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


JANET PITZER, Applicant

RANDALLS DISCOUNT FOODS, Employer

VENTURE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-062650


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born in 1940. She had two jobs at the time of her injury: a full-time job working at a dental lab and a part-time job working for the named employer in this case, a deli. The applicant earned $340 per week in the full-time dental lab job. The parties stipulated to a $5.25 per hour wage for about 21 hours per week in the deli job.

The applicant sustained a conceded work injury at her part-time deli job with the employer on Saturday, November 9, 1996, she slipped on some water. She self- treated with ice, but was unable to work at her full-time job on Monday, November 11, 1996, because of the pain in her leg. On Tuesday, November 12, she went to the emergency room in Eau Claire. X-rays revealed a displaced oblique fracture of the proximal fibula. The emergency room doctor diagnosed a fracture and sprain, and referred her to a local clinic.

Accordingly, the applicant went to the Ihle Orthopedic Clinic that same day where the applicant saw Dr. Ihle. He gave her a release until December 15 from the deli job, (1)   though the doctor opined she could work at the sedentary job at the dental lab immediately. He recommended she not bear weight on the left leg.

Dr. Ihle also recommended installation of an ankle brace. The brace was installed by a woman who worked at his clinic. She evidently told the applicant she did not know how to put it on. (2)

That evening (November 12), the applicant experienced continuing pain. She spoke with her son by telephone about her situation (she had continuing ankle pain and was living alone). The applicant's son then took the applicant to his home in Faribault, Minnesota, about 110 miles from the applicant's house in Eau Claire, Wisconsin.

During the evening of November 16, the applicant experienced increasing pain and swelling in her ankle, and her son took her to an emergency room at District One Hospital in Faribault, Minnesota. There, the ankle brace was removed and replaced with a long-leg splint. The emergency room doctor, Craig L. Belcourt, M.D., recommended conservative treatment and follow-up with a physician to obtain a work release. The $627.90 bill for this treatment from District One hospital of Faribault MN, is the last page of exhibit D .

For follow-up, the applicant treated at Orthopedic & Fracture Clinic in Faribault on November 25, 1996. There she saw Robert Shepley, M.D. His note mentions a referral from the District One ER room, and from the Eau Claire ER room, though the applicant evidently knew nothing about a referral. At any rate, Dr. Shepley recommended additional follow-up in three weeks (either with Shepley himself or an Eau Claire orthopedic surgeon), and released her to sitting work with the caveat she keep her ankle raised. The $422.86 bill for this treatment is the first in exhibit D.

The applicant returned to Wisconsin, and went back to the full-time job at the dental lab on November 26, 1996. Understandably, she was not inclined to return for treatment to the Ihle Clinic, as she believed the initial brace was placed incorrectly.

She began treating with Dr. Drawbert at the Chippewa Valley Orthopedic Clinic. He ordered rehabilitation, and released her to work (apparently at the deli) at the end of January 1997. He did not see her again until October 1997, when he released her to return for treatment as needed.

2. Issues.

By the time of hearing, the respondent conceded jurisdictional facts, a compensable injury causing permanent partial disability at 2 percent compared to permanent total disability, and 21 hours of work per week at the employer's deli at $5.25 per hour. The respondent has also paid the bills for the Wisconsin treatment (the Eau Claire emergency room, Ihle Clinic, and Drawbert). At issue here is the amount of temporary disability compensation, and the respondent's liability for the Minnesota medical expenses.

Specifically, the respondent denies liability for the treatment expenses incurred in Minnesota under Wis. Stat. § 102.42(2)(a) which limits a respondent's liability for treatment incurred out-of-state without prior approval. The respondent also denies liability for any temporary disability, because the applicant was released to her lab job on November 12, 1996 by Dr. Ihle.

The ALJ ordered payment of the Minnesota medical expense, concluding that Dr. Drawbert gave her an implied, retroactive referral. She also awarded temporary total disability for the entire period from November 12, 1996 to January 31, 1997, at $84 dollars per week. That figure is two-thirds of the average weekly wages rate from the part-time deli employment of $126 (derived from the "unexpanded" minimum of 24 hours per week under Wis. Stat. § 102.11(1)(f)1 times the stipulated hourly rate of $5.25.) The respondent appeals.

3. Discussion.

The commission first turns to the question of temporary disability. The applicant had both a part-time and full-time job when injured. The specific point at issue is what amount of temporary disability should be paid based on an injury in the part-time job which disabled her from both jobs from November 12 to November 26, 1996, and disabled her from the part-time job only from November 26, 1996 to January 31, 1997.

