August 3rd and is seen in follow-up. He finally did have his MRI scan of the lumbar spine and this shows a small, but significant herniated disc at L4-L5 with associated disc bulging. He has continued to have pain in his lower back.

Given the MRI finding, Dr. Petro recommended the applicant see a surgeon, Cully White, D.O. (whose notes are at exhibit G), for an evaluation of the herniated disc.

Dr. White saw the applicant on September 28, 2005. He noted a history of an onset of back pain occurring when the applicant lifted industrial mats at work on August 3, 2005, with worsening symptoms over the next 24 hours. Dr. White also noted the applicant's history of a prior work-related injury in December 2003, which required the applicant to be off work for two days. The applicant told the doctor his current symptoms were constant low back pain and bilateral hip pain, and increased pain with lumbar flexion and with sitting for any length of time. Noting the MRI, Dr. White diagnosed lumbar and bilateral hip pain with evidence of disc desiccation along with a disc bulge and annular tear at the L4-5 level,

Dr. White also recommended conservative treatment including lumbar epidural steroid injections, and possibly an aggressive exercise plan, and gave the applicant the appropriate referrals. The doctor kept the applicant off work until October 12, 2005, when he allowed him to return with 10-pound lifting limit.

By the time the applicant saw Dr. White again in late October 2005, he had received one lumbar epidural steroid injection, which provided little relief. Dr. White recommended another injection, and opined if his pain continued, a discogram might be warranted.

The injections were done by Jamie Edwards, M.D., in the fall of 2005. Her treatment notes list an assessment of disc bulge with extrusion. Her notes documenting the injections also diagnose radiculopathy and degenerative spine disease. When the applicant experienced continuing pain, and another injection did not help, Dr. White recommended he go ahead with a discogram.

The discogram was done by John Brusky, M.D., on February 1, 2006. His pre-discogram diagnosis was "chronic axial low back pain since a work injury in August of 2005." His overall interpretation of the discogram results was "L4-5 is the most significant pain generator with posterior tear without obvious extra disc extravasation with severe concordant low back pain and hip pain produced..." His post-discogram diagnosis was "discogenic low back pain with concordant pain produced at modest injection pressures at L4-5."

When Dr. White saw the applicant on February 1, 2006, he noted that the lumbar discogram showed evidence of concordant pain at the L4-5 level., which he opined correlated well with the findings shown on the MRI. The doctor discussed an L4-5 fusion or alternatively, a disc arthroplasty (replacement) with the applicant. The applicant could not get insurance approval for the arthroplasty, so he elected to go ahead with the fusion procedure.

On March 14, 2006, chest x-rays revealed that the applicant had sarcoidosis, causing a delay in his surgery. Dr. White ultimately performed an anterior lumbar interbody fusion on April 20, 2006. During the course of his follow-up treatment, the applicant told Dr. White he was generally pleased with his surgery. For example, on January 5, 2007, the applicant told the doctor he did not have any leg pain or paresthesias, but did have some increased lumbar discomfort with lumbar extension. While a CT scan showed stable post operative changes, and good position of the hardware:

It was discussed with Mr. Krumnow that treatment at this point in time for him would include a continued conservative course of treatment with continuation of physical therapy. However, should Mr. Krumnow experience increased discomfort or no improvement in his discomfort, it would be reasonable to consider neurosurgical intervention with a posterior stabilization to assist with his residual discomfort.

The most recent set of work restrictions from Dr. White is dated February 14, 2007. It sets a 20- to 25-pound lifting limit. Exhibit A. The applicant was still off work as of the date of the hearing.

Regarding causation, nature and extent of disability, the parties have submitted expert medical opinion from three sources.

Dr. Petro submitted a practitioner's report on form WKC-16-B, which lists both the December 19, 2003 and August 3, 2005, dates of injury. The report, referring to Dr. Petro's office notes, opines that the events of those days caused the applicant's disability both directly and by an appreciable period of workplace exposure that was at least a material contributory causative factor in the condition's onset or progression. Dr. Petro deferred to Dr. White as to permanent restrictions, extent of disability, and need for further treatment.

Dr. White completed two practitioner's reports. The first predated the applicant's surgery, and is dated April 18, 2006. See exhibit H. It lists both the December 19, 2003 and August 3, 2005 dates of injury, and describes the work activity as "patient injured back while lifting heavy floor mats." Dr. White referred back to his office notes for a description of the disability and diagnosis. The most recent note attached to his report--itself dated February 1, 2006--diagnoses

"lumbar pain and bilateral hip pain following a work related injury. Lumbar discogram is positive at the L4-5 level."

