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


KERRY SIMIEN, Applicant

MILWAUKEE MUSTANGS ARENA FOOTBALL, Employer

TRAVELERS CASUALTY AND SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997008796


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: September 29, 1998
simieke . wsd : 101 :  8   ND § 5.48

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, a football player for the Milwaukee Mustangs franchise in the Arena Football League, sustained a conceded knee injury on or about June 9, 1996. The issues in dispute before the ALJ were wage, nature and extent of disability, and liability for medical expense. After the hearing, the ALJ obtained briefs from the parties. The post-hearing briefs focused on two issues: the applicant's wage and the employer's liability for temporary disability.

The ALJ found a wage at the maximum for compensation purposes, and paid temporary disability for the periods requested by the applicant. She also ordered paid about $8,800 in outstanding treatment expense from Will E. Moorehead, M.D., a Texas surgeon, who performed arthroscopic surgery on the applicant's injured knee.

On appeal to the commission, the employer and its insurer (collectively, the respondent) limited their petition to the specific issue of Dr. Moorehead's medical expenses, and asked for a briefing schedule. Although the commission issued a briefing schedule, the respondent failed to submit a brief. Given this posture, the commission limits its review to the issue on which the respondent sought review: Dr. Moorehead's medical expense.

According to the ALJ's decision, the employer argued at the hearing that it should not be liable for Dr. Moorehead's bills for two reasons:

Dr. Moorehead was an out-of-state physician; and

The employer's IME (Gary Guten, M.D.) only gave advance approval to a diagnostic arthroscopy and a limited lateral procedure, and not the more extensive procedure actually performed by Dr. Moorehead after assessing his condition based on the diagnostic arthroscopy.

While an injured worker does not have unfettered choice of an out-of-state practitioner, he may treat with an out-of-state practitioner either on referral by an in-state doctor (1) or with the agreement of the insurer. (2) In this case, the applicant testified that his Milwaukee doctor (Raasch) referred him to Dr. Moorehead in Texas, but the medical record does not clearly establish a referral. However, it is clear that the insurer agreed to and authorized treatment by Dr. Moorehead; indeed, the report of the IME Guten details at length a conversation between Drs. Guten and Moorehead regarding the course of treatment for the applicant. Exhibit 2, page 5. And, of course, the applicant had been treating with Dr. Moorehead before IME Guten was involved and the insurer paid those bills without objection. See exhibit B.

The ALJ also properly rejected the respondent's argument that the treatment done by Dr. Moorehead went beyond its limited approval as expressed by Dr. Guten in his phone call with Dr. Moorehead. First, the phone call in which IME Guten expressed his preference for limited arthroscopic knee surgery came after the applicant had been treating (with the insurer's approval) with Dr. Guten for several months. Moreover, Wis. Stat. § 102.42(2)(a) states that "by mutual agreement, the employe may have the choice of any qualified practitioner not licensed in this state." The "mutual agreement" by statute refers to the choice of the doctor, not on the scope of the treatment he will provide. Here the insurer agreed to let the applicant treat with Dr. Moorehead. Having made that agreement, the employer is liable for all the treatment rendered in good faith to treat that injury, even if it gets another doctor who subsequently opines that some of the treatment was not necessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). (3)

The commission has recognized a limited exception to Spencer in cases where a provider starts the dispute resolution procedure under Wis. Stat. § 102.16(2m). (4) In those cases, if the insurer follows the necessary procedural steps, it may obtain an opinion from an independent expert named by the department on necessity of treatment, and that expert's opinion is more-or-less final. However, while the provider (Moorehead) evidently started the dispute resolution procedure, the insurer did not complete the procedure and so is not entitled to the benefit of an independent expert.

Finally, the commission concludes that it would be unreasonable on these facts to hold Dr. Moorehead to Dr. Guten's pre-surgery opinion that an extensive procedure would be unwarranted. Determining the extent of damage and proper procedure to repair it was the whole purpose of a diagnostic arthroscopy. As the ALJ pointed out, Dr. Guten did not re-issue his opinion after the surgery, so the commission has no idea what he would make of the diagnostic arthroscopy.

cc: ATTORNEY ROBERT A FIGG
EISENBERG WEIGEL CARLSON BLAU REITZ & CLEMENS SC

ATTORNEY JEFFREY R MUNSON
SPINDLER ROITBURD SCHWEMER & MUNSON


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Footnotes:

(1)( Back ) UFE Inc. v. LIRC, 201 Wis. 2d 274 (1996). UFE has been temporarily over-ruled by 1997 Wis. Act, Sections 43, 44 and 48(5) for a two-year trial period. However, the temporary over-ruling applies to referrals to out-of-state doctors made from January 1, 1998 through December 31, 1999, and so does not apply to this case.

(2)( Back ) Wis. Stat. § 102.42(2)(a).

(3)( Back ) The Spencer court wrote: `where an employee, in good faith, accepts the recommendation of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment [additional temporary disability, greater permanent disability, and further medical expense] because it finds the treatment was either unnecessary or unreasonable." Id. See also Oldham v. LIRC, case no. 92-2145 (Wis. Ct. App., December 2, 1993).

(4)( Back ) Mary Sommerfeldt v. Ace Ripon Hardware, WC claim nos. 93039786, 92053398, and 90035314 (LIRC, December 13, 1995), appeal dismissed sub nom. Ace Ripon Hardware, et al. v. Mary Sommerfeldt, et. al., case no. 96-CV-8 (Wis. Cir. Ct. Fond du Lac County, September 6, 1996). See Neal & Danas, Workers Compensation Handbook, § 5.47 (4th ed., 1997).