KENNETH LENFESTEY, Applicant
MCDONALDS DRIVE IN 2100
LATHROP INC, Employer
ACE AMERICAN INS 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, except that it makes the following modifications:
1. Replace the eighteenth paragraph under the "FINDINGS OF FACT" with the following:
Provider |
$Amount of Reasonable and Necessary Medical Expenses |
City of Kenosha Fire Department |
509.50 |
Dr. Majed Jandali |
323.30 |
Milwaukee Radiologist |
97.00 |
Kenosha Emergency Physicians |
1,359.00 |
Aurora Medical Group |
740.00 |
IHC - Kenosha Radiology |
3,131.00 |
Wheaton Medical Group |
106.00 |
United Hospital |
22,525.00 |
UHS Physician Clinic |
1,707.00 |
Medical College Physicians |
35,967.94 |
Froedtert Hospital |
166,234.82 |
Applicant for mileage |
148.75 |
3. Replace the twenty-second paragraph under the "FINDINGS OF FACT" with the following:
Attorney fees are properly paid pursuant to DWD § 80.43(2) of the Wisconsin Administrative Code as there is no group insurance to pay Lenfestey's medical expenses. The payment to the medical providers will be proportionally reduced by the amount of attorney fees and expenses. In particular, the total amount of medical expenses found reasonable and necessary equals $232,749.31, the attorney's fee and expenses total $53,106.78 resulting in a proportional payment of 77.18% of each medical expense. Thus, the following providers will receive the amounts set forth below:
Provider |
$Amount after Proportional |
City of Kenosha Fire Department |
393.25 |
Dr. Majed Jandali |
249.53 |
Milwaukee Radiologist |
74.87 |
Kenosha Emergency Physicians |
1,048.91 |
Aurora Medical Group |
571.15 |
IHC - Kenosha Radiology |
2,416.59 |
Wheaton Medical Group |
81.81 |
United Hospital |
17,385.43 |
UHS Physician Clinic |
1,317.51 |
Medical College Physicians |
27,761.08 |
Froedtert Hospital |
128,227.57 |
Applicant for mileage |
114.81 |
5. Replace the "INTERLOCUTORY ORDER" with the following:
That within twenty one days, the respondent employer and insurance carrier shall pay to Attorney Richard A. Fortune, as attorney fees, the sum of Forty-six thousand five hundred forty nine dollars and eighty six cents ($46,549.86).
To Attorney Richard A. Fortune, as reimbursement for costs, the sum of Six thousand five hundred fifty six dollars and ninety two cents ($6,556.92).
The payment to the medical providers of the reasonable and necessary medical expenses after proportional reduction, for attorney fees and expenses, as set forth above.
Jurisdiction is reserved for such further findings and awards as may be warranted.
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed
July 26, 2011
lefeske:150:6 ND6 1.5; 3.32; 3.38
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Following a hearing and time for receipt of additional medical documents, the ALJ issued a decision on August 16, 2010 finding causation and payment of reasonable and necessary medical expenses. The respondent appealed, briefs were filed but prior to the commission issuing a decision, the parties indicated that a compromise had been reached. On January 20, 2011, the commission remanded the matter back to the department to consider the compromise.(1) On April 28, 2011, the parties were notified that the department denied the approval of the compromise and the matter was being returned to the commission for decision.(2)
The respondent contends that the applicant has not met the burden to establish that either of the two Lewellyn v. ILHR Dept., 38 Wis. 2d 43 (1968), compensable categories of work injuries have been met (i.e. either a breakage - a letting go or structural change; or a precipitation/aggravation/acceleration beyond normal progression of a progressively deteriorating or degenerative condition). Lewellyn at 58-59. Instead the respondent argues that the infection merely manifested itself after the applicant's fall-type injury. In response, the applicant's attorney argues that this situation is more akin to an "indirect" causal relationship and cites Gabriel vs. New London Family Medical Center et. al., WC Claim No. 2005-010687 (LIRC January 31, 2008).
The commission affirms the ALJ's finding of a causal connection between the applicant's fall and the subsequent psoas abscess and infection which nearly claimed his life based upon Dr. Mariani's opinion and the fact that the employer took the employee "as is." Specifically, the commission credits Dr. Geller's statement, supporting Dr. Mariani's
opinion(3) that the injured muscle provided a "fertile ground" for the infection that already existed based upon the carbuncle on his knee. Even the respondent's Dr. Wagner conceded that occasionally a psoas abscess results from a "secondary infection of a retroperitoneal hematoma." The fact that the area on which the employee landed in his fall at work was the site of the abscess and infection a few days later supports this opinion. If, as the respondent argued, the infection was sourced at the applicant's knee and was totally unrelated to the fall, why would it settle in the psoas when Dr. Wojciehoski indicated a psoas abscess is extremely unusual. Thus, the commission affirms the appeal tribunal decision with modification to correct a typographical error, the total amount of medical expenses and to proportionally reduce the medical expenses based upon the attorney fees and attorney expenses.
cc:
Attorney Richard Fortune
Attorney James Budish
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