DEBRA A ZIERFUS, Applicant

SHORTYS BAR & GRILL, Employer

WILSON MUTUAL 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:

Delete the second and third sentences of the first full paragraph on page 3 of the ALJ's decision and substitute therefor:

"However, respondent refused to deposit the cost of the program in advance especially as the Mayo Clinic did not disclose the specific treatment to be provided or the charges for the treatment. Respondent argues that while Wis. Stat. § 102.18(1)(b) allows the department to order payment of prospective medical treatment, it does not allow for depositing the estimated cost of prospective treatment before the applicant is even enrolled in the program."

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

Dated and mailed
March 25, 2013
zierfde . wmd : 145 : 6 ND6 5.1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant has petitioned for commission review of the ALJ's decision. The applicant argues that the parties agree that the pain clinic is medically necessary treatment for the employee for her chronic pain because of her shoulder injury and replacement. The applicant asserts that the court of appeals found in Rock Tenn Company v. Labor and Industry Review Commission, 334 Wis. 2d 750, 799 N.W.2d 904, 2011 WI App 93, that "sec. 102.18(1)(b) presumes the 'right to compensation' and does nothing more than improve or facilitate her right to compensation by moving the time of payment of treatment expense from post treatment to pretreatment." Further the Rock Tenn court held that the commission can order the insurer to pay the defendant's prospective medical expenses instead of ordering the insurer to pay the defendant's medical expenses after they are incurred.

While the commission agrees it has the discretion to award prospective medical costs, the commission is not willing to exercise its discretion in this case. The treatment program in this case does not define the treatment that the applicant will be receiving. This is not a situation where a specific surgical procedure, such as a the back surgery in Rock Tenn, is ordered. The treatment at issue in this case involves undetermined services with a wide range of potential cost. Further, the respondents are expected to deposit the highest potential cost, which is $7,000 more than the low end of the range, and then wait to see how much, if any, the Mayo Clinic refunds to them. While the Mayo Clinic has provided general information about services the applicant might receive there is simply not sufficient information in the record for the commission to determine that the proposed treatment is reasonable and necessary. The respondents might agree that some form of pain management treatment for her shoulder injury is medically necessary. However, it is not possible to determine, based on the information provided, that the Mayo Clinic pain program is reasonable and necessary to treat the applicant's shoulder injury.

cc: Attorney Ronald Fitzpatrick
Attorney David Piehler

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