Wis.LIRC WC Decision: Pastrich - April 9, 1998 - ND � 5.48 - Choice of Treating Practitioner - where worker injured off-premises and seeks immediate care on that date, the treatment is not counted as a "choice" under � 102.42(2)(a)

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

DOUGLAS PASTRICH, Applicant

FITNESS WORKS, Employer

GENERAL CASUALTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96042324

The administrative law judge issued his findings of fact and interlocutory order in this case on August 26, 1997, following a hearing on July 9, 1997. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
Prior to the hearing, the respondent conceded jurisdictional facts, and an average weekly wage of $400. The threshold issue at the hearing was whether the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. If such an injury is established, the issues also include the nature and extent of disability from the injury, and the respondent's liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant claims compensation for an injury to his left arm, back and neck on July 1, 1996. The injury occurred while the applicant was delivering a 400-pound exercise treadmill with a coworker. The applicant experienced the immediate onset of pain which he described as a severe pull feeling as if a razor blade were slicing his back. After the men made another delivery, the applicant asked his coworker to drive to the Redi-Med Clinic for immediate care and treatment.

The treatment note from the Redi-Med Clinic reports that the applicant was lifting a 400-pound treadmill when he experienced pain near the neck, radiating down the back into the left buttock. On examination, the Redi-Med doctor noted no spasm or tenderness of the neck. Full flexion, but some spasm, was noted in the back. The Redi-Med doctor's diagnostic assessment was cervical and lumbar strain. He prescribed medication and released the applicant to light duty.

The applicant then saw a chiropractor, Corinne Kennedy, D.C., for treatment on July 9, 1996. Her initial treatment note describes the injury moving the treadmill, causing a sharp pain in the back and neck. Dr. Kennedy's notes include a description of "chief complaints" of pain in the neck, upper back and lower back, with pain in the right arm to the biceps and right leg to the knee. Dr. Kennedy took the applicant off work.

Sometime after the applicant's initial treatment with Dr. Kennedy, the applicant began to experience left arm pain or numbness. There is no mention of left arm pain in Dr. Kennedy's initial notes, and her handwritten for July 10, 1996 appears to rule out leg and arm symptoms altogether. Dr. Kennedy did note left shoulder symptoms on July 17, 1996.

Dr. Kennedy treated the applicant into mid-August 1996. During the course of treatment, however, Dr. Kennedy referred the applicant to Henry Rosler, M.D.

Dr. Rosler first saw the applicant on July 23, 1996. In a letter to Dr. Kennedy after that visit, Dr. Rosler noted complaints of severe pain following the work injury in the neck, thoracic spine and lower back area. The pain was in the nature of cramps and spasms. The applicant also complained that the back pain radiated to the buttocks, and the neck pain to the arm. On physical examination, the doctor noted pain with the straight leg raising test to 50 degrees, and reproduction of left shoulder pain with the cervical compression test. The doctor noted some restriction in range of motion.

Dr. Rosler diagnosed severe cervical, thoracic and lumbar strain. He opined the applicant's left arm problems could either be radicular from the neck, or due to an ulnar entrapment neuropathy at the elbow. X-rays and an EMG of the left arm were recommended. Dr. Rosler also prescribed medication and kept the applicant off work.

The x-rays were normal. The EMG, done on July 30, 1996, was consistent with a left ulnar nerve entrapment neuropathy at the elbow, but showed no evidence of a left cervical radiculopathy.

The applicant requested a surgical referral, so Dr. Rosler referred him to Dr. Stark. However, the applicant instead began treating with Stephen Delahunt, M.D., on self-referral.

Dr. Delahunt first saw the applicant on August 19, 1996. He reported the applicant presented with symptoms of low back pain with radiation to the right leg, and pain in the left elbow area with numbness and pain in the ulnar nerve distribution to the hand. Dr. Delahunt noted the applicant had no symptoms referable to the lumbar spine before the work injury while lifting the treadmill. The doctor noted that the applicant's initial complaints were pain from the lumbar spine to the neck, with right lower radicular pain developing thereafter.

