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

MARILYN FAY KRAUSE, Applicant

SENTRY FOODS, Employer

CIGNA INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93016343

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on September 26, 1994, following a hearing on August 30, 1994. 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 a February 10, 1993 compensable injury. Other concessions and stipulations are set out in the Findings of Fact and Conclusions of Law. The issue in this case is whether the conceded injury caused the applicant to suffer a mental disability and, if so, the nature and extent of that disability. Liability for medical expenses is also at issue. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby sets aside the administrative law judge's Findings of Fact and Interlocutory Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The respondent conceded a compensable work injury, specifically repetitive motion or cumulative trauma disorder from the applicant's work as a supermarket checker, with a date of injury or disability of February 10, 1993. The applicant underwent a surgery under general anesthesia on March 4, 1993, to cure and relieve the effects of the work injury.

The respondent concedes that the work injury caused disability at the arm and shoulder. As a result, the respondent conceded permanent partial disability at two percent disability compared to amputation of the arm at the shoulder and five percent compared to amputation at the wrist. The respondent has also conceded and paid temporary disability for the shoulder and wrist injury in the total amount of $3,335.17. Of this amount, $893.36 was paid for temporary disability during the periods from October 23 through November 1, 1993 and November 9 through December 6, 1993.

The dispute in this case centers on the applicant's claim that she suffered a disabling mental injury, severe (but not psychotic) depression with melancholia, as a result of pain and limitation of activity from the work injury and resultant surgery. She seeks temporary total disability from May 17, 1993 through January 10, 1994, in the stipulated amount of $2,592.52. The applicant also seeks permanent partial disability at 5 percent compared to permanent total disability to the body as a whole.

The facts in this case pose a so-called "physical-mental" condition where some physical stimulus, specifically the surgery, is the alleged cause of the mental disability. The supreme court has specifically held that "traumatic neurosis" caused by a work injury is compensable, but that claims from mental injury from a work accident must be examined carefully because of the danger of confusing it with malingering. Johnson v. Industrial Commission, 5 Wis. 2d 584, 589 (1958).

The applicant testified that after the surgery to her shoulder on March 4, 1993, she began feeling strange. She described feelings of nervousness and inability to sleep. She testified that her feelings were comparable to jitteriness and inability to sleep she experienced following an unrelated surgery in April 1981. She admitted, though, that she had at least one other surgery under general anesthesia without such effects.

There is little question that the applicant has a mental disability. The employer's independent medical examiner, Ralph Baker, M.D., diagnoses a major depressive disorder, although he opined the applicant had recovered from it sufficiently to be working by September 23, 1993. He opines that her depression was not caused directly by work or medication, but that:

"there are a number of factors involved in a major surgical procedure which could have triggered her depression. Further, there are a number of psychological factors which occur after surgery that could have triggered depression. Much of her self-esteem is based on getting out of the house and performing work. If she is incapacitated following surgery, I am sure this could be a major stress in and of itself."

Dr. Baker gives this opinion in a letter dated September 23, 1993, attached to his certified practitioner's report, Exhibit 1.

Dr. Baker wrote another letter on January 25, 1994, in which he contended that the surgery did not in fact cause the applicant's depression. Rather, he opined that she was depressed because she was lonely, since loneliness had been listed as a cause of an earlier bout of post-surgical depression in 1981. Dr. Baker went on to note when the applicant is incapacitated she cannot go to work which is her major source of gratification. Incapacity from work also caused the applicant to feel less worthwhile and prevented her from meeting people, according to Dr. Baker. This letter, too, was attached to Dr. Baker's certified practitioner's report.

The commission reads Dr. Baker's letters to opine that the effect of the surgery from the work injury, incapacity causing time off work, is what caused her depression. The commission concludes, therefore, the applicant suffered a mental injury caused by and arising out of her employment. She was also temporarily disabled from the mental injury at least through September 23, 1993, when Dr. Baker reported she could work.

The next question is whether the applicant has established temporary disability beyond September 23, 1993, or any residual permanent disability from the mental injury after she reached an end of healing.

At the hearing, the applicant introduced two practitioner's reports from her treating psychiatrist, Herbert Allen, M.D., (Exhibits B and I). Both state that the pain and limitation on activity from the work injury directly caused the applicant's depression. The earlier report dated July 22, 1993, states that the applicant had not yet reached an end of healing. The later report is dated August 29, 1994, and is attached to a June 27, 1994, treatment note. The report itself states the applicant still has symptoms and is left with a residual disability, which Dr. Allen rated at 5 percent compared to disability to the body as a whole.

However, neither report was submitted to the department and the respondent at least 15 days in advance of the hearing, as required under sec. 102.17 (1)(d), Stats., and sec. Ind. 80.22, Wis. Adm. Code. Nor does the record establish good cause for that failure. While Dr. Allen's second report is dated the day before the hearing, the commission cannot conclude that the applicant could not have obtained it earlier. The applicant testified that she had last seen Dr. Allen in June 1994 and that he ended her work restrictions in January 1994. Consequently, neither of Dr. Allen's reports are admissible.

