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

KENNETH LENFESTEY, Applicant

MCDONALDS DRIVE IN 2100
LATHROP INC, Employer

ACE AMERICAN INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2008-001142


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:

The applicant incurred the following reasonable and necessary medical expenses to cure and relieve him of the effects of the injury: July 26, 2010

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
 Reduction

 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.

ORDER

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

MEMORANDUM OPINION

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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Footnotes:

(1)( Back ) On January 27, 2011, respondent's Attorney Budish submitted the compromise. The compromise admits a transient injury to applicant's low back but disputes the causal relationship between the injury at work and the development of the iliopsoas abscess with sepsis. The full and complete compromise was for payment to the applicant of $185,000.00, with 20% attorney's fees and expense of $6,617.92 for applicant expenses. The compromise was signed by all parties on December 27, 2010

(2)( Back ) After the deduction for attorney fees and expenses, the compromise left approximately $88,000 in medical expenses uncovered. ALJ Knutson gave the attorneys additional time to attempt to see if the providers would agree to the reduced payment as full satisfaction for the medical bills. When the attorneys, were unable to do so, she rejected the settlement and the file was returned to the commission.

(3)( Back ) That the fall resulted in a hematoma and that a septic abscess resulted from the secondary infection of that hematoma. Dr. Mariani was the only doctor to actually treat and meet the applicant.