The commission first concludes that while Dr. Ihle released her to return to the dental lab work shortly after the injury on November 12, the applicant was not bound by that release. The release might have required a return to work had the emergency treatment at the Ihle Clinic been successful. However, despite the treatment at the Ihle Clinic, the applicant's pain worsened, requiring her to seek additional treatment for her broken fibula. Dr. Shepley's notes and the note of the physician who treated the applicant at the District One Hospital ER (Dr. Belcourt) establish that the applicant could not return even to sedentary duty until November 26, 1996. Thus, the applicant was temporarily and totally disabled until then.

What rate should be paid for temporary total disability? The parties stipulated that the applicant was paid $5.25 per hour at the deli. The ALJ concluded her average weekly wage was $126, based on the 24-hour week minimum under Wis. Stat. § 102.11(1)(f)1. Two-thirds of that amount is $84, the temporary total disability rate used by the ALJ.

However, the commission concludes that the wages from the part-time deli employment with the employer should have been expanded to a full-time wage, and the temporary total disability rate based on the expanded wage. In order to qualify for wage expansion under Wis. Stat. § 102.11, the injured worker must: (a) not be part of a regularly-scheduled class of part-time employes, and (b) be either employed at a second job or not restricting herself to part-time work. See Charleen M. Marnne v. Adams Columbia Electric Coop, WC claim no. 95009936 (March 12, 1998); Neal & Danas, Worker's Compensation Handbook, § 4.8 et seq. (4th Ed. 1997).

Here, there is no evidence the applicant was part of a regularly-scheduled class of employes with the deli. She did not restrict herself to part-time employment, but in fact was working in excess of full time, when she was injured. Indeed, this case is an excellent example of the policy behind wage expansion as it demonstrates the unfairness of paying temporary disability based on a relatively low part-time wage for an injury in a part-time job that prevented the worker returning to another full- time job as well.

In short, the commission concludes that the applicant's wage in the part-time deli work with the employer should have been expanded to full-time, which is customarily assumed to be a 40-hour week. Thus, her average weekly wage is $210 (40 times $5.25), and her temporary total disability rate based on that is $140 per week. Accordingly, during the period the applicant was actually unable to work at all, November 12 through November 25, 1996, she is entitled to temporary total disability at $140 per week.

What about her temporary disability from November 26, 1996 to January 31, 1997 when she was able to work at the dental lab, but not the deli job with the named employer? Under Wis. Stat. § 102.43(2), a worker who returns to work but is still partially disabled on a temporary basis (in the sense she is still healing and not able to earn her full, pre-injury wage) receives temporary partial disability based on her temporary total disability rate in the proportion her actual wage loss during the temporary disability bears to the pre-injury wages. To simplify, if a worker temporarily returns to work at two-thirds of his former hours and thus loses one-third his former wage, he ordinarily gets temporary partial disability at one-third of his temporary total disability rate.

What happens when the injured worker returns to work other than the job she was injured in? The statutes recognize three possibilities:

1. If it is work that the worker obtained after the injury, the earnings from that work are considered in the proportional calculation of temporary partial disability benefits described above. Wis. Stat. § 102.43(6)(c).

2. If it is work in another job that the worker held when injured, and the wage from the job causing injury is not expanded as described above, the worker gets his full temporary total disability rate calculated on the unexpanded wage. Wis. Stat. § 102.43(6)(b).

3. If the applicant returns to another job held when injured, but the average weekly wage from the job causing injury is expanded for the purpose of setting temporary total disability rate, the wages from the other job are considered in the proportional calculation of temporary partial disability benefits based on "actual wage loss". Wis. Stat. § 102.43(6)(b).

See also the department's interpretative footnote to Wis. Stat. § 102.43(6)(b), DWD Worker's Compensation Act of Wisconsin with amendments to January 1, 1998, publication WKC-1-R. 2/99), footnote 143.

In this case, the applicant here fits in the third situation from the preceding paragraph. That is, her wage from the deli job where she was hurt should be expanded to full time, her temporary total disability rate based on that expanded wage, and her earnings from the dental lab work considered in calculating a temporary partial disability rate when she returned to it.

The applicant's wage at the dental lab was $340 per week. Her actual wages at the employer's deli at the time of injury were $110.25 per week ($5.25 times 21). Thus, her actual pre-injury wages were $450.25 per week ($110.25 plus $340). Upon returning to the dental lab job after her injury she earned $340. The proportion of actual wage loss is 0.2448639644642 ($110.25/$450.25). Applied to her temporary total disability rate of $140, her temporary partial disability rate for the period after she returned to the dental lab, but before she could return to her job at the employer's deli, is $34.28 per week.