Dr. White indicated that the work incidents on December 19, 2003 and August 3, 2005, caused disability both directly (with respect to the disc bulge/annular tear) and by precipitation, aggravation, and acceleration of a pre-existing degenerative condition beyond normal progression (with respect to the disc desiccation). Dr. White referred to these conditions--annular tear/disc bulge and disc desiccation--when summarizing the findings in the MRI in his February 1, 2006 treatment note.

In his April 2006 practitioner's report, Dr. White opined that it was too soon to rate permanency, though some would result, noting that surgery was required. He estimated that the applicant would be subject to temporary work restrictions for approximately three months post surgery. He added that the applicant had no previous permanent disability.

Dr. White's second report is dated January 27, 2007. Exhibit G. This again lists the work incidents on both December 19, 2003 and August 3, 2005. He opined that both incidents contributed to the applicant's current condition, with the December 2003 incident accounting for 25 percent and the August 2005 incident accounting for 75 percent. He added:

Office notes from initial visit document symptoms that did not resolve [post] initial injury. Cause of symptoms attributed to both events in above apportion percentage.

Dr. White again indicated that the work events caused the applicant's disability directly and by aggravation, acceleration, and precipitation of a pre-existing degenerative condition beyond normal progression. Noting the applicant was status post lumbar fusion, he again opined it was too soon to rate permanent disability. He thought the applicant's prognosis was good, but did indicate he "may need additional P.T. and medication."

The respondent retained Stephen E. Barron, M.D., as its medical examiner. He examined the applicant on January 11, 2006, or a few months before the lumbar fusion surgery. He noted the development of back pain on August 3, 2005, when the applicant attempted to lift a stack of mats weighing 50 to 60 pounds off the floor. Dr. Barron also noted the December 2003 injury, and that the applicant had returned to work without restrictions following that injury though he had occasional stiffness. His report mentions the September 13, 2005 MRI--which he summarized as showing "a mild to moderate broad-based disc bulge with superimposed, small, superiorly extruded midline and right para midline disc with resulting mild mass effect on the thecal sac" but observed "there was no mention of any nerve root compression."

On physical examination, Dr. Barron noted 45 degrees of lumbar flexion, 40 degrees of lumbar extension, and 40 degrees of right and left rotation. He noted negative straight leg-raising tests, that the applicant walked without a limp, and a normal neurological exam without tenderness or spasm.

Dr. Barron also noted that at the time of his examination, the applicant was attending physical therapy twice a week, was restricted to sedentary work, and was taking Vicodin. The doctor also noted the applicant had daily low back pain with some radiation to the knee, and that his pain complaints were aggravated by sitting, standing, and walking too long.

Dr. Barron's diagnosis and prognosis was

...[the applicant] sustained a lumbar sprain at the time of his work incident of August 3, 2005. He also has degenerative disc disease of the lumbar spine at L4-5. At the present time he has no objective findings on examination. In my opinion, he has an excellent prognosis.

Noting the lack of objective findings, Dr. Barron also opined the applicant could return to work without restriction, did not require further treatment, and was at maximum medical improvement. He opined the applicant did not have permanent partial disability.

2. Discussion and award.

Like the ALJ, the commission credits Dr. White's opinion on the cause of the applicant's disability and need for treatment. The applicant, whom the ALJ credited, testified that he did not have back pain before December 19, 2003. Indeed, Dr. Zastrow's December 19, 2003 treatment note reports that the applicant had no previous back pain.

Mr. Gorie's December 22, 2009 treatment note, of course, refers to pain since November 29, 2003, or about three weeks before the first injury on December 19, 2003. However, the commission concludes that the reference to pain since November 29, 2003 was a mistake. Mr. Gorie's typewritten note otherwise refers to pain with an injury lifting mats. The handwritten note for the treatment that day (December 22) says nothing about November 29, neither in the part completed by a nurse or the part presumably completed by Mr. Gorie. Nor does a statement of injury the applicant completed at the clinic on December 22 mention pain since November 29. Rather, both the handwritten note and the statement of injury document a December 19, 2003 date of injury. Exhibit J. The commission is persuaded that the applicant's back injury began with a lifting injury on December 19, 2003 as he testified.

