Wis.LIRC WC Decision: Kopp - October 29, 1998 - ND � 5.46 - Employer's Liability for Medical Expense; � 5.48

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

RICHARD E KOPP, Applicant

SPECTRUM ELECTRIC INC, Employer

REGENT INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997020312

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: October 29, 1998
koori . wsd : 101 : 2 � 5.46 5.48

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

A recitation of the underlying facts in this case is included to aid in the analysis of the applicant's legal arguments.

The applicant, an electrician, suffered a conceded July 30, 1993 work injury to his neck when he attempted to lift a desk by pushing on it from underneath with his neck while laying cable. The issue in this case is limited to the compensability of medical expense.

After attempting to lift the desk with his neck on July 30, 1993, the applicant immediately experienced continued pain, and reported the injury the next day. Two weeks later, on August 10, 1993, the applicant saw William F. Stineman, M.D., at the walk-in clinic at Franklin Medical Center. Dr. Stineman diagnosed neck pain and prescribed heat and some medication.

More critical in this case are Dr. Stineman's recommendations regarding follow-up care. Dr. Stineman told the applicant he should see a specialist if his condition worsened. Indeed, Dr. Stineman's treatment note at exhibit 4 lists the follow-up recommendation of "no immediate follow-up advised, may follow-up with physician or clinic as needed one week." Dr. Stineman made this recommendation by marking a box on a form. Significantly, the doctor did not mark other alternatives on the form, including a referral to other doctors in the Franklin Clinic; referral to a named specialist; or "recommend follow-up on (date)."

Two weeks later, on August 23, 1993, the applicant began treating with Scot Simkowski, D.C., who practices under the trade name of "Corrective Spinal Care." In a letter to the respondent's attorney dated March 3, 1998, Dr. Simkowski noted the prior treatment at the Franklin Medical Clinic, but did not indicate a referral by the Clinic or Dr. Stineman. For his part, Dr. Simkowski treated the applicant for five months on a diagnosis of cervical neuralgia and neuritis, during which time he referred the applicant to Associated Physical Therapists in Milwaukee. Ultimately, Dr. Simkowski opined, the applicant reached a healing plateau with a three percent permanent partial disability to the cervical spine. Dr. Simkowski recommended a once-every-three-months program for maintenance chiropractic treatment.

The applicant did not seek treatment again until October 1995. At this point, he saw another chiropractor, C. Jordan, who was recommended by the applicant's mother. The applicant testified that Dr. Jordan then referred the applicant to Ronald J. Cooper, M.D. While there is some reason to question this testimony, based on a letter from Dr. Jordan in exhibit 2, the notes of Drs. Cooper and Jordan (exhibits 6 and 7) could be read to indicate a referral. At any rate, Dr. Cooper adjusted the applicant's medication and referred him back to Dr. Jordan for adjustments.

The applicant testified that Dr. Cooper at some point also referred him to an orthopedic specialist, Gregory VanWinkle, M.D. However, Dr. Cooper's notes do not indicate a referral, nor do Dr. VanWinkle's. Indeed, Dr. VanWinkle's notes specifically indicate the applicant was referred by his attorney. Ultimately, Dr. VanWinkle ordered an MRI which showed disc herniations at C5- 6, C6-7, C7-T1, and (to a lesser extent) at C3-4, a problem Dr. VanWinkle attributed to the July 30, 1993 work injury.

Wisconsin Statutes � 102.42(2)(a) provides:

"102.42(2)(a) The employer shall supply such medical, surgical, chiropractic ... and hospital treatment ... as may be reasonably required to cure and relieve from the effects of the injury and [if the employer does not supply the treatment directly] the employer shall be liable for the reasonable expense incurred by or on behalf of the employe in providing such treatment. ... The employe has the right to a 2nd choice of attending practitioner on notice to the employer and 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."

