Wis.LIRC WC Decision: Moreau - September 28, 1999 - ND � 8.18 - Hearing Procedure; Location and Notice; � 8.19 - Right to Further Hearing - Issues for hearing, adequacy of notice -- issues concerning surgery scheduled and performed after notice went out

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

KATHERINE MOREAU, Applicant

JEROME FOODS INC, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995035538

ORDER

Pursuant to its authority under Wis. Stat. � 102.18(3) the commission sets aside ALJ Lawrence's February 8, 1999 order in this case, and remands the matter for further hearing (and another decision) to the Division of Worker's Compensation in the Department of Workforce Development to include the issue of the liability of the employer and the insurer for the medical expense and disability resulting from the applicant's November 18, 1999 surgery.

Dated and mailed September 28, 1999
moreau.wpr : 101 : 7 ND � 8.18 � 8.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's remand order is based on the relatively complicated procedural history of this case. The applicant injured her knee in December 1994 when she twisted her knee stepping off a platform at work. She claimed the injury caused disability and the need for arthroscopic knee surgery in April 1995. ALJ Ryan denied the claim. This commission reversed, and in May 1998 ordered the surgery expense paid. However, the commission reserved jurisdiction on the extent of post-surgery temporary disability and permanent partial disability.

On September 17, 1998, the applicant filed another hearing application to obtain payment of the temporary disability and permanent partial disability pursuant to the commission's interlocutory order. Specifically, her new application seeks temporary total disability from March 1 to March 21, 1995; temporary partial disability from April 21 to August [April?] 27, 1995; temporary total disability from April 27, 1995 to May 5, 1995; and temporary total disability from August 15, 1995 ongoing. The application also sought permanent partial disability at 12 percent.

The applicant attached a report from Daniel Lochman, M.D., dated August 12, 1998, to her new hearing application. His note refers to an injury in the summer of 1995 [sic] and subsequent surgery. He recommended another surgery, specifically a tibial tubercle realignment. The surgeon who performed the 1995 arthroscopy (John Cragg, M.D.) had been advocating this procedure to treat the work injury since 1995. See Exhibit A, Dr. Cragg's note for August 28, 1995. At any rate, in August 1998, Dr. Lochman rated a 12 percent permanent partial disability, unless the applicant went ahead with the tibial surgery.

On September 23, 1998, the respondent answered the new application with a general denial. Thereafter, on November 5, 1998, the Worker's Compensation Division of the Department of Workforce Development (the Division) issued a notice of a January 7, 1999 hearing before ALJ Lawrence.

Next, on November 6, 1998, the applicant saw Dr. Cragg, who had performed the 1995 arthroscopic surgery. The tibial tubercle realignment surgery mentioned by Dr. Lochman was scheduled at that time. Indeed, Dr. Cragg performed the surgery on November 18, 1998.

At some point before the hearing (the commission assumes at least 15 days before and probably about December 18, 1998 (1 )), the applicant filed the notes from Dr. Cragg with the Division. The notes included not only the treatment in 1995 but also detailed the November 18, 1998 surgery and follow-up on November 25, 1998.

Next, on December 23, 1998, the employer's attorney, Bradley Lundeen wrote to the applicant's attorney, David Erspamer, about the hearing scheduled for January 7, 1999. Mr. Lundeen indicated he would not pay the temporary disability for March 1 to 21, 1995, but would pay temporary total disability for about a week in September 1995. He also stated he believed it was premature to rate permanent partial disability, but indicated that the applicant was entitled to temporary total disability beginning with the November 18, 1998 surgery.

In a letter to ALJ Lawrence on the same day, Mr. Lundeen set out what he thought were the disputed issues at the upcoming hearing. He conceded the compensability of the knee injury. He also conceded some temporary disability for periods up to September 1995. He then indicated that while it had looked like the claim would be easily resolved by paying the 12 percent permanent partial disability, the matter was complicated by the November 18, 1998 surgery, from which the applicant had not yet recovered. Accordingly, he did not think permanent partial disability should be decided by ALJ Lawrence, and noted he could not schedule an independent medical examination on the issues of permanent partial disability and end of healing before the hearing. He concluded by stating that he thought resolution of the permanent partial disability issue would be premature. Significantly, Mr. Lundeen's letter to ALJ Lawrence neither concedes nor contests liability for the November 18, 1998 surgery and resulting temporary disability.

