MATTHEW J KAYDO, Applicant

CNH AMERICA LLC, Employer

CNH AMERICA LLC, 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.

Dated and mailed
May 24, 2012
kaydoma . wsd : 145 : 6 ND6 5.1;  5.3; 5.4; 5.6
 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant has petitioned for commission review. The applicant asserts that the ALJ erred in denying reimbursement of medical expenses incurred by applicant for treatment performed by Dr. Robbins, since Dr. Robbins was not applicant's third choice of provider. Applicant asserts that his treatment at the emergency room did not count as a choice. The commission agrees that emergency treatment is not a choice, even, as here, when the applicant did not wish to go to the emergency room that was first suggested to him. However by continuing to treat at Aurora after the emergency had passed Aurora Occupational Health became applicant's first choice of provider.

In Pastrich v. Fitness Works and General Casualty Insurance Co., WC Claim No. 96042324 (LIRC April 9, 1998), the commission noted that while a clinic, Redi-Med, was not an emergency room but a clinic where doctors practice medicine, the applicant's initial and urgent treatment there did not amount to a choice, although the commission indicated it would be more likely that it would constitute a choice if "the Redi-Med doctor had indicated the applicant should return to the Redi-Med Clinic for treatment of his cervical and lumbar sprain."

The applicant testified that he was advised to continue treating with the occupational medicine clinic. However, he could have treated with occupational medicine professionals at any clinic. Emergency room doctors often advise follow-up treatment at a regular clinic. Should a patient take the advice of the emergency room, the treatment at a regular clinic is the patient's choice. The emergency room discharge instructions in the present case indicate he could follow up with occupational health if his symptoms persisted. Applicant testified at page 21 of the transcript that the emergency room personnel referred him "to occupational health." Like the emergency room note, applicant did not testify he was referred to any specific doctor or even Aurora Occupational Health clinic. Thus, it was his choice to continue to treat with Aurora after the emergency had passed.

Applicant also asserts that he presented substantial, credible, and compelling evidence that he was entitled to temporary total disability from October 12, 2010, through June 7, 2011, ten percent permanent partial disability and related medical expenses. The applicant asserts that Dr. Lemon is not a spine surgeon, but a knee and hip surgeon. Applicant asserts that the ALJ erred when she rejected the progress notes, operative report and disability reports of Dr. Stephen E. Robbins, M.D. who saw the applicant on two occasions pre-operatively, performed an anterior cervical discectomy and fusion on December 6, 2010, and saw the patient five times post-operatively.

The commission notes that it was not disputed that applicant hit his head on a manipulator arm at work. The applicant did have surgery but still had significant problems with his neck. It is not clear from the surgical notes or from the report of
Dr. Robbins that he found anything during the surgery that would explain applicant's symptoms. While Dr. Robbins noted that "disc material was removed all the way back to the posterior longitudinal ligament" he did not indicate how this accounted for applicant's mainly left-sided symptoms.

The applicant further asserts that the ALJ focused on a June 2010, cervical MRI report that revealed "chronic degenerative findings." The applicant asserts that the lack of acute findings should not be fatal to his claim. The ALJ pointed out that the chronic degenerative findings were primarily on the right. Yet, the applicant complained mainly of left-sided pain. Further, Dr. Rao, who also treated the applicant, did not believe that his symptoms followed a clear pattern which would suggest that the degenerative disc was the cause of his pain. He based his opinion in part of applicant's CT scan, and after reviewing cervical x-rays from 2004. The commission finds the opinion of Dr. Rao to be extremely credible.

The applicant also argues that the respondent is liable for unnecessary treatment undergone in good faith.

"The supreme court has held that medical expenses incurred in good faith may not be disregarded, even if the department subsequently accepts as credible the opinion of a doctor who opines the expense was unnecessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). On the other hand, an injured worker is allowed only two 'free' choices of practitioner; prior approval must be obtained from the insurer or employer for treatment beyond the second choice of practitioner (except that referrals or treatment with partners are considered treatment by the referring doctor.) Section 102.42 (2)(a), Stats. Unapproved treatment expense from practitioner's (sic) beyond the second choice is not compensable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996).

"In this case, the record establishes the applicant sought treatment in good faith. Because the applicant continued to treat at the Marshfield Clinic after the 'emergency' on the date of injury, the practitioners at the Marshfield Clinic were the applicant's first choice. When the applicant then began seeing Dr. Passineau on January 25, 1993 without a referral from the Marshfield Clinic, he became the applicant's second choice."

Sazama Jr. v. Collins Construction and Remodeling and American Family Mutual Insurance Co. (WC Claim No. 92068079).

Under the circumstances presented in this case, the applicant did sustain a work injury on June 4, 2010, which resulted in a temporary cervical strain which completely resolved by October 8, 2010. The commission agrees with the conclusion of the ALJ that applicant did not suffer permanent disability as a result of the work incident and did not require medical treatment beyond October 8, 2010. Treatment incurred after that date was not simply unnecessary, it was undertaken to cure and relieve the effects of the work injury which had already resolved.

cc: Attorney James Pitts
Attorney Gary Stanislawski

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded  2012/10/01