On examination, Dr. Delahunt noted pain with extension and tenderness on palpation. His assessment was discogenic lumbar spine pain, with a radicular component indicating probable nerve root irritation. The doctor also noted symptoms of left tardy ulnar palsy. He recommended the series of epidural injections (previously recommended by Dr. Rosler) and prescribed medication.

Dr. Delahunt concluded his initial treatment note by opining that the applicant's symptoms were directly related to the work- related incident of July 1, 1996. Specifically regarding the left ulnar palsy, Dr. Delahunt noted that the symptoms occurred so close in time to the injury as to lead to the conclusion they directly related to the injury.

Dr. Delahunt referred the applicant to David W. Olson, M.D., for further examination of the left arm condition. The applicant saw Dr. Olson on September 13, 1996. He noted the onset of left arm pain about one to two weeks after the injury. The doctor also noted that an electrophysiologic examination showed a conductive deficit indicative of ulnar nerve compression. He found the sensory examination a bit bizarre in that there was a marked deficit in the fingers innervated by the median nerve as well as the fingers innervated by the ulnar nerve.

In a subsequent examination on October 15, 1996, Dr. Olson noted that the deficit in the fingers innervated by the median nerve was not nearly of the degree of the deficit in the fingers innervated by the ulnar nerve. The doctor went on to report he had offered to do a surgical decompression and the applicant agreed.

Meanwhile, the applicant underwent epidural cortisone injections for his lumbar symptoms in September 1996. On September 25, 1996, the applicant underwent a lumbar spine MRI which was normal. He then returned to Dr. Delahunt on September 30, 1996. The doctor noted that the he had not yet been able to specifically identify a "pain generator" in the applicant's spine. The doctor could not determine a return to work date, or work restrictions, based on the applicant's intractable symptoms.

At the time of the hearing, the applicant testified that his left arm symptoms were getting worse, and that his sensation of numbness in that arm was constant. He has continuing low back pain and intermittent neck pain, but his leg pain has subsided.

The employer was unable to accommodate the applicant's restriction to light duty imposed after his injury. As a result, the applicant has not worked for the employer since the injury on July 1, 1996. He has since returned to work for another employer as a computer troubleshooter.

The record contains expert medical opinion regarding causation, nature of disability, and extent of disability from treating doctors Delahunt and Olson, as well as the respondent's independent medical examiner, Steven C. Delheimer, M.D.

Dr. Delahunt provided two documents expressing expert medical opinion. In the first, a form practitioner's report dated October 17, 1996 (exhibit H), the doctor marks both the direct causation and occupational disease boxes, relating the applicant's disability back to the July 1, 1996 work injury. By way of explanation, Dr. Delahunt refers the reader to his notes. (1 ) Dr. Delahunt also reported that he had last examined the applicant on September 30, 1996, and was unable to state what permanent disability the applicant would have. Dr. Delahunt did expect further treatment in the nature of office visits, psychological evaluation, and treatment.

The applicant also submits a February 7, 1997 letter from Dr. Delahunt (exhibit C). In the letter, the doctor notes the applicant's back and left arm symptoms, and that the applicant had no symptoms prior to his work injury. Dr. Delahunt also described the applicant's treatment, and the lack of psychological evaluation. Finally, the doctor reported that he has not seen the applicant since September 30, 196, and so could not state whether the applicant had reached an end of healing, or whether he had permanent disability, as of the date of the report.

Dr. Olson submits a report dated October 28, 1996 dealing specifically with the applicant's left arm complaints which he diagnosed as an ulnar nerve deficit at the level of the elbow. See exhibit A. Dr. Olson opined that an appreciable period of workplace exposure was at least a material contributory factor in the onset or progression of the condition causing the applicant's disability. Dr. Olson's practitioner's report refers to his treatment notes for further explanation; however, the doctor's notes nowhere describe what work exposure or period of activity led to the applicant's condition. Rather, his notes mention only the treadmill-lifting injury of July 1, 1996, but do not explain how the lifting injury could have directly caused the left arm ulnar nerve deficit.

