Wis.LIRC WC Decision: Lutz - April 28, 1998 - ND � 10.3 - Compromise - compromise agreement provided employer would pay reasonable expense of travel for treatment - reasonableness and necessity of travel and treatment

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

DALE R LUTZ, Applicant

KIMBERLY CLARK CORPORATION, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1988058303

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.

ORDER

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

Dated and mailed: April 28, 1998
lutzda.wsd : 175 : 7 ND � 10.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that further travel and treatment with Dr. Benedett in Springfield, Missouri is reasonable and necessary to cure and relieve the applicant from the results of his work injury, and that the employer shall be obligated to pay for them. The employer objects to the applicant traveling to Missouri for eye care which is not within the specialty of Dr. Benedett and contends that such examinations and their associated expense are neither reasonable nor necessary. The applicant suffered a work-related injury to his right eye on September 7, 1988 while working for the employer. The applicant was treated in part by Dr. Benedett, who performed surgery on the applicant's eye in 1988. Dr. Benedett relocated his medical practice to Springfield, Missouri, and since that time the applicant has traveled to Missouri on occasion to see Dr. Benedett.

The limited compromise agreement entered into by the parties on January 6, 1994 provides in part that the only claim to remain open during the statutory period is any claim the applicant may make for examination and future treatment of his injured eye which may be necessary for those injuries sustained on September 7, 1988, which shall remain open without limitation under the Worker's Compensation Act. The compromise agreement provides further that with regard to future medical examinations and treatment, the employer agrees reasonable choice of practitioner shall include but not be limited to the applicant's prior and current practitioners. The employer agreed that it shall pay for the reasonable expense of travel to obtain examination and treatment including but not limited to the applicant's prior and current practitioners.

There is also evidence of a letter dated December 21, 1993 prior to the limited compromise agreement from the applicant's attorney to the employer's attorney which states in part:

"That with regard to future medicals please inform the applicant immediately if the employer has a problem with the applicant seeing Dr. Benedett on occasion in Missouri as this is to be a condition of the settlement with respect to future medical expenses".

The applicant's attorney also informed the employer's attorney that the applicant desires to be reimbursed for his travel expenses and that since Dr. Benedett was the applicant's initial treating physician and had been seeing the applicant on a yearly basis he did not think this request was unreasonable. The employer did not respond to the letter dated December 21, 1993 to object or indicate that there was a problem with the applicant seeing Dr. Benedett as a condition of the settlement. Also, included in the documents submitted into evidence is a record that the employer paid the applicant for his mileage and other expenses, as well as his examination with Dr. Benedett in Missouri in May 1994 subsequent to the limited compromise agreement.

However, the employer now objects to the payment for the applicant's treatment with Dr. Benedett in Missouri and contends that such treatment is not reasonable or necessary. The employer contends that the applicant could see Dr. Willis, a local ophthalmologist, who specializes in medicine and surgery for the cornea and external eye. The employer states that Dr. Benedett's treatment does not relate to the necessity or decision concerning any future surgery for the cornea and in the past the applicant did not see Dr. Benedett for that purpose but rather was referred to Dr. Willis. The employer contends that there is no need to travel to Missouri yearly for an examination when the physician in question has stated that there is no change that he can accomplish for the applicant's eye condition or complaints.

However, it was not established that the limited compromise agreement was based upon any fraud or mistake. The employer was informed that the applicant intended to include treatment with Dr. Benedett, on occasion in Missouri, as a term of the limited compromise agreement for future medical expenses. The employer did not respond and indicate that it had any problem with this arrangement prior to entering into the compromise agreement in January 1994. Further, the agreement itself specifically provides that the employer agrees to a reasonable choice of practitioners which shall include but not be limited to the applicant's prior and current practitioners which would include Dr. Benedett, and that the employer agreed to pay the reasonable expense of travel to obtain such examination and treatment.

The employer voluntarily entered into the agreement with the knowledge that such expenses could include trips to see Dr. Benedett in Missouri on occasion. Dr. Benedett treated the applicant and performed surgery and it does not seem unreasonable that the applicant would want to follow up with him on occasion. Based on the language of the limited compromise agreement, as well as the letter from the applicant's attorney to the employer's attorney on December 21, 1993, the parties clearly agreed that the applicant would retain the right to obtain medical treatment from prior practitioners including Dr. Benedett, and that such medical expense would include a trip to Missouri on occasion for such treatment. However, the commission also agrees with the administrative law judge that the applicant has confidence in the skills of Dr. Benedett, and that every effort should be made to make sure those skills are available to him, however the treatment and the travel to Springfield, Missouri, must be within the bounds of reasonableness. The administrative law judge appropriately noted that should the treatment and/or travel ever exceed the bounds of reasonableness then the department may wish to review the matter again. However, based on the evidence presented the administrative law judge appropriately held that further travel and treatment with Dr. Benedett in Springfield, Missouri, is reasonable and necessary to cure and relieve the applicant from the results of his work injury and that the employer shall be obligated to pay for them.

cc: ATTORNEY ROBERT NESEMANN
OLSON NESEMANN

ATTORNEY CRAIG A KUBIAK
LIEBMANN CONWAY OLEJNICZAK & JERRY SC

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