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

WILLIAM C CAMPBELL, Applicant

RONALD ROTH TRUCKING, Employer

LAND STAR RANGER INC, Employer

NATIONAL UNION FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996043012

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 24, 1998. Respondents submitted answers to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to a conceded work injury occurring on August 25, 1995.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is April 22, 1960, was employed as an over-the-road truck driver for the employer. On August 25, 1995, he was driving a tractor trailer in Illinois when a minivan pulling a trailer crossed into his lane. His truck struck the trailer, but he did not lose control of his vehicle and was able to bring it to a stop. He was wearing a seat belt and shoulder harness. He testified at the hearing that the accident caused pain in his neck and left shoulder, and that as he was exiting the truck cab, he missed a step and landed on his tailbone on the first step.

The applicant received emergency care at Saint Joseph's Medical Center in Bloomington, Illinois, where a nurse's note recorded the applicant's statement that he had twisted his body during the accident to look at what happened, and had felt a "pop" between his shoulder blades. He complained to the physician of neck and interscapular pain and was referred to his own physician with a diagnosis of cervical and thoracic strain. The employer's owners came to Bloomington and drove the applicant home in their automobile.

The applicant was seen at the Saint Vincent Hospital emergency room in Green Bay on August 28, 1995, where the physician recorded the accident as having caused the applicant to turn his head sharply. The physician also recorded that as the applicant exited the cab, he slipped on the last step causing a pulling injury to his left arm. Finally, the physician recorded that the applicant's neck and back were sore initially, and his current complaints were left-sided neck pain, headaches, and dizziness. The diagnoses were acute cervical and lumbar muscular strains, as well as muscle tension cephalgia.

The applicant was seen by Dr. Michael McCray on September 6, 1995, and Dr. McCray diagnosed muscle strain of the neck, shoulder, and back. He excused the applicant from work and prescribed medication. Following continued conservative treatment, Dr. McCray referred the applicant to Dr. Lester Owens on October 31, 1995.

Dr. Owens diagnosed soft tissue injuries to the applicant's neck and left posterior shoulder girdle, as well as thoracic and lumbar spine pain without objective findings. Dr. Owens opined that the applicant's course of treatment had been adequate, that he had reached a healing plateau, and that there was no permanent disability. On October 31, 1995, Dr. McCray concurred with Dr. Owens' evaluation, and indicated the applicant could return to work with no restrictions.

The applicant then sought treatment from Dr. Robert Gruesen beginning on November 14, 1995. On November 16, 1995, Dr. Gruesen ordered MRI scans of the applicant's cervical and lumbar spine, as well as of his left shoulder. The lumbar spine was seen as normal except for diffuse posterior bulging at L5-S1 with no significant evidence of neural foraminal compromise. The cervical spine was normal except for minimal bulging at C5-6. The shoulder was seen as having degenerative spurring and subchondral cyst formation at the rotator cuff insertion site on the humerus, possible biceps tendonitis, and a possible inflammation or tear involving the glenohumeral joint. Dr. Gruesen referred the applicant to Dr. Richard Horak for the left shoulder problem, and on December 19, 1995, Dr. Horak performed a left subacromial decompression and acromioclavicular joint resection. This procedure revealed an intact labrum and rotator cuff with hypertrophic bursal tissue and spurring about the acromioclavicular joint. On August 28, 1996, Dr. Horak assessed five percent permanent partial disability with no further surgical intervention warranted. Dr. Horak's clinic notes and opinions do not discuss causation, except for the first clinic note dated December 6, 1995, in which Dr. Horak took a history of the accident occurring on August 25, 1995. He noted, without elaboration, that the applicant told him he had sustained pain in his left shoulder and neck from this incident.

On October 3, 1996, Dr. Gruesen referred the applicant to Dr. Kaarn Heida, a rehabilitation medicine specialist. She took a history of immediate onset of pain in the mid to lower back and neck occurring in the accident of August 25, 1995. She diagnosed coccygodynia (pain in the coccyx), as well as neck and left shoulder pain. She indicated that the pain appeared to be soft tissue related, and prescribed Amitriptyline, physical therapy, and heat/ultrasound treatment. She saw the applicant on March 20, 1997, and recorded that he had slipped and fallen on the ice on February 24, 1997, resulting in an exacerbation of his myofascial pain. On September 30, 1997, Dr. Heida completed a WC-16-B which found work causation and assessed six percent permanent partial disability. In a letter dated September 2, 1997, Dr. Heida assessed five percent permanent partial disability attributable to pain and loss of motion in the neck and coccyx.

