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

GARY KRETSCHMER, Applicant

GENERAL STAMPING CO INC, Employer

REGENT INSURANCE CO, Insurer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997012273 and 1999034099

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (the Department) 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, except that it makes the following modifications:

1. Delete the first full sentence starting on page 2 of the ALJ's decision, and substitute:

"Each carrier is ordered to pay 50 percent of the past neck-related, reasonable treatment expenses (unpaid and out-of-pocket from February 23, 1999 to August 24, 1999.)"

2. Delete the fourth full sentence starting on page 2 of the ALJ's decision.

3. Delete the second sentence of the second paragraph of the ALJ's Order (the last sentence on page 2 of the ALJ's decision.)

ORDER

The pre-hearing order of the administrative law judge, as modified, is affirmed.

Dated and mailed September 28, 1999
kretsch . wmd : 101 : 7 ND § 8.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant injured his neck on February 6, 1997 (when Regent was on the risk), and underwent surgery in July 1997. The surgery helped, and the applicant was able to return to work, though he missed an occasional day.

The applicant contends he reinjured his neck in February 1999 (while Connecticut General was on the risk). His treating doctor (T. J. Flatley, M.D.) has scheduled further cervical surgery. (The surgery is scheduled for October 4, 1999, hence the "expedited" status of this case.) The applicant's application for hearing was served on the adverse parties on May 20, 1999.

Connecticut General retained an independent medical examiner, Richard Lemon, M.D., who examined the applicant on July 19, 1999. Dr. Lemon opines that any problems from the 1999 injury were only temporary, and that the applicant's continuing increased symptoms is a manifestation of the pre-existing degenerative disease, his previous surgery, and some amount of symptom magnification. He also opines that, regardless of causation, the applicant should not undergo further surgery. Connecticut General filed Dr. Lemon's report with the department on August 18, 1999.

At a pre-hearing conference on August 23, 1999, ALJ Arnold ordered the insurers to split ongoing temporary disability. She also ordered the insurers to pay past and future medical expenses, subject only to a deduction for reasonableness of expense. ALJ Arnold issued an written decision memorializing her order on August 24, 1999.

The employer and both Regent and Connecticut General (the respondents) appeal ALJ Arnold's order, raising only the issue of future medical expense. To summarize, the respondents assert that Dr. Lemon has placed the necessity of the October 1999 surgery proposed by Dr. Flatley in question. Since the necessity of the future treatment is at issue, the respondents argue, it cannot be the subject of an order requiring the insurers to split the expense.

The commission agrees. Wis. Stat. § 102.175(2) provides:

"102.175(2) If after a hearing or a prehearing conference the department determines that an injured employe is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the department may order one or more parties to pay compensation in an amount, time and manner as determined by the department. If the department later determines that another party is liable for compensation, the department shall order that other party to reimburse any party that was ordered to pay compensation under this subsection."

The department's interpretative footnote to this section provides:

"This authorizes the department to order interim payments in order to relieve the hardship for an injured employe where the only issue is which party is responsible for payment."

Footnote 82, DWD's Worker's Compensation Act of Wisconsin with amendments to January 1, 1998, WKC-1-P(R. 2/99).

The commission reads Wis. Stat. § 102.175(2) to allow an ALJ to order payment after a pre-hearing conference when he or she determines that the applicant is entitled to a particular type of compensation, and that there is no issue with respect to that type of compensation except which insurer is liable. Thus, an ALJ may order the payment of temporary disability prior to hearing under Wis. Stat. § 102.175(2) when it is clear that an injured worker has not yet plateaued from a work injury, even though the parties may dispute the extent of permanent disability later on. Likewise, if the applicant is entitled to medical expense, and the only issue with respect to the expense is which worker's compensation insurer should pay them, an order under Wis. Stat. § 102.175 is appropriate despite the existence of a dispute about the amount of other forms of compensation. Michael J. Silvasi v. C.D. Smith Construction Inc., et al., WC Claim no. 1990050047 (April 13, 1999).

In this case, the respondents correctly observes that Dr. Lemon's report puts necessity of future treatment, specifically the cervical surgery proposed by Dr. Flatley, at issue. (1) Consequently, the commission amends ALJ Arnorld's prehearing order to eliminate the requirement that the insurers split the future medical expense.

The commission takes this action for a second reason. The part of ALJ Arnold's order which orders payment of future medical expense is essentially prospective. In general, the commission and ALJs lack authority to issue orders specifically requiring payment of expenses not yet incurred, (2) (though the commission does approve findings that a proposed treatment is reasonable and necessary to cure a work injury when that specific issue has been litigated at a hearing. (3))

cc: ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC

ATTORNEY CHARLES M SOULE
CASTAGNA EVEN CAFARO & SOULE

ATTORNEY PAUL M ERSPAMER
JASTROCH & LA BARGE SC

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Footnotes:

(1)( Back ) In the past, it might have been argued that Dr. Lemon's report was inadequate to put the necessity of treatment at issue. Under Spencer v. DILHR, 55 Wis. 2d 525 (1972), insurers were required to pay medical expense incurred in good faith even if LIRC or DWD credited a doctor who said the surgery was not necessary. However, effective with injuries occurring on or after January 1, 1998, the Spencer holding is effectively overruled by statutory changes. See 1997 Wis. Act 38, SECTIONS 33 and 49; Wis. Stat. § 102.03(4). Bielarczyk v. Twin Disc, Inc., WC case nos. 1994014654 and 1995045946 (June 30, 1999). In this case, the dates of injury were in 1997 and 1999; since the later injury is after January 1, 1998, necessity of treatment is an issue that may be disputed before ALJ Arnold when she holds her hearing.

(2)( Back ) Levy v. Industrial Commission, 234 Wis. 670 (1940); Ramirez v. Grede Foundries, WC claim no. 92-042919 (LIRC, November 21, 1993); and Stidham v. Martin Transport, WC claim no. 89-070496 (LIRC, February 28, 1992).

(3)( Back ) David L. Beuthien v. Weekly Timber and Pulp, WC Claim no. 1985042866 (June 15, 1999).