Stated another way, an injured worker is allowed only two "free" choices of practitioner; prior approval must be obtained from the insurer or employer for treatment beyond the second choice of practitioner (except that referrals or treatment with partners are considered treatment by the referring doctor.) Wisconsin Statutes � 102.42(2)(a). Unapproved treatment expense from practitioners beyond the second choice is not compensable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996). (1 )

The main question, then, is at what point the "third choice" of practitioner began. The applicant first saw Dr. Stineman, who recommended the applicant see a specialist if his condition worsened. The applicant second saw Dr. Simkowski, who did not refer the applicant anywhere. The applicant third saw Dr. Jordan, who possibly referred him to Dr. Cooper. After that, the applicant treated with Dr. VanWinkle, allegedly on referral from Dr. Cooper, though frankly the record does not support the applicant's testimony on this point.

The ALJ found that Dr. Stineman was the applicant's first choice of treating practitioner and that Dr. Simkowski was the second choice. Since the applicant clearly saw the third practitioner, Dr. Jordan, on his mother's referral, that was the third choice, and treatment beginning at that point was no longer compensable without approval from the respondent. The commission agrees with the ALJ's reasoning.

Exactly what constitutes a referral may be open to interpretation, but prior commission decisions provide some guidance. On one occasion, the commission found a referral to the Mayo Clinic based on a doctor's note that the applicant did not accept his diagnosis "so we are referring her for a third opinion from a hand surgeon at Mayo with these records." Marianne Olson v. Northern Engraving Corporation, WC claim no. 90-053540 (LIRC, December 30, 1992). On another occasion, the commission found that a treating doctor's statement that a worker "should consider obtaining either more testing locally or an opinion from the Mayo Clinic" did not constitute a referral. Jack Falluca v. Palermo Villa, Inc., WC claim no. 88013914 (LIRC, December 6, 1995).

Dr. Stineman's follow-up recommendations did not constitute a referral in this case. Among the alternative choices on the form he used to recommend follow-up treatment, Dr. Stineman clearly chose the most open-ended which was essentially advice to seek medical treatment if the applicant thought it necessary. Dr. Stineman's recommendation did not result in "treatment by a practitioner on referral from another practitioner."

The applicant also argues that, even if Dr. Jordan was beyond the second choice, the employer should still be liable for failing to tender a choice under Wis. Stat. � 102.42(3) (2 ). The applicant's argument seems to be that, despite paying for the treatment by Drs. Stineman and Simkowski, the employer did not actually tell the applicant he had the right to choose them and that treatment beyond those choices would not be reimbursed.

However, the commission cannot accept that argument in this case. The commission has held that refusing to pay for medical treatment is equivalent to not tendering that choice. Caraballo v. Racine Steel Casting Co., WC case no. 9103039420 (LIRC, November 1, 1993). In this case, the insurer paid for the first two choices. The commision declines to hold that the statutory requirement of tendering a choice requires some formal notification procedure by the employer given the facts in this case.

Finally, the applicant argued before the ALJ that the treatment by Dr. Stineman was emergency treatment which did not constitute a "choice." (3 ) However, Dr. Stineman treated the applicant ten days after the injury occurred, without loss of work time. (4 ) The ALJ properly concluded that the treatment by Dr. Stineman was not emergency treatment.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD

ATTORNEY OYVIND WISTROM
LINDNER & MARSACK SC

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Footnotes:

(1)( Back ) The court of appeals has recently held that the "choice" is made by seeking reimbursement for the expenses incurred with a treating practitioner, not the act of seeking treatment itself. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 621-23 (Ct. App. 1998). However, because the applicant has evidently sought reimbursement from all the medical practitioners who rendered treatment, including specifically Drs. Stineman and Simkowski, the commission concludes that the holding in Hermax does not affect this case.

(2)( Back ) 102.42(3) Practitioner choice unrestricted. If the employer fails to tender treatment as provided in sub. (1) or choice of an attending practitioner as provided in sub. (2), the employe's right to choose the attending practitioner is not restricted and the employer is liable for the reasonable and necessary expense thereof.

(3)( Back ) In the past, the commission has held that day-of-injury treatment at a walk-in "Redi-Med" clinic when an applicant became unable to work immediately after a work injury should not be counted as a choice, since it is the functional equivalent of emergency care. Pastrich v. Fitness Works, WC case no. 96042324 (LIRC, April 6, 1998). In Pastrich, the commission expressly limited its holding to day- of-injury treatment where follow-up at the clinic was not shown to be an option.