In sum, the commission concludes that the applicant has not established good cause for failing to submit a timely certified practitioner's report establishing permanent partial disability for consideration at the hearing. The June 28, 1994 hearing notice indicated that the issue of primary compensation would be heard at the August 30, 1994 hearing, and the commission must conclude that the applicant could have obtained a timely certified practitioner's report, giving a plateau date and rating permanent partial disability, from Dr. Allen any time after he last saw the applicant in June 1994. Because Dr. Allen's reports may not be admitted into evidence, the record does not establish any disability after September 23, 1993 when Dr. Baker released the applicant to work. Consequently, the commission shall dismiss the claim for permanent partial disability arising from the applicant's mental injury.

The commission therefore finds that the applicant was temporarily disabled from May 17, 1993 through September 23, 1993. She is entitled to compensation for temporary partial disability at the stipulated rates in Exhibit 4 (see footnote 1) for the weeks ending May 22 through September 18, 1993, plus four-sixths of the stipulated rate for the week ending September 25, 1993. This, in turn, equals $2,063.66. After deducting the fees and costs described in the next paragraph, the amount remaining to be paid to the applicant within 30 days equals $1,570.98.

The applicant approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional temporary partial disability benefits awarded under this decision. The total fee is thus $412.73 (20 percent of $2,063.66.). In addition the applicant's attorney has established reimbursable costs of $79.95. The fees and costs shall be deducted from the applicant's total award and paid within 30 days.

The final issue is the reimbursement of medical expenses. Although the commission only awards temporary partial disability through September 23, 1993 based on Dr. Baker's report that the applicant could report to work without restrictions, the commission cannot conclude that no further treatment was necessary after that date. Indeed, Dr. Baker noted in his letters of September 23 and January 25 that a return to work would be therapeutic, suggesting that further treatment might be indicated. From the commission's review of the medical records, bills for medical expenses after September 23, 1993 are only for medication and a few office visits with Dr. Allen. Thus, while the record is not sufficient to meet the applicant's burden of proving compensable disability from the mental injury after September 23, the record is sufficient to permit compensation of all the treatment medical expenses submitted.

The applicant incurred reasonable and necessary medical expenses to cure and relieve the effects of the mental disability, which are compensable as follows: to UFCW, an non-worker's compensation insurer, $8,790.86 as reimbursement for treatment expenses paid by it; to the applicant, $764.22 as reimbursement for medical treatment expenses paid by her; to the applicant, $339.60 for medical mileage paid by her; to Dr. Carroll, $90.00 for medical treatment; to La Salle Clinic, $15.50 for medical treatment expenses; to Radiology Associates of Appleton, $48.55 for medical treatment expenses.

This order is left interlocutory to retain jurisdiction for applicant's claims of bad faith and delayed payment, the other grounds enumerated under sec. 102.18 (4)(a), Stats., and other issues not resolved by this decision. However, this decision is final with respect to further claims for primary compensation from the mental disability considered herein.

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

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed in part and reversed in part. That part of the application dealing with compensation for permanent disability from the applicant's mental disability is dismissed. Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Marilyn Fay Krause, the sum of One thousand five hundred seventy dollars and ninety-eight cents ($1,570.98) for disability.

(2) To the applicant's attorney, Scott Woldt, the sum of One thousand three hundred seventy dollars and no cents ($1,370.00) as attorney fees and Seventy-nine dollars and ninety-five cents ($79.95) as costs.

(3) To the applicant, the sum of Seven hundred sixty-four dollars and twenty-two cents ($764.22) as reimbursement for medical treatment expenses paid and Three hundred thirty nine dollars and sixty cents ($339.60) as reimbursement for medical mileage.

(4) To UFCW, the sum of Eight thousand seven hundred ninety dollars and eighty-six cents ($8,790.86).

(5) To Jeffrey Carroll, M.D., the sum of Ninety dollars and no cents ($90.00) for medical treatment expenses.

(6) To La Salle Clinic, the sum of Fifteen dollars and fifty cents ($15.50) for medical treatment expenses.

(7) To Radiology Associates of Appleton, the sum of Forty-eight dollars and fifty-five cents ($48.55) for medical treatment expenses.

Jurisdiction is retained to issue further orders as provided in this decision.

Dated and mailed April 25, 1995
ND § 5.18  § 5.20  § 8.24

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The administrative law judge admitted the earlier of Dr. Allen's two practitioner's reports (Exhibit B), as a trade-off for admitting medical records submitted by the respondent at the hearing also without 15 days notice. However, as the administrative law judge noted, the statutes do not require 15 days advance notice for simple medical records as they do for a practitioner's report containing an expert medical opinion. Hospital and physician records must be certified by a custodian of the record to be admissible under sec. 102.17 (1)(d), Stats., but the 15- day rule applies to certified reports rendering expert opinions, not records of treatment. The commission is therefore unwilling to treat the admission of Dr. Allen's report as a "quid pro quo" for the admission of respondent's Exhibit 3.

The respondent argues that Dr. Baker only states what "could be" so his opinion does not meet the requisite level of medical certainty. However, the commission must disagree. After reading his letters, the commission is satisfied that Dr. Baker's opinion is sufficient to establish that the applicant's inability to work due to the surgery was the cause of her mental disability. The fact that Dr. Baker on one occasion used the word "could" does not change the fact that Dr. Baker states on two occasions that incapacity following surgery was the cause of her depression.

Because witness credibility and demeanor were not factors in the commission's resolution of this case, the commission did not confer with the administrative law judge. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC

ATTORNEY SCOTT C WOLDT
CURTIS WILDE & NEAL

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