On April 18, 1997, the applicant was examined by Dr. Gay Anderson, at the insurer's request. Dr. Anderson opined that the applicant suffered no significant injury and no permanent disability from the work incident of August 25, 1995. Dr. Anderson subsequently reviewed the applicant's MRI scans, and concluded they were all within normal limits for an individual the applicant's age.

On May 15, 1997, Dr. Owens updated his opinions with a thorough evaluation of the medical history beginning with the incident of August 25, 1995. He reiterated his opinion that no further medical or surgical treatment was indicated for the soft tissue injuries resulting from the incident. He also noted that the applicant had a pre-1985 history of left shoulder difficulty, which was inconsistent with what the applicant had told him. On June 1, 1997, Dr. Owens submitted another addendum to his opinion in which he concurred with Dr. Anderson's opinion.

On October 9, 1996, Dr. Gruesen completed a WC-16-B which assessed five percent permanent partial disability to the whole body, attributing direct causation to the work injury. Dr. Gruesen's description of the incident is found in a letter dated November 21, 1995. He noted that the applicant's truck was struck by another vehicle, that the applicant turned the truck quite rapidly, and that this apparently jarred him or jerked him about in the cab. The description continues that the applicant stopped the truck and noted the onset of pain ". . . in the back, middle of the back, and neck." Dr. Gruesen indicated his neurological diagnosis was of a soft tissue injury to the neck, and mid and lower back, without any underlying structural deficit. He indicated the left shoulder injury was to be evaluated by Dr. Horak.

The commission concurred with the administrative law judge's finding that Dr. Owens' medical opinion was credible. The applicant did not report low back or coccyx symptoms to the emergency medical personnel at the scene of the accident, or to the physician at Saint Joseph's Medical Center. In addition, none of the medical records are consistent with the applicant's testimony that he missed a step and landed on his tail bone as he was exiting his truck. That testimony is not credible. Even were it to be accepted that the applicant sustained a low back strain and/or an unspecified injury to his coccyx, it is clear from Dr. Owens' opinion that the applicant was completely healed by October 31, 1995, and the applicant has been reimbursed for disability up to that date.

The administrative law judge also properly dismissed the applicant's claim for a compensable left shoulder injury. The applicant had preexisting history of left shoulder difficulty, and neither Dr. Horak, Dr. Gruesen, nor Dr. Heida submitted a credible medical explanation of how the work incident allegedly aggravated that preexisting condition or caused a new one. Additionally, there is inconsistency in the medical records, and between those records and the applicant's hearing testimony, concerning the alleged straining of the left arm as the applicant descended the truck cab steps. Dr. Owens' opinion that any shoulder difficulties the applicant experienced were not related to the work injury is accepted as credible.

Dr. Owens' opinion that the applicant sustained soft tissue injuries to his cervical and thoracic spine, and reached a healing plateau without permanent disability on October 31, 1995, is accepted as credible. This entitles the applicant to temporary total disability from August 25, 1995 through October 22, 1995, and from October 29, 1995 through October 31, 1995, for a total of eight weeks and two days. At the applicable rate of $341 per week this amounts to $2,841.66. The employer and its nonindustrial insurer have made disability payments in excess of that amount to the applicant for these periods, leaving no balance due to him.

The administrative law judge found that the applicant's treatment at the emergency room of Saint Joseph's Medical Center constituted his first choice of practitioner under Wis. Stat. § 102.42(2). The commission interprets Wis. Stat. § 102.42(2) to allow emergency treatment at an emergency room as treatment not constituting a "choice" under the statutes. See Trent Gmeiner v. Bemis Manufacturing Company, WC Claim No. 94071938 (LIRC, June 5, 1997) and Judy Mrdutt v. Cardinal FG, WC Case No. 93067412 (LIRC, September 18, 1996). The Mrdutt decision was affirmed in circuit court and in an unpublished court of appeals decision. Accordingly, the applicant's first choice of practitioner was his non-emergency treatment at Saint Vincent Hospital emergency room which referred him to Dr. McCray. Dr. McCray referred him to Dr. Owens. Dr. Gruesen was the applicant's second choice of practitioner, and he referred him on separate occasions to Dr. Horak and to Dr. Heida.