Dr. Barron bases his opinion that the work exposure caused a sprain from which the applicant healed without disability by January 20, 2006 in part on the lack of objective findings, though he does note the applicant's pain complaints and the findings on MRI. Dr. Petro--who practices at the Aurora Clinic where the employer sent the applicant--referred the applicant to Dr. White based on his pain complaints. Based on the applicant's symptomatic complaints, he underwent the MRI and discogram, both of which showed pathology. Indeed, he has undergone considerable invasive treatment--including a discogram and fusion surgery--all starting after the second injury. In sum the commission concludes that the applicant injured his back in the two mat-lifting incidents, and that those incidents caused the need for his fusion surgery and resulted in his disabling current condition.

On appeal, the respondents raise the question of apportionment of liability between the December 2003 and August 2005 dates of injury. Under Wis. Stat. § 102.175(1), when two accidental injuries contribute to a physical condition resulting in the payment of benefits, liability shall be apportioned according to the proof of relative contribution by the injuries. In this case, the insurers for both the December 2003 and August 2005 dates of injury are parties and appeared at the hearing.

The commission concludes the record warrants apportioning the applicant's disability award and the post-August 2005 medical expenses. Specifically, the commission adopts Dr. White's conclusion that the December 19, 2003 injury accounts for 25 percent of the applicant's current disabling condition, while the August 3, 2005 injury accounts for 75 percent. Not only does Dr. White's opinion provide a persuasive basis for apportionment, but Dr. Petro also refers to both injuries in her opinion. Apportionment is further supported by the applicant's credible and consistent complaints of continuing stiffness or pain from the time of the December 2003 injury, as documented in detail in Dr. Petro's August 4, 2005 treatment note. The applicant, too, requests apportionment in his brief.

The commission further concludes the applicant has remained in a healing period from the two injuries, and is entitled to compensation for the temporary disability, to at least the date of hearing. He is therefore entitled to compensation for temporary total disability from January 22, 2006 (when the respondents stopped paying temporary total disability compensation) to March 14, 2006 (when the unrelated sarcoidosis condition began to delay treatment for the work injury). He is also entitled to temporary total disability compensation from April 20, 2006 (when he resumed treatment for the work injury and underwent the fusion surgery) to February 21, 2007 (the date of the hearing before ALJ Martin).

Both insurers admitted, in the answers filed for their respective dates of injury, the $732.075 weekly wage alleged by the applicant. Accordingly, the commission concludes that the temporary total disability rates with respect to both dates of injury is $488.50 (two-thirds of $732.50).

From January 22 to March 14, 2006 is a period of 7 weeks and 2 days. At the weekly rate of $488.50, the applicant is entitled to compensation for temporary total disability for that period in the amount of $3,582.33. From April 20, 2009 to February 21, 2007 is a period of 43 weeks and 5 days. At the weekly rate of $488.50, the applicant is entitled to compensation for temporary disability for that period in the amount of $21,412.58. In total, the amount to which the applicant is entitled for temporary disability is $24,994.92.

However, that amount is subject to a deduction for amounts paid under a non-industrial disability policy paid during the periods of temporary total disability by a non-industrial insurer, Unum/Provident. Specifically, the commission reads exhibit 3 to establish that Unum/Provident paid short term disability in the gross amount of $279.00(1) for the period from April 21 to 27, 2006, and $167.40 for the period from April 28, 2006 to May 2, 2006. Exhibit 3 also indicates that from May 2, 2006 to February 2, 2007, Unum/Provident paid long term disability benefits the gross monthly amount of $1,548.29, totaling $13,934.61. The commission further infers that, after the hearing, Unum/Provident made a payment attributable to the two week, four day period form February 2 to 21, 2007 in the amount of $952.92.(2) In all, the amount deducted from the applicant's award for payment to Unum Provident in reimbursement under Wis. Stat. § 102.30(7) is $15,333.93.

The net award for temporary total disability, then, is $9,660.99. The applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the additional amount awarded, or $1,932.20. That amount, plus costs of $1,408.12 shall be paid to the applicant's attorney within 30 days. The remainder, $6,320.67, shall be paid to the applicant within 30 days.

Consistent with the above, the amounts due to the applicant for temporary disability, to his attorney for fees and costs, and to UNUM/Provident shall be apportioned between the December 2003 and August 2005 dates of injury, so that the employer and Fidelity & Guaranty Insurance are liable for 25 percent and the employer and XL Specialty Insurance Company are liable for 75 percent.

