GERALD WORZELLA, Applicant

GEORGIA PACIFIC LLC, Employer

GEORGIA PACIFIC 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, except that it makes the following modifications:

In the first sentence of the first paragraph after FINDINGS OF FACT delete the name "Jerald" and substitute therefor: "Gerald."

In the second sentence of the second paragraph after FINDINGS OF FACT delete the date "April 16, 2009" and substitute therefor: "July 19, 1999."

In the interlocutory order, delete the phrase "to Sedgwick on its reimbursement claim, Five thousand two hundred fifty-seven dollars and eighty-two cents ($5,257.82)."

Delete the first paragraph of the memorandum.

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed
September 13, 2012
worzage . wmd : 145 : 6 ND6 3.33;  3.39; 3.40; 9.33

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The respondent has petitioned for commission review. The respondent asserts that there is legitimate doubt that the applicant's left arm problem which required the April 16, 2009 surgery, which would be the applicant's fourth surgery, is related to the January 18, 1999, fracture. A cancerous condition which permanently weakened the humerus is the more probable cause for the need for the April 16, 2009, surgery. The respondent asserts that there is no medical explanation given as to why the hardware failed. The respondent argues that at the time of the April 16, 2009, surgery, there was no evidence of the original fracture being at issue in the need to replace the "defective hardware" which became loose from the adjoining bone to which it had been attached. The respondent argues that Dr. Leggon indicated in a July 15, 2003, clinic note that there was a solid union of the applicant's left humerus with no sign of recurrence. The respondent argues that the 2009 surgery was occasioned by the applicant's cancer and not the work injury or any non-work related accident after the third surgery. The commission disagrees. As noted by the ALJ, the hardware which was intended to alleviate the effects of the work injury, failed. Dr. Heiner noted that there was no recurrent cancer which accounted for the hardware failure. The applicant simply required additional medical intervention to provide some relief from new problems which resulted from the original work injury.

The respondent asserts that the independent medical examination of 2005 indicates that the surgery and therapy were required by the applicant's "pre-existing malignancy." The respondent points out that in addition the applicant did not treat for seven years following the third surgery in 2002, which suggests that the applicant had healed from the work injury and that his hardware failure was caused by the underlying weakness in his arm bone, which was permanently weakened by the cancerous tumor. The respondent argues that the hardware failed because it was affixed to a bone weakened by the applicant's cancer. However, Dr. Heiner stated in his January 22, 2010, letter that the 2009 surgery and treatment were related to the work injury of January 18, 1999, as it was clearly related to his arm fracture in 1999 and there was no recurrent tumor. As such, there is support for the ALJ's conclusion that the 2009 surgery was related to the fracture, which was the result of a work injury. The commission finds the opinion of Dr. Heiner to be credible.

The respondent argues that Dr. Leggon's March 13, 2009, correspondence, which states that if the initial injury was work related even though he had a large tumor, his subsequent follow up care and other forms of potential surgery should still be covered in the same way, is incorrect. The respondent argues that Dr. Leggon had an inaccurate assumption that if there was a conceded worker's compensation claim then it must always be compensable without regard to a potential overlapping problem that is the source of the medical condition. If the applicant in this case broke his arm because he fell off a bike the break would not be related to the work injury, assuming that the break would have occurred regardless of the prior work injury. See Lange v. LIRC, 215 Wis. 2d 561 (Ct. App. 1997). However, that is not the case here. In this case, hardware intended to treat the work injury failed and there was no demonstration that there was some intervening cause which caused the hardware to fail.

The respondent asserts that Dr. Friedel gave the only clear opinion pertaining to the relationship between the cancerous condition and fracture and the need for the April 2009, surgery in his supplemental report dated February 24, 2010. In that report Dr. Friedel indicates that the applicant had a malignant fibrous histiocytoma causing the bone's strength to weaken and he has done extremely well. However, the need for the 2009 surgery was related to his malignant cancerous condition as opposed to the January 18, 1999, work incident. That comment by Dr. Friedel is not a persuasive explanation as to why the need for surgery was not related to the work incident. The fact that the applicant's recovery was complicated by a pre-existing condition does not mean that the applicant's treatment was not necessary to cure and relieve the applicant from the effects of the work injury.

Next, the respondent argues that there is no reason to reserve jurisdiction as the 1999 fracture was documented as healed and medical opinion stated that further treatment was unlikely. Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which provides that pending a final determination of a controversy before it, the department may in its discretion and after hearing make interlocutory findings, orders and awards. In general, an interlocutory order to permit future disability and medical expense awards is appropriate when it may not be definitely determined that the injured worker will not sustain additional periods of disability with respect to that injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956). The Wisconsin Supreme Court noted that the level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992).

In his note of March 13, 2009, Dr. Leggon opined that the applicant had a difficult problem and that he had not reached an end of healing of his work injury. It was noted by Jill Guenther, PA, on April 15, 2011, that the applicant should obtain yearly humerus x-rays for the next five years to confirm stability. Given the applicant's history of failed surgeries to correct the problems in his arm, the ALJ's inference that the applicant might need future medical treatment and his decision to retain jurisdiction over the matter was reasonable and appropriate.

The respondent finally asserts that the order should not require reimbursement to Sedgwick CMS, the third party administrator for Georgia-Pacific at the time payments were made to the applicant by Sedgwick CMS in the amount of $5,257.82. The respondent asserts that the commission could take administrative notice of DWD records and there should be no order to repay Sedgwick. The applicant has not responded to the respondent's request. Exhibit G identifies Sedgwick as the respondent Georgia-Pacific/Domtar's insurance company and indicates that it paid the Marshfield Clinic $5,257.82. The information in the record suggests that Sedgwick used to be the self-insured employer's third party administrator for worker's compensation claims and paid this amount on behalf of the employer so the commission has deleted that part of the ALJ's decision which requires the employer to reimburse Sedgwick. If the applicant disagrees with the commission's conclusion he should contact the commission as soon as possible to provide accurate information. The commission will then determine whether, based on information provided by the applicant, further action is warranted.

cc: Attorney Mark Parman
Attorney Robert Craanen

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