Mr. Lundeen provided Mr. Erspamer with a courtesy copy of his letter to ALJ Lawrence, but did not appear to provide ALJ Lawrence with a copy of his letter to Mr. Erspamer.

At the hearing, the ALJ identified the applicant's claim as for temporary total disability for various periods in 1995, temporary total disability beginning with the surgery on November 18, 1998 and ongoing, and medical expenses. Attorney Lundeen then stated, that while he conceded a knee injury, he did not concede that the knee injury made the November 18, 1998 surgery necessary. He then pointed out that the November 1998 surgery, and resulting disability, arose only after the application was filed and the hearing notice sent. Mr. Lundeen again stated he had not had a chance to get an independent medical examiner on the November 1998 surgery. He concluded by stating he thought that only the 1995 temporary total disability was at issue.

In response, the applicant's attorney, David Erspamer, pointed out that his application included Dr. Lochman's note mentioning possible surgery, and that he filed medical records prior to the hearing referring to the November 18, 1998 surgery, but Mr. Lundeen did no investigation and requested no medical records in response.

ALJ Lawrence considered the November 1998 surgery. He found it compensable, and ordered temporary total disability paid from the date of surgery to the date of the hearing (as well as about a week in 1995). He also ordered the medical expense from the surgery paid.

The respondent appeals. It wants the part of the order dealing with the temporary total disability and medical expense from the November 1998 surgery set aside and remanded, on the ground it had no chance to put on a defense. Both parties make similar arguments to those made to ALJ Lawrence and outlined above. In addition, Mr. Erspamer asserts that Mr. Lundeen admitted in his December 23, 1998 letter to Mr. Erspamer that the applicant was entitled to temporary disability beginning with the November 18, 1998 surgery. Mr. Lundeen asserts any representations made in that letter were in the context of a settlement offer, and are not binding.

The commission observes that both parties have strong arguments. On the one hand, it hardly seems fair to Mr. Lundeen and the respondent to require them in January 1999, to defend a November 1998 surgery which was performed (and apparently scheduled) only after the hearing notice went out. Indeed, the hearing application requested a 12 percent permanent partial disability, which of course would have ended any temporary total disability claim.

On the other hand, if Mr. Lundeen was aware of the November 1998 surgery before the hearing, yet did not contest the respondent's liability for the procedure in his December 23, 1998 letters to Mr. Erspamer and ALJ Lawrence. Instead, those letters read together could lead to the inference that Mr. Lundeen conceded liability for temporary disability and medical expenses from the November 1998 surgery, and that Mr. Lundeen was only concerned about getting an independent medical examination for healing plateau date and permanent partial disability rating following the November 1998 surgery.

However, the commission declines to construe Mr. Lundeen's letters together as a concession. If he had written to ALJ Lawrence what he wrote to Attorney Erspamer, a concession of liability for the consequences of the surgery might well have been made. However, the letter sent to ALJ Lawrence stops short of an actual concession, and Mr. Lundeen did not copy the Division with the letter he wrote to Mr. Erspamer. The commission prefers to err on the side of caution in this case, and so remands for a hearing on the conclusion that the respondent was not given notice that the November 18, 1998 surgery would be at issue. (2 )

cc: ATTORNEY DAVID M ERSPAMER
ERSPAMER LAW OFFICE

ATTORNEY BRADLEY C LUNDEEN
MUDGE PORTER LUNDEEN & SEQUIN SC

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

Footnotes:

(1)( Back ) That is the date identified in a letter from opposing counsel.

(2)( Back ) The commission remands for this procedural reason only, not because of the merits of any claim by the respondent that the November 1998 surgery was not necessary or work-related or because the commission concludes that the issue is fairly debatable.