The applicant also incurred reasonable and necessary medical expenses, set out in exhibits C and D(3), to cure and relieve the effects of his work injury. On appeal, the respondents contend that some of the items of expenses documented in exhibit C were incurred for conditions unrelated to the work injury. The applicant acknowledges that a single item of expense, a May 17, 2006 x-ray charge billed in the amount of $319.75 by Aurora St. Lukes Medical Center for which a non-industrial health insurer (United Healthcare) paid $271.79, was incorrectly added to the amount claimed by the applicant. See exhibit C, "St. Lukes Medical Center" tab.

Otherwise, the applicant asserts, while the itemized billing statements that he submitted to support his claim do list some unrelated charges, he did not include those charges among the expenses for which he now claims compensation on the face of his Medical Treatment Statements (form WKC-3). In other words, while the itemized billings list unrelated charges, the applicant asserts, he is not demanding payment for them and the respondents have not shown that he has. The applicant notes, too, that the respondents did not object to exhibits C or D at the hearing when the exhibits were received.

The commission agrees with the applicant on this point. The fact that the applicant supports his claim for the medical expenses related to his work injury by attaching itemized billings that list all the treatment the applicant received from a given provider is in itself neither suspicious nor unreasonable. The itemized billings do not themselves state the amount claimed; they are offered in support of the claim. If the respondents had a concern with the format of exhibits C and D, they could have raised it when the exhibits were offered into evidence. While the applicant of course has the burden of proof with respect to his medical expenses, he has met that burden at the hearing--at least absent a showing by the respondents that a particular expense for which the applicant actually seeks payment or reimbursement was not related to the work injury.

Accordingly, the employer and Fidelity & Guaranty Insurance are liable for the medical expenses documented in exhibit C under the December 19, 2003, date of injury. The employer and Fidelity & Guaranty Insurance are liable for 25 percent of the medical expenses documented in exhibits C and D under the August 3, 2005 date of injury (after deducting $271.79 from the amount owed to United Healthcare). The employer and XL Specialty Insurance Company are liable for 75 percent of the medical expenses documented in exhibits C and D under the August 2005 injury (after deducting $271.79 from the amount owed to United Healthcare).

The commission shall also order Fidelity & Guaranty to reimburse Cambridge Integrated Services Group the sum of $2,175.49 (which is 25 percent of the expenses paid by Cambridge as documented in exhibit D under the August 3, 2005 date of injury) and $472.60 (which is all of the expenses paid by Cambridge as documented in exhibit C under the December 19, 2003 date of injury). The commission orders this payment on the assumption that Cambridge Integrated Services Group made those payments solely on behalf of XL Specialty Insurance Company. If this assumption is inaccurate, the employer and its insurers may adjust the amount of this particular reimbursement item among themselves.

The next issue is the applicant's request for a prospective order for treatment under Wis. Stat. § 102.18(1)(b). The applicant testified that in January 2007 Dr. White recommended a CAT scan followed by a possible operation to "have the screws tightened in my back or that we have the disc replaced above the fusion." Transcript, page 46. However, Dr. White's January 5, 2007 treatment note says only the applicant may need another fusion, while his January 27, 2007 practitioner's report says the applicant's prognosis was good, but that he "may need additional P.T. and medication."

In the commission's view, the record does not support an order prospectively directing payment for future treatment, as opposed to simply retaining jurisdiction for future awards for medical expenses if the applicant undergoes additional treatment for his work injury. Of course, if Dr. White offers a more definite treatment recommendation, the applicant may reapply for a prospective order under Wis. Stat. § 102.18(1)(b) if necessary.

Otherwise, the record, including the expert medical opinion of Dr. White, amply supports leaving this order interlocutory to permit additional awards of permanent disability, future temporary disability, and additional medical expenses as may be warranted.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

INTERLOCUTORY ORDER

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 Fidelity & Guaranty Insurance Company shall pay all of the following:

