ROBERT J KUSHNER, Applicant
GENERAL MOTORS CO, Employer
GENERAL MOTORS 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. This order is final only with respect to the issue of bad faith up to the date of hearing held on June 23, 2010. It is interlocutory with respect to any additional issues which may arise out of the applicant's occupational hearing loss claim.
February 28, 2011
kushnro:185:5 ND6 8.23; 9.24
BY THE COMMISSION:
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Careful review of the facts in this matter demonstrate that in delaying payment of the applicant's hearing loss claim respondent acted with lack of a reasonable basis for the delay, and with knowledge of or a reckless disregard of the lack of a reasonable basis.
In her testimony, respondent's Worker's Compensation Supervisor, Kelley Schultz,
gave four discernible reasons for refusing to pay the applicant's occupational
hearing loss claim that had been submitted with Dr. Sachs' WKC-16-B and attached
audiogram.(1) First, Schultz asserted that the claim was not compensable because
Dr. Sachs indicated on his WKC-16-B that he had not personally treated the
applicant for his hearing loss. However, Dr. Sachs also indicated on the
WKC-16-B that the applicant's exposure to loud noise over a 30-year period with
the employer was a material contributory factor in causing the applicant's
hearing loss, that the attached audiogram was an accurate reflection of the
applicant's current hearing loss, and that as a consequence the applicant needed
bilateral hearing aids. Schultz conceded that she was not aware of any worker's
compensation statute or policy preventing an applicant from relying upon a
medical opinion based on a medical records review; and in fact, she conceded
that the employer does on occasion rely upon opinions rendered in this manner.(2) Schultz's assertion that she believed Dr. Sachs' form WKC-16-B was inadequate because it was based on a medical records review is inconsistent with these concessions, and her assertion is therefore not credible.
Second, Schultz asserted that because Dr. Sachs had also diagnosed tinnitus on the WKC-16-B, and because for dates of injury on or after January 1, 1992, no compensation is paid for tinnitus,(3) she concluded that part of the applicant's claim was not compensable. However, she also conceded in testimony that she understood that the question of whether or not tinnitus is compensable would have no bearing on the compensability of the claim for the underlying hearing loss. Accordingly, her assertion that she reasonably believed the hearing loss claim could be defended on the basis that tinnitus had also been diagnosed similarly lacks credibility.
Third, Schultz asserted that in refusing to pay the claim she was relying upon legal advice. However, when asked at the hearing what that legal advice was, she was never able to articulate a response other than to refer to: "The records we already discussed, the WKC-16-B." The commission understands this to be a reference to the fact that Dr. Sachs submitted a WKC-16-B without having personally treated the applicant for hearing loss, an argument the commission rejected as noted above.
Fourth, Schultz asserted that denial was based on "investigation" of the claim. However, when asked what that investigation consisted of she referred to the applicant's "employment status" and "records from the facility." When questioned further, she could only refer to employment history that she conceded showed the applicant had worked in noisy employment for the employer for 30 years. She again referred to "legal counsel" when explaining what investigation she had performed, but again failed to articulate what reasoning she obtained from legal counsel.
When hearing regarding the applicant's hearing loss claim was ultimately held on November 2, 2009, respondent's counsel argued for the first time that the audiogram attached to Dr. Sachs' WKC-16-B was uncorroborated hearsay because it was not signed by the physician who administered the audiogram. The administrative law judge appropriately rejected that argument because Dr. Sachs certified the results of the audiogram, as he was authorized to do pursuant to Wis. Stat. § 102.17(1)(d). In rendering medical opinion of diagnosis, causation, and extent of disability, physicians frequently rely upon the results of medical testing procedures performed by other physicians or medical providers. When a physician exercises his/her statutory authority to certify such results in a WKC-16-B, those results do constitute prima facie evidence pursuant to Wis. Stat. § 102.17(1)(d).
Significantly, when copies of Dr. Sachs' WKC-16-B and attached audiogram were submitted to respondents in February of 2009, they chose not to obtain a medical opinion or audiogram from a physician of their choosing, which would have been the reasonable thing to do if they had any doubts concerning the accuracy of Dr. Sachs' WKC-16-B or attached audiogram. Instead, respondents made two written settlement offers, one in May 2009 and the other in September 2009. Neither of these offers identified any challenge to the accuracy of Dr. Sachs' opinion, including the audiogram. In fact, both letters referenced the 22.93 percent bilateral hearing loss calculated by the department in accordance with the results of the audiogram. Any objection the respondent had to Dr. Sachs' opinion, including the audiogram, was effectively waived by its failures to identify or communicate a specific objection to Dr. Sachs' opinion, or to obtain a medical opinion of its own.
Finally, respondent asserts that even assuming the finding of bad faith is affirmed, the circumstances of this case do not merit the maximum penalty of 200 percent, pursuant to Wis. Stat. § 102.18(1)(bp). However, when reviewing the respondent's knowing and unreasonable failure to pay the claim, or to obtain a medical opinion of its own, the commission could find no mitigating factor. The excuses offered for discrediting Dr. Sachs' WKC-16-B and the audiogram lack a reasonable basis in fact or law, and are inferred to be attempted rationalizations for deliberate and extended delay. The maximum penalty is therefore found to be appropriate.
cc:
Attorney James A. Meier
Attorney Renee Mehl
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