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

LENORA H CALLOWAY, Applicant

EAGLE LUGGAGE CO, Employer

GENERAL CASUALTY COMPANY OF WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92019960

The employer and its insurance carrier (respondents) submitted a timely petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 25, 1997. The applicant submitted a late cross-petition also alleging error in the administrative law judge's Findings and Interlocutory Order. The cross-petition was late because pursuant to Wisconsin Administrative Code §§ LIRC 1.02 and 1.026, cross-petitions are subject to the same deadline as petitions, and must be filed within 21 days from the mailing of the administrative law judge's decision. Accordingly, the cross-petition is dismissed as untimely.

At issue are whether the applicant sustained an occupational injury arising out of and in the course of her employment with the employer, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby modifies the administrative law judge's Findings and Interlocutory Order as indicated below. The commission makes the following:

MODIFIED FINDINGS OF FACT

The administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW are affirmed and reiterated as if set forth herein, with the exception of the sentence which begins with the eighth line of page 5 of the administrative law judge's decision. That sentence is deleted and the following two sentences substituted therefor:

"The respondents shall pay the applicant's unpaid medical expenses as enumerated on applicant's Exhibit A, with the exception of the bill for $434 from Dr. Harvey Kohn. Dr. Kohn's bill is disallowed because it was related solely to a disability evaluation for hearing purposes rather than for treating purposes."

Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.

Now, therefore, this

INTERLOCUTORY ORDER

The administrative law judge's Findings and Interlocutory Order are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant compensation in the amount of Nine thousand five hundred ninety-two dollars and twenty-nine cents ($9,592.29); to applicant's attorney Charles M. Soule, fees in the amount of Two thousand three hundred ninety- eight dollars and seven cents ($2,398.07); to the applicant as reimbursement for medical expense which she paid the sum of Ten dollars ($10.00); to Orthopaedic and Athletic Care (1) the sum of One thousand three hundred twenty dollars ($1,320); to Saint Mary's Medical Center the sum of Seven thousand seven hundred forty-four dollars and fourteen cents ($7,744.14); to Racine Radiologists, S.C. One hundred forty-eight dollars ($148); to Curative Workshop the sum of One thousand six hundred one dollars and fifty cents ($1,601.50); to Neurological Clinic, S.C. the sum of Four thousand five hundred three dollars and twenty-two cents ($4,503.22); to Kurten Medical Group the sum of Four hundred ninety dollars and twenty cents ($490.20); to Dr. Mark Zimmerman the sum of One thousand one hundred five dollars ($1,105.00); and reimbursement to the unnamed insurance carrier which is listed as having paid to Kurten Medical Group the sum of Nine hundred sixty dollars and fourteen cents ($960.14).

Jurisdiction is reserved with regard to the issues of future medical expense and vocational rehabilitation.

Dated and mailed: January 15, 1998
callole.wsd : 185 : 8  ND § 5.48

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondents asserted that the applicant's right ulnar nerve entrapment was not causally related to her employment with the employer, and even had it been, the medical treatment expense attributable to this condition was not compensable because her treating practitioners were beyond the second choice practitioner pursuant to Wis. Stat. § 102.42 (2).

The medical records document that the applicant's elbow symptoms were with her from the onset of her upper right extremity difficulties in July 1991. Ultimately, Dr. Block identified the ulnar neuropathy as casually related to the applicant's employment, and performed surgery which revealed that an ulnar nerve transposition was necessary. Dr. Aschliman based his opinion against work causation on the supposed fact that the elbow problem had arisen during the two-year period when the applicant had not been working; however, the applicant's elbow symptoms were ongoing from the beginning of this two-year period. Based on the applicant's medical history and the nature of her work duties for the employer, Dr. Block's opinion of work causation is credible.

With regard to the disputed medical expense, the relevant portion of Wis. Stat. § 102.42 (1) reads:

"The employer shall also be liable for reasonable expense incurred by the employe for necessary treatment to cure and relieve the employe from the effects of occupational disease prior to the time that the employe knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment subs. (2) and (3) shall not apply."

The "subs. (2)" referred to in the above quote is Wis. Stat. § 102.42 (2), which limits an employe's unrestricted choice to two different treating practitioners. Wis. Stat. § 102.42 (1) provides that the two-choice limit is not applicable to occupational disease injuries for which treatment was received prior to the time the employe knew or should have known the nature of his/her disability and its relation to employment. While the applicant suspected all along that her elbow symptoms were work related, she did not know the nature of that disability until it was diagnosed by Dr. Rybicki and Dr. Block. It was an occupational disease injury, the nature of which was difficult for even the physicians to diagnose. Accordingly, the applicant's medical treatment to cure and relieve from the effects of her ulnar nerve entrapment, prior to the diagnosis of this condition by Dr. Rybicki and Dr. Block, was not subject to the two-choice limit. Dr. Rybicki and Dr. Block constituted a first choice of treating practitioner for the applicant's occupational elbow injury (Dr. Rybicki referred the applicant to Dr. Block), because they were the first physicians to identify the nature of the medical problem.

All the medical expenses claimed are compensable, with the exception of the bill for $434 from Dr. Kohn. The applicant conceded in testimony that she saw Dr. Kohn on only one occasion in order to obtain a medical evaluation for her worker's compensation hearing. The only credible inference to be drawn from this testimony is that the sole purpose for her visit to Dr. Kohn was to obtain a disability evaluation, rather than treatment for her elbow condition. Accordingly, Dr. Kohn's bill is not related to treatment and is not compensable. The disallowance of this bill was based on the applicant's undisputed testimony and the nature of Dr. Kohn's services, not on any disagreement with the administrative law judge's credibility determinations.

cc: ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY WALTER D THUROW
LAW OFFICES OF WALTER D THUROW

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Footnotes:

(1)( Back ) The handwritten notation "PD" is penned in next to the listing for the bill for $1,330.00 from Orthopaedic and Athletic Care, the commission infers that this notation is in reference to the $10.00 which the applicant paid toward this bill. Of course, if the employer or its insurance carrier previously paid this bill, then the commission's order for its payment has been satisfied.