The applicant's shoulder treatment was for a non-work- related condition, and the inconsistencies detailed above lead the commission to infer that any other treatment the applicant sustained subsequent to October 31, 1995, was not received in good faith and is not compensable.

The applicant incurred medical bills which he paid in the amount of $204 to Emergency Physicians Service, $149 to The Health Center, and $33 to Dr. McCray. These were for services related to the work injury and incurred on or before October 31, 1995, and the applicant is due reimbursement for them. He is also due reimbursement for $270.57 in prescription medical expense which was incurred on or before October 31, 1995. Additional unpaid medical treatment expenses are denied because they were incurred subsequent to October 31, 1995. Additional unpaid prescription expenses are denied because they were either incurred subsequent to October 31, 1995, or were not sufficiently identified in the record as to be found related to the work injury.

The applicant credibly testified that he incurred medical mileage expense prior to October 31, 1995, and the administrative law judge found that approximately $82 worth of such expense had been incurred. However, when the commission consulted with the administrative law judge he was unable to recall where in the record he had found support for the medical mileage expense claim, and the commission is unable to locate such support in the record. It is possible that this evidence is in the department's file concerning the applicant's case. Given this confusion, the commission exercises its discretion to leave this order interlocutory solely with respect to medical mileage expense for the period between the date of injury and October 31, 1995. The applicant should submit another claim to Roth Trucking and Land Star Ranger detailing the medical mileage expense he incurred between these dates. Absent disagreement, immediate payment at the applicable rate should be made by Roth Trucking to the applicant for such claim, or by Land Star Ranger or its insurer if Roth Trucking is unable to pay. Any dispute regarding the applicant's mileage claim is subject to adjudication before the department. This order is final in all respects other than the single issue of medical mileage expense between the date of injury and October 31, 1995.

There is no indication in the record that the applicant and his attorney agreed that the attorney would receive a fee against any medical expenses awarded to the applicant, and therefore no attorney fees will be protected in this order.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within 30 days from this date, Ronald Roth Trucking, or Land Star Ranger and National Union Fire Insurance Company shall pay to the applicant as reimbursement for medical treatment and prescription medical expense the total amount of Six hundred fifty-six dollars and fifty-seven cents ($656.57). Jurisdiction is reserved solely with respect to the applicant's claim for medical mileage expense incurred between the date of injury and October 31, 1995.

Dated and mailed: January 29, 1999
campbwi.wrd : 185 : 7 ND § 5.48 , ND § 8.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The administrative law judge indicated to the commission that he left the order interlocutory with respect to the applicant's neck and mid-back, because he believed such action was required by Lisney v. LIRC, 171 Wis. 2d 499, 493 N.W.2d 14 (1992). The administrative law judge agreed with the commission that no credible case was presented for permanency to the neck, mid-back, or any other area of the applicant's body. Lisney held that Wis. Stat. § 102.42(1) requires respondents to pay medical expenses even after a final order has been issued by the department or the commission. There is no requirement in Lisney that the commission refrain from issuing final orders when it is appropriate, nor is there any holding in Lisney that a claim for disability, as opposed to medical expense under Wis. Stat. § 102.42, may be resubmitted after a final order has been issued. For the reasons noted in its decision, the commission found it appropriate to issue a final order regarding all issues in this case, with the sole exception of the issue of medical mileage expense for a limited period of time.

The applicant asserted that it was improper to rely on evidence gleaned from allegedly hearsay medical records submitted as exhibits. Such medical records are within the hearsay exceptions of Wis. Stat. § 908.03(4) and/or 908.01(4)(a)1.

The applicant also asserted that he was denied due process because he was not given an opportunity to cross-examine Dr. Owens or Dr. Anderson, and because Dr. Zemen's allegedly untimely medical report was admitted into evidence. The record does not indicate that either Dr. Owens or Dr. Anderson was subpoenaed to the hearing held on February 26, 1998, and there is no indication that the applicant was prevented or impeded from subpoenaing them. The record also fails to disclose the date Dr. Zemen's medical report was submitted to the applicant and to the department, and fails to indicate any objection to acceptance of the report into evidence at the hearing held on February 26, 1998. Accordingly, the applicant has failed to demonstrate any violation of due process or department rule.

cc: ATTORNEY LYNNE A LAYBER

ATTORNEY MARY BETH CALLAN
DENISSEN KRANZUSH MAHONEY & EWALD SC

ATTORNEY PAUL RIEGEL
MICHAEL BEST FRIEDRICH

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]