GERALD T KITZROW JR, Applicant

NEW RICHMOND TRANSPORT INC, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

GREENHECK FAN CORP, Employer

SENTRY INSURANCER A MUTUAL CO, Insurer

New Richmond Transport, Inc. and Society Insurance submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 29, 2010. The applicant and Greenheck Fan Corporation/Sentry Insurance Company submitted answers to the petition and briefs were submitted by the parties.

New Richmond Transport, Inc. and Society Insurance conceded that the applicant sustained a cervical spine injury arising out of and in the course of his employment with New Richmond Transport on August 23, 2007. However, the nature and extent of disability and liability for medical expense attributable to that injury are contested. Also contested is whether or not a compensable cervical spine injury was sustained in the course of and arising out of the applicant's employment with Greenheck Fan Corporation on March 18, 2008, and if so, what are the nature and extent of disability and liability for medical expense. Finally, New Richmond Transport/Society Insurance have raised an issue before the commission regarding the amount of reimbursement due a third party insurance carrier.

The commission has carefully reviewed the entire record in this matter and hereby affirms her Findings and Interlocutory Order, except as herewith modified:

Insert the following paragraph ahead of the first full paragraph on page 10 of the administrative law judge's decision:

The medical expense reimbursement claim totaling $83,498.56, claimed as being due WB/Fiserv/UMR (UMR), has allegedly been settled for a lesser reimbursement amount pursuant to a release given by UMR in a third party Marathon County Circuit Court proceeding. The circuit court allegedly affirmed this settlement pursuant to a Stipulation and Order signed by Circuit Court Judge Jill N. Falstad on September 30, 2010, and entered with the Marathon County Clerk of Courts on October 4, 2010. Because this alleged settlement took place subsequent to the hearing held on April 22, 2010, there is no competent evidence in the record confirming it. Accordingly, this order will be left interlocutory with respect to the issue of what amount of reimbursement shall be paid to UMR. This issue will presumably be resolved between UMR and New Richmond Transport/Sentry Insurance in accordance with the circuit court Stipulation and Order. Should there continue to be a dispute over the amount of reimbursement due UMR for the applicant's compensable injury of August 23, 2007, jurisdiction will be retained to resolve any such dispute.

In the administrative law judge's INTERLOCUTORY ORDER delete the paragraph numbered "1)," which orders reimbursement to UMR in the amount of $83,498.56.

Now, therefore, this

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed

May 24, 2011
kitzrge : 185:9 ND6 § 6.24

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

With regard to the central issue of whether the causation opinion given by Dr. Klemme, by Dr. Friedel, or by Drs. Anderson and Hugus should be accepted, the commission concurred with the administrative law judge that Drs. Anderson and Hugus gave the credible opinion. The credible evidence demonstrates that the applicant did continue to experience substantial and progressive cervical spine symptoms beginning with the work injury of August 23, 2007, and continuing through the surgeries performed in July and September of 2008. The applicant had severe preexisting degenerative cervical spine disease, however, the clinical records and opinions of Drs. Anderson and Hugus credibly demonstrate that this preexisting disease was precipitated, aggravated, and accelerated beyond normal progression by the work injury of August 23, 2007. The evidence submitted in support of a neck injury occurring in the work incident of March 18, 2008, was not credible, particularly given the lack of any mention or diagnosis of a neck injury by Dr. Pn'g on the day of the incident.

Respondents New Richmond Transport and Society Insurance additionally asserted that the applicant should not be entitled to an assessment of loss of earning capacity pursuant to Wis. Stat. § 102.44(6), and pursuant to the fact that the applicant quit his regular employment with New Richmond in October of 2007, in order to accept employment with Greenheck Fan Corporation. However, at the time the applicant quit his employment with New Richmond no claim for permanent disability under Wis. Stat. § 102.44(2) or (3), had been initiated; nor had any permanency been assessed by any physician. Even assuming a minimal permanency had been sustained prior to the applicant's quitting, the level of permanency changed substantially with the surgeries performed in July and September of 2008, long after the applicant's quitting. Accordingly, the bar to assessment of loss of earning capacity set forth in Wis. Stat. § 102.44(6)(a), is not applicable in this case.

Finally, New Richmond Transport/Society Insurance appropriately raised the issue of the proper amount of reimbursement due UMR, and the commission addressed that issue with the above modification to the administrative law judge's decision.

cc: Attorneys Mark W. Parman; Steven A. Cotton; Daniel L. Zitzer

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