The respondent submits the report of its independent medical examiner, Steven C. Delheimer, M.D., dated October 1, 1996 (exhibit 1.) Dr. Delhemier's diagnostic impression is that the applicant suffered a strain, primarily to his lumbar area, from lifting the treadmill on July 1, 1996. He believed, based on a normal neurological evaluation, that the applicant had recovered from the injury.

Dr. Delheimer also considered the left arm condition. He did not think the work injury caused this problem, as the pain at the time of injury was "global" and involved primarily the spine. He concluded the applicant's left arm problem was incidental, and not related to the work injury. Dr. Delheimer went on to opine the applicant reached an end of healing as of September 20, 1996, and that he had no permanent disability and could work without restriction.

Based on the applicant's credible testimony of continuing low back pain, despite treatment including injections, the commission finds Dr. Delahunt's report credible with respect to the causation and extent of disability related to the applicant's back injury. The commission therefore concludes that the applicant sustained an injury to his low back arising out of employment and while performing services growing out of employment on July 1, 1996. The commission further concludes the applicant is entitled to temporary total disability from that injury for the period awarded by the administrative law judge.

However, the commission cannot conclude that the applicant's left arm condition arose from the July 1, 1996 injury. First, as the respondent points out, Dr. Olson opines the left arm ulnar nerve deficit is the result of "occupational disease" (that is, from an appreciable period of workplace exposure), rather than from the July 1, 1996 lifting injury. While his notes mention the traumatic lifting incident, they do not explain how that injury or any work activity or work exposure caused the applicant's left arm ulnar nerve deficit. Thus, this case goes beyond the situation where a doctor marks the "wrong" box on the form practitioner's report in light of an otherwise persuasive narrative explanation in the doctor's notes.

Dr. Delahunt's August 19, 1996 initial treatment note does state that the applicant's left ulnar palsy symptoms are directly related to the work injury. He also provides an explanation: the onset of the left ulnar palsy two weeks after the work injury is so close in time the conditions must necessarily be related. However, the basis for Dr. Delahunt's opinion, the mere fact the symptoms surfaced about two weeks after the lifting injury, is not convincing in the absence of a description of how the work injury caused the left arm palsy and an explanation of why it took about two weeks for the symptoms to surface. Nor may the commission supply that information by inference, as the applicant did not fall on his left elbow or suffer some other obvious injury to his left elbow in the lifting incident.

On this basis, the commission finds Dr. Delheimer's opinion more credible than those of Dr. Olson and Dr. Delahunt with respect to the cause of the applicant's left arm ulnar nerve deficit or palsy. Stated another way, the commission has legitimate doubt on this issue. No compensation, either for disability or medical expenses, shall be paid for the left arm injury.

The last issue is the respondent's liability for medical expenses to cure and relieve the effect of the applicant's work injury. Because the commission cannot conclude that the left arm ulnar nerve deficit arose from the work injury, the respondent is not liable for the treatment expense from Hand Surgery Limited, where the applicant treated with Dr. Olson. The respondent is liable for the remaining expenses awarded by the administrative law judge for treatment at the Spine Center of Wisconsin and St. Luke's Medical Center, to the extent the treatment was for the applicant's back complaints rather than his left arm condition.

While Dr. Delahunt's treatment at the Spine Center no doubt focused primarily on the applicant's back complaints, the doctor's notes suggest some of his treatment was related to the left arm problem. Accordingly, the matter is remanded to the department to take appropriate action to determine which portion of the treatment expenses from St. Luke's Medical Center and Spine Center of Wisconsin are compensable under this order.

The commission considered, but rejected, the respondent's argument that Dr. Delahunt was the applicant's third choice of practitioner. If Dr. Delahunt were the third choice, the insurer would not be liable for the expense of treatment by him, or by the practitioners to whom Dr. Delahunt referred the applicant. (2 ) The respondent counts the Redi-Med Clinic as the first choice; the Kennedy-Rosler treatment as the second choice; and the Delahunt- Wlodarski-Olson treatment as the third choice.