1. To the applicant, Todd Krumnow, the sum of One thousand five hundred eighty dollars and seventeen cents ($1,580.17) in disability compensation and Three hundred seventy-three dollars and eighty-one cents ($373.81) in out-of-pocket medical expenses (including medical mileage).
2. To the applicant's attorney, Robert Menard, the sum of Four hundred eighty-three dollars and five cents ($483.05) in fees and Three hundred fifty-two dollars and three cents ($352.03) in costs.
3. To Midwest Neurosurgical Associates, SC (Dr. Cully White), Four thousand eight hundred five dollars and eighteen cents ($4,805.18) in medical treatment expense.
4. To Dr. Susan Hill, Seven dollars and fifty cents ($7.50) in medical treatment expense.
5. To RS Medical, Three hundred eighty-seven dollars and nineteen cents ($387.19) in medical treatment expense.
6. To Associated Surgical & Medical Spec., Ninety-two dollars and fifty cents ($92.50) in medical treatment expense.
7. To St. Luke's Medical Center, Thirty-four dollars and no cents ($34.00) in medical treatment expense.
8. To Franklin Rehabilitation, Thirty-eight dollars and seventy-five cents ($38.75) in medical treatment expense.
9. To ATI- Athletic & Therapeutic Institute, Seven hundred fifty-three dollars and seventy-seven cents ($753.77) in medical treatment expense.
10. To Innovative Pain Care (Dr. J. Brusky), One thousand eighty dollars ($1,080.00) in medical treatment expense.
11. To Anes. Assoc. of WI (Dr. Q. Chen), One hundred eighty-seven dollars and forty-three cents ($187.43) in medical treatment expense.
12. To Dr. D. Harrington, Ten dollars and forty-six cents ($10.46) in medical treatment expense.
13. To Dr. K. Brahm, Twenty-three dollars and seventeen cents ($23.17) in medical treatment expense.
14. To Dr. R. Waghray, Forty-two dollars and forty-eight cents ($42.48) in medical treatment expense.
15. To Dr. G. Neitzel, One hundred sixteen dollars and fifty cents ($116.50) in medical treatment expense.
16. To Dr. S Amoli, Thirty dollars and sixty-nine cents ($30.69) in medical treatment expense.
17. To United Healthcare, in reimbursement of medical expense paid, the sum of Sixteen thousand eight hundred nine dollars and twenty-eight cents ($16,809.28) as documented in exhibit D under the August 3, 2005 date of injury, and One hundred nineteen dollars and forty-nine cents ($119.49) as documented in exhibit C under the December 19, 2003 date of injury.
18. To Cambridge Integrated Services Group, in reimbursement of medical expense paid, the sum of Two thousand one hundred seventy-five dollars and forty-nine cents ($2,175.49) as documented in exhibit D under the August 3, 205 date of injury, and Four hundred seventy-two dollars and sixty cents ($472.60) as documented in exhibit C. under the December 19, 2003 date of injury.
19. To Techhealth, Inc., One hundred fifty dollars ($150.00) in reimbursement of medical expenses paid.
20. To Unum/Provident, Three thousand eight hundred thirty-three dollars and forty-eight cents ($3,833.48) in reimbursement of disability compensation paid.

Within 30 days, the employer and XL Specialty Insurance Company shall pay all of the following:

1. To the applicant, Todd Krumnow, the sum of Four thousand seven hundred forty dollars and forty-four cents ($4,740.44) in disability compensation and One thousand one hundred twenty-one dollars and forty-one cents ($1,121.41) in out-of-pocket medical expenses (including medical mileage).
2. To the applicant's attorney, Robert Menard, the sum of One thousand four hundred forty-nine dollars and fifteen cents ($1,449.15) in fees and One thousand fifty-six dollars and nine cents ($1,056.09) in costs.
3. To Midwest Neurosurgical Associates, SC (Dr. Cully White), Fourteen thousand four hundred fifteen dollars and fifty-three cents ($14,415.53) in medical treatment expense.
4. To Dr. Susan Hill, Twenty-two dollars and fifty cents ($22.50) in medical treatment expense.
5. To RS Medical, One thousand one hundred sixty-one dollars and fifty-six cents ($1,161.56) in medical treatment expense.
6. To Associated Surgical & Medical Spec., Two hundred seventy-seven dollars and fifty cents ($277.50) in medical treatment expense.
7. To St. Luke's Medical Center, One hundred and two dollars and no cents ($102.00) in medical treatment expense.
8. To Franklin Rehabilitation, One hundred sixteen dollars and twenty-five cents ($116.25) in medical treatment expense.
9. To ATI- Athletic & Therapeutic Institute, Two thousand two hundred sixty-one dollars and thirty cents ($2,261.30) in medical treatment expense.
10. To Innovative Pain Care (Dr. J. Brusky), Three thousand two hundred forty dollars and no cents ($3,240.00) in medical treatment expense.
11. To Anes. Assoc. of WI (Dr. Q. Chen), Five hundred sixty-two dollars and twenty-nine cents ($562.29) in medical treatment expense.
12. To Dr. D. Harrington, Thirty-one dollars and thirty-seven cents ($31.37) in medical treatment expense.
13. To Dr. K. Brahm, Sixty-nine dollars and fifty cents ($69.50) in medical treatment expense.
14. To Dr. R. Waghray, One hundred twenty-seven dollars and forty-four cents ($127.44) in medical treatment expense.
15. To Dr. G. Neitzel, Three hundred forty-nine dollars and fifty cents ($349.50) in medical treatment expense.
16. To Dr. S. Amoli, Nine-two dollars and seven cents ($92.07) in medical treatment expense.
17. To United Healthcare, Fifty thousand four hundred twenty-seven dollars and eighty-three cents ($50,427.83) in medical treatment expense.
18. To Techhealth, Inc., Four hundred fifty dollars and no cents ($450.00) in reimbursement of disability compensation paid.
19. To Unum/Provident, Eleven thousand five hundred forty-five cents ($11,500.45) in reimbursement of disability compensation paid.

