P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 94020770

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. Delete the third paragraph beginning on page 6 of the ALJ's decision, and substitute:

"In addition, the medical expenses and mileage for treatment list on exhibit L were reasonable and necessary to cure and relieve the effects of the applicant's compensable injury, with one exception. Neither exhibit L nor any other part of the hearing record establishes what the treatment expense from Advanced Diagnostic, Inc., was for, or how it relates to the work injury. Accordingly, the expenses listed in exhibit L, other than the expense for the Advanced Diagnostic, Inc., shall be paid."

2. Delete the second paragraph of the ALJ's interlocutory order, and substitute:

"Within 21 days the respondent and insurance carrier shall pay those outstanding medical expenses and mileage for treatment listed on applicant's exhibit L, except for the bill from Advanced Diagnostic, Inc."


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

Dated and mailed: February 27, 1998
ceglapa.wmd : 101 : 5  ND 5.46  9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


a. Background.

Both parties seek commission review of the ALJ decision. The relevant facts may be quickly recited.

The employer and the insurer (collectively, the respondent) concede that the applicant sustained a work injury to her back on February 28, 1994 while trying to remove a floor jack that was stuck under a pallet. The respondent's independent medical examiner (IME) diagnosed chronic mild lumbar myofasciitis from which the applicant plateaued by May 1, 1994 with permanent partial disability at two percent compared to disability to the body as a whole. The IME restricted the applicant from lifting more than 30-35 pounds, and stated she could lift that weight only occasionally. He also did not want her performing repetitive motion. He opined that as of the May 1, 1994 plateau date, no further treatment was necessary. (1)

A treating chiropractor's note for October 5, 1994 rates permanent partial disability at 5 percent for myofascial residuals, including functional elements of reduced range of lumbar motion and pain. The note indicates supportive care might be needed. In a practitioner's report prepared in March or April 1995, the treating chiropractor reiterated his opinion that supportive care might be needed because the applicant's pain condition was chronic and that her symptoms recurred. He also stated in the later report that her permanent disability rating should be upgraded from five percent to seven or ten percent. Finally, he also attached a functional capacity evaluation to his report, which, among other things, imposed lifting and carrying restrictions of 25 pounds.

The circumstances under which the applicant left her job with the employer are disputed. The applicant testified the employer did not accommodate her temporary work restrictions while she was recovering from the work injury. The employer insists it did. Since leaving the employer, the applicant worked at a couple of other jobs, (2) continued to receive periodic chiropractic treatment, and has now begun coursework toward a baccalaureate degree in social work.

b. ALJ decision; positions on appeal.

The respondent conceded and paid two percent permanent disability per its IME, as well as certain medical expenses. The ALJ awarded an additional 3 percent, bringing the award for permanent partial disability to five percent compared to disability to the whole body. The ALJ also ordered paid all the disputed medical expense, which included approximately $2,300 for chiropractic treatment and $248.50 for diagnostic services. Finally, the ALJ refused to address the applicant's claim for loss of earning capacity (LOEC), noting that the applicant was in school and that a decision on LOEC should be deferred until she completed her education.

About a week after receiving the ALJ's decision, the applicant wrote to the ALJ asking the ALJ to resolve the limited issue of the applicant's departure from the employer. After the respondent filed a petition for review, the applicant renewed her request as a cross-petition. However, the cross-petition was filed with LIRC more than 21 days after the ALJ's decision was issued.

The respondent, for its part, contends the ALJ erroneously awarded additional permanent partial disability. It also challenges the medical expense award, claiming that the chiropractic treatment was unnecessary (or at least not necessary because of the work injury) and that the diagnostic charge was unsupported by the evidence. It finally challenges the applicant's cross-petition as untimely, and asks that the commission not address the issue of why the applicant separated from the employer.

c. Discussion.

The commission shall first address the points raised by the respondent:

A five percent permanent partial disability for the applicant's condition is supported by the record in this case. The applicant has significant permanent work restrictions, even under the IME's opinion. Thus, the observation that the administrative code requires a minimum of 5 percent permanent partial disability for a successful laminectomy surgery cuts both ways here. On the one hand, the applicant did not need a laminectomy surgery. On other, her permanent restrictions are equivalent, if not greater, than those often imposed following a successful laminectomy surgery. In sum, the commission, like the ALJ, concludes the permanent disability rating originally given by Dr. Murphy, five percent compared to permanent total disability, is most reasonable in this case.

