DOREEN A DORO, Applicant

RES MFG CO, Employer

FIRST LIBERTY INS CORP, Insurer

Respondents RES Manufacturing Company and First Liberty Insurance Corporation submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 8, 2010. The applicant submitted an answer to the petition and briefs were submitted by the parties. The application for hearing claimed permanent total disability and medical expense relative to the conceded low back injury that occurred on July 12, 1999; however, the parties have stipulated to limit the current proceeding to the issues of medical expense incurred up to the date of hearing, and prospective medical expense.

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:

The applicant, whose birth date is October 28, 1974, sustained a conceded low back injury while working for the employer on July 12, 1999. Conservative treatment failed and Dr. Arvin D. Ahuja performed an L3-4 fusion on December 3, 1999. The surgery did not have a good result and the applicant's symptoms worsened despite additional conservative care.

Dr. Mehran Heydarpour has been involved with the applicant's treatment since August 1999. Dr. Heydarpour performed a laser guided L4-5 discectomy on September 5, 2001, and the same procedure at L5-S1 on June 23, 2003. Neither of these procedures has had a beneficial effect on the applicant's symptoms, and
Dr. Heydarpour continues to treat her with regular office visits and heavy doses of the narcotic medications Oxycontin and Percocet, with Lyrica (an anti-convulsant also prescribed for pain relief), and with Clonidine (an anti-hypertensive prescribed as a sedative and also to treat neuropathic pain). In a letter dated January 30, 2007, Dr. Heydarpour assessed permanent restrictions based on a functional capacities evaluation given on April 27, 2005. Those restrictions involve carrying up to 17 pounds but only rarely; carrying two to five pounds continually; no lifting from floor to waist or waist to eye; no repetitive walking and no squatting; avoidance of forward bending or twisting; and alternating between sitting and standing as needed. Dr. Heydarpour further opined that the applicant could not obtain gainful employment, and he assessed 30 percent functional disability. He recommended continued use of medication and possible invasive treatments that may include surgery or implantation of neuroaxial analgesia (morphine pump).

The applicant has been found eligible for Social Security Disability Income, and as previously noted, she submitted an application for permanent total disability that the parties have stipulated to leave open for future determination.

Respondents petitioned and assert that Dr. Heydarpour's ongoing treatment, particularly the heavy doses of narcotic pain medication, constitute unreasonable and unnecessary medical treatment. Respondents additionally assert that consistent with the medical opinion of their reviewing physician, Dr. Sridhar Vasudevan, the applicant should be ordered to obtain psychiatric/psychological evaluation and return to restricted work; or in the alternative, an independent medical examination should be ordered for the purpose of evaluating the applicant's ongoing treatment regimen.

Dr. Heydarpour recommended a continuance of his ongoing treatment that places heavy reliance upon prescription medication. Dr. Vasudevan not only opined that the applicant is in need of psychiatric/psychological consultation, but additionally opined that Dr. Vasudevan's prescription medication regimen was medically inappropriate, and that the applicant exhibited signs of secondary gain.  Dr. N. M. Reddy examined and evaluated the applicant at her attorney's request on August 30, 2004, and he recommended psychiatric consultation, an inpatient chronic pain management program, and management of probable narcotic dependency. At the insurer's request, Dr. Jacques Hussussian examined and evaluated the applicant on January 22, 2003. Dr. Hussussian opined that the treatment the applicant had received up to his examination date had been appropriate, but that the applicant had reached a healing plateau with permanent disability and permanent restrictions, and that her only treatment option was additional surgery that he would be reluctant to recommend.

Consistent with the opinions of Drs. Vasudevan, Reddy, and Hussussian, the applicant's low back condition is found to have reached an impasse under
Dr. Heydarpour's treatment. A chronic pain management program and psychological or psychiatric consultation are deemed to be reasonable and necessary alternative treatments that should be substituted for Dr. Heydarpour's care. However, given the circumstances that involve the commission's resolution of this controversy over a year subsequent to the hearing date, respondents will be found retroactively and prospectively liable for Dr. Heydarpour's treatment, including prescription medical expense, up until the time a physician administering the chronic pain management treatment prescribes a different regimen that takes into account management of the prescription medications. Cleary, if the applicant's medications are to be reduced that must be accomplished in a medically responsible and appropriate fashion. The applicant and respondents are urged to reach mutual agreement on choice of medical practitioners for the pain management program and the psychological or psychiatric consultation. If agreement cannot be reached then Dr. Vasudevan will be authorized to make these referrals. After healing plateaus from the pain management and psychological/psychiatric treatments have been determined by the practitioners, the issue of subsequent medical treatment expense will remain open.

The exact amounts due for accrued medical expense, including reimbursement for the applicant's out-of-pocket medical expenses, are unclear from the record before the commission. Accordingly, this order will be left interlocutory with respect to the specific amounts due. The applicant shall submit a new accounting of all medical expenses accrued up to the date the chronic pain management treatment begins, and the insurer shall make immediate payment, absent any disagreement over the accuracy of such accounting. In the event of disagreement over the accuracy of the accounting, opportunity for hearing on that particular issue shall be available. In order to make the commission's order appealable, respondents shall be ordered to pay $100.00 to the applicant towards his out-of-pocket medical expenses.

The fee arrangement between the applicant and his attorney, as it relates to medical expenses, is not addressed in the record before the commission. Wis. Adm. Code ch. DWD 80.43(2), provides that attorney fees are not allowed on medical expenses to the extent that other sources, such as group insurance, are available to pay such expense. Attorney fees are not normally allowed on medical expenses, even if not insured by other sources, when attorney fees can be assessed against disability compensation paid in addition to medical expense. The applicant has claimed disability compensation, and that claim is to be resolved in subsequent proceedings. The commission therefore declines to make any findings regarding attorney fees in this order.

NOW, THEREFORE, this

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 to the applicant towards his out-of-pocket medical expense the sum of
One hundred dollars ($100.00).

Jurisdiction is reserved in accordance with the above findings.

Dated and mailed November 11, 2010
dorodor : 185 : 5 ND6 1.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission's partial reversal of the administrative law judge's decision was based on analysis of the written medical records and opinions. The commission had no disagreement with the administrative law judge's credibility impressions of the applicant.

cc: Attorney Michael Gillick
Attorney Peter Topczewski

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