Jurisdiction is reserved for further orders and awards as may be appropriate and consistent with this order.

Dated and mailed July 16, 2009
krumnot . wrr : 101 : 1  ND ?? 3.43, 5.13, 5.19, 5.46

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission modified ALJ Martin's order to provide for an apportionment of compensation, to eliminate an item of medical expense claimed in error, to award compensation only to the date of the hearing, to eliminate language prospectively ordering payment of future disability compensation and future treatment expense, and to calculate the deduction for concurrent disability payments made by a non-industrial insurer.

The commission explained above the rationale behind the apportionment, the elimination of the item of medical expense, and the elimination of the order for advance payment of treatment expense. Regarding the prospective order for future disability compensation, an award for the payment of temporary disability may not be made to continue indefinitely into the future.(4) In practice, the commission normally does not award temporary disability beyond the date of hearing, even where there is an expectation the worker will remain in a healing period and entitled to temporary disability compensation. Of course, employers and their insurers are liable under the workers compensation law for compensation due to disability from a work injury, and they are potentially liable for penalties if they stop payment without reason.

ALJ Martin's order provided that the respondents make "appropriate adjustments under the law for short term and long term disability payments." Because the applicant asked for affirmance of ALJ Martin's order, the commission infers he consents to a deduction from his temporary disability award for payment to Unum/Provident under Wis. Stat § 102.30(7). The commission's order calculates the amount of that deduction to the date of hearing in an attempt to prevent a potential dispute on the issue arising in the future.

Because none of these changes were based on the credibility of the applicant, the only witness who testified before ALJ Martin, no credibility conference was held. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).

cc: Attorney Monika A. Hartl
Attorney Gesina M.C. Mentink


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Footnotes:

(1)( Back ) The commission uses the pre-tax or gross amount in making deductions for payments made by non-industrial disability insurers. Holborn v. Supervalue, Inc., WC Claim No. 2000009429 (LIRC, August 15, 2001); Hetchler v. EC Styberg Engineering Co., Inc., WC claim No. 2000-027319 (August 28, 2003). As noted in Neal & Danas, Worker's Compensation Handbook ? 5.13 (5th ed., 2008), an applicant may have to file amended returns to recoup the tax payments withheld from payments under the non-industrial policy.

(2)( Back ) The monthly rate $1,548.29 paid by Unum/Provident would work out to a weekly rate of $357.30 per week {($1,548.29 times 12)/52}. For 2.667 weeks, this is $952.92.

(3)( Back ) In its reply brief, the respondent notes that amended Medical Treatment Statement on form WKC-3 (exhibit D) was submitted less than fifteen days before the hearing, an apparent reference to Wis. Stat. ? 102.17(8). However, changes made in the amended statement do not appear to be particularly substantial. Perhaps for that reason, the respondent made no objection to exhibit D prior to receipt into evidence at the hearing. Transcript, pages 13 et seq. 4

(4)( Back ) Levy v. Industrial Commission, 234 Wis. 670, 675 (1940). See also McDuffy v. Kennedy Hahn TV & Appliance, WC Claim No. 2000-030626 (LIRC, October 8, 2002) and Irvine v. UPS, WC Claim No. 1998-021734 (LIRC, March 6, 2003), holding that the provision regarding prospective orders for treatment expense, Wis. Stat. ? 102.18(1)(b), as affected by 2001 Wis. Act 37, does not authorize prospective payment of disability indemnity.

 


uploaded 2009/08/10