The commission has previously regarded emergency treatment, particularly if an injured worker is seen by emergency room personnel only once, as not constituting a choice. (3 ) It is true that in this case the applicant, not the employer, arranged for the applicant to be taken to the Redi-Med Clinic. Nonetheless, the treatment at Redi-Med Clinic was for emergency or immediate care. Where, as here, a worker is injured in an off-premises accident and seeks immediate care on the date of injury, the commission must conclude that the treatment was not a "choice" within the meaning of Wis. Stat. � 102.42(2)(a).

The respondent recognizes this point, and asserts that the Redi-Med Clinic is not an emergency room but a clinic where doctors practice medicine. However, this argument would have more force if the Redi-Med doctor had indicated the applicant should return to the Redi-Med Clinic for treatment of his cervical and lumbar sprain. (4 ) In sum, the commission concludes the Kennedy-Rosler treatment was the applicant's first choice, while the Delahunt-Wlodarski-Olson treatment was the second choice. No medical expenses shall be denied on a "choice of practitioner" rationale.

The applicant is thus entitled to compensation for temporary total disability for the two week, two day period from October 21 through November 5, 1996. At a weekly rate of $266.97 (two-thirds his average weekly wage of $400), the total amount awarded for temporary disability is $622.23.

The applicant authorized a twenty percent attorney fee under Wis. Stat. � 102.26. The fee thus equals $124.45 (twenty percent of $622.23), leaving an amount due the applicant within 30 days of $497.78.

Because the applicant's treatment expense for his compensable back claim must be segregated from the expense for his noncompensable left arm claim, and because the applicant needs or may need additional medical treatment for his back and may be entitled to other benefits under Wis. Stat. ch 102, jurisdiction is reserved for such further findings and awards as may be warranted.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within thirty days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Douglas Pastrich, Four hundred ninety-seven dollars and seventy-eight cents ($497.78) for disability compensation.

2. To the applicant's attorney, Alan Derzon, One hundred twenty-four dollars and forty-five cents ($124.45) in fees.

Jurisdiction is reserved for such other findings and orders as may be warranted and consistent with this decision.

Dated and mailed: April 9, 1998
pastrdo.wrr : 101 : 5 ND � 5.48

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding administrative law judge concerning witness credibility and demeanor in this case. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be an honest, straightforward witness. The commission in no way disputes this. Its modification of the ALJ's findings is not based on a different view of the credibility of any witness who testified at the hearing, but rather on the written submissions of the medical experts.

cc: ATTORNEY JOHN E DRANA
LINDNER & MARSACK SC

ATTORNEY ALAN DERZON
DERZON MENARD & NOONAN

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Footnotes:

(1)( Back ) These include his August 19, 1996 note opining that both the arm and back conditions were work related, as well as his September 30, 1996 note that because the applicant was not improving a psychological evaluation was necessary.

(2)( Back ) Wisconsin Statutes � 102.42(2)(a) provides: "Where the employer has notice of an injury and its relationship to employment the employer shall offer to the injured employe his or her choice of any physician, ... practicing in this state for treatment of the injury. By mutual agreement, the employe may have the choice of any practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employe shall be given his or her choice of treating practitioner at the earliest possible opportunity. The employe has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner." A respondent is not liable for treatment after the second choice, unless approval is given. Ruby Rodgers v. WA Krueger Co. Brookfield, WC case no. 94036726 (LIRC, December 4, 1996). See also, UFE v. LIRC, 193 Wis. 2d 361, 368-71 (Ct. App., 1995), affirmed 201 Wis. 2d 275 (1996).

(3)( Back ) Trent Gmeiner v. Bemis Mfg. Co., WC Claim no. 94071938 (LIRC, June 5, 1997); Judy Mrdutt v. Cardinal FG, WC Case no. 93067412 (LIRC, September 18, 1996), affirmed sub nom Cardinal FG v. LIRC, case no. 96 CV 194 (Wis. Cir. Ct. Dunn County, July 16, 1997).

(4)( Back ) The note does contain the phrase "Reck 1/5." Assuming this even refers to a recheck of the July 1, 1997 injury, it does not indicate whether the applicant should have the condition checked at Redi-Med Clinic or elsewhere.