The commission also affirms payment of the chiropractic treatment expense. First, the chiropractors both reported that the treatment they provided was necessary (exhibits A and J). Second, while much of the disputed expense is for treatment after the healing period, the law specifically provides that the obligation to furnish treatment "continues as required to prevent further deterioration in the condition of the employe or maintain the existing  condition whether or not healing is completed." Wisconsin Statutes 102.42 (1). Third, even if the IME is correct that the additional chiropractic treatment was not necessary after the applicant reached a healing plateau with permanent residuals, the treatment expense still must be paid assuming it was related to the work injury. The supreme court has stated that treatment of a work injury procured in good faith must be paid, even if another doctor whom LIRC or DWD subsequently find credible opines the treatment was unnecessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972).

The respondent distinguishes this case from Spencer by pointing to portions of the notes of the treating chiropractors which mention exacerbations of the applicant's symptoms by work activities with subsequent employers. However, no medical expert has opined that these exacerbations caused a new injury, and the reports of the treating chiropractors suggest exactly the opposite. The award of the chiropractic treatment expense is supported by the record.

The $248.50 expense billed by Diagnostic Services, Inc., is another matter. The bill evidently was for testing done in December 1994. However, the hearing record does not indicate how, or if, the treatment is related to the work injury. In other words, this is not a case where doctors dispute the necessity of treatment, but rather a case where the commission cannot determine if the treatment was even for the work injury.

The applicant acknowledges this, and provides material on review to show what the provider, Advanced Diagnostic, Inc., did in December 1994. However, the commission's decision must be based on the hearing record. The commission therefore amended the ALJ's decision to deny payment of the bill.

This leads to the last point made by the respondent: the timeliness of the applicant's cross-petition. The commission generally dismisses, as untimely, cross-petitions filed after 21- day appeal period under Wis. Stat. 102.18 (3) as untimely recall. Wis. Admin. Code LIRC 1.026 (effective June 1, 1997). See also: Lenora Calloway v. Eagle Luggage, WC Case no. 9201999660 (LIRC, January 8, 1998).

In this case, of course, the applicant first raised the issue she now raises on appeal in a letter to the ALJ only 9 days after the decision was mailed. Under some circumstances, such letters are simply treated as petitions for commission review. For this reason, and because the commission's review authority is not restricted to arguments made by the parties, (3) timely or not, the commission considered the argument raised by the applicant in her letter to the ALJ and subsequent untimely petition for review.

The applicant essentially wants the commission or the ALJ to issue a decision regarding the circumstances leading to her separation from the employer. The ALJ declined to do so, as the issue of the applicant's separation would matter only for the purposes of determining loss of earning. The ALJ declined to reach the LOEC issue generally because the applicant was in school at the time of the hearing. (4)

The ALJ decision's on this point may be viewed as an act of ALJ discretion in controlling his calendar, an area in which the commission traditionally is reluctant to intrude. Neala Wichel v. Franciscan Sisters of Perpetual Adoration, WC case no. 93066564 (LIRC, October 31, 1996). Beyond that, as the respondent points out, there is a certain judicial economy in not addressing any issue until necessary. Stated another way, the applicant wants the commission or the ALJ to decide the circumstances of the applicant's separation from employment in advance of a claim that may never come up if the applicant's education raises her earning capacity. Indeed, unless the question were resolved against the applicant by dismissing her LOEC claim, any decision reached might reasonably be viewed as dicta or advisory, and create confusion in any future case on the LOEC issue.



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(1)( Back ) In follow up reports, the IME opined the applicant was not a candidate for fusion surgery, and that the work injury caused disability by aggravation, acceleration and precipitation of a pre-existing degenerative condition, rather than directly.

(2)( Back ) Her treating chiropractor initially released the applicant without restriction in May 1994. However, both doctors now agree the applicant is subject to permanent restrictions from the work injury.

(3)( Back ) Nystrom v. Industrial Commission, 196 Wis. 2d 406, 409 (1928) and Waldera v. LIRC, case no. 93-2527 (Wis. Ct. App., April 19, 1994), slip op., at 4.

(4)( Back ) The applicant does not appeal the ALJ's underlying decision to defer resolution of the LOEC issue; the commission regards the decision to defer appropriate in this case.