The next issue is the compensability of the medical expense the applicant incurred in Minnesota. Because this injury occurred before January 1, 1998, the new (3)    version of Wis. Stat. § 102.42(2)(a) which eliminates out-of-state referrals does not apply. Instead, this case is governed by 1995-96 Wis. Stat. § 102.43(2)(a) which provides:

"102.42(2)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employe his or her choice of any physician, chiropractor, psychologist, dentist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employe may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employe shall be given his or her choice of attending practitioner at the earliest opportunity. The employe has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner."

Prior to the amendment of Wis. Stat. § 102.42(2)(a), a referral from a Wisconsin doctor to an out-of-state doctor made the out-of-state treatment compensable because treatment on referral does not constitute a "choice." UFE v. LIRC, 201 Wis. 2d 274 (1996). In this case, however, the ALJ properly found that there was no express referral in advance of the treatment. Instead, she found that Dr. Drawbert's November 1997 statement that the applicant needed treatment from the November 9, 1996 date of injury to the October 20, 1997 release from treatment was an implied, retroactive referral to the Minnesota practitioners back in November 1996.

However, the commission cannot agree, and does not read 1995-96 Wis. Stat. § 102.42(2)(a) to recognize an implied, retroactive referral on the basis suggested by the ALJ. However, that does not mean all the Minnesota treatment expense is not compensable. The applicant's November 16, 1996 Minnesota ER visit was emergency treatment that did not constitute a "choice" of an out-of-state doctor under Wis. Stat. § 102.42(2)(a). Under UFE, the respondent is therefore liable for that bill.

The commission has previously held that emergency treatment sought by the injured worker himself fits the "emergency" clause of Wis. Stat. § 102.42(2)(a). Pastrich v. Fitness Works, WC claim no. 96042324 (LIRC, April 9, 1998). In Pastrich, of course, the applicant sought the emergency treatment on the day the injury happened. However, the commission sees no distinction on that basis with respect to the bill for the Minnesota emergency room on November 16, 1996 in this case. The applicant was only in Minnesota because of the work injury and the prior unsuccessful treatment of her bone fracture, causing her to be disabled and needing the assistance of her son. Her leg pain was increasing while she was in Minnesota, and she did seek treatment at an emergency room. It was not practical for her to return to Wisconsin for treatment, nor reasonable to expect her to delay emergency treatment while trying to get prior approval from the insurer. The applicant did have a broken bone after all.

However, the follow-up treatment with Dr. Shepley in Minnesota nine days later poses a different problem. By this time, the emergency had passed; this was only a follow-up visit. The applicant could have arranged either to have the treatment approved by the insurer, or could have gotten Dr. Ihle or some Wisconsin practitioner to refer her to a Minnesota doctor. The respondent is not liable for the expense of treatment with Dr. Shepley on November 25, 1996.

The commission acknowledges that Dr. Belcourt, who treated the applicant in the District One emergency room on November 16, 1996, recommended follow-up with a physician in a week. However, Dr. Belcourt did not refer her to any doctor by name, much less any Minnesota doctor. Nor can the commission conclude that a referral from one out-of-state doctor to another out-of-state doctor would make the second doctor's expense compensable anyway, given that the only reason the first doctor's expense was compensable was a then-passed emergency.

4. Award.

The applicant is therefore entitled to temporary total disability from November 12 through November 25, 1996, a period of 2 weeks, at the weekly rate of $140 per week, or $280. She is further entitled to temporary partial disability for the period from November 26, 1996 to January 31, 1997, a period of 9 weeks and 3 days at the weekly rate of $34.28 per week, totaling $325.66. In sum, the applicant is entitled to $605.66 in temporary disability.

The applicant approved an attorney fee under Wis. Stat. § 102.26, which is set at 20 percent on the additional amounts awarded hereunder. The fee is thus $121.13; that amount, plus costs of $67.87 shall be deducted from the applicant's award and paid within thirty days. The remainder, $416.66, shall be paid the applicant within 30 days.

The applicant incurred reasonable and necessary treatment to cure and relieve the effects of the work injury from District One Hospital in Faribault, Minnesota, in the amount of $627.90 all of which is unpaid. The respondent is liable for that bill. However, the respondent is not liable for the $422.86 bill for treatment at Orthopaedic & Fracture, as that was for treatment rendered by a doctor not licensed in this state and chosen by the applicant without the agreement of the respondent.

An interlocutory order is appropriate in this matter to reserve the applicant's right to make any and all additional claims as a result of this injury, consistent with this decision.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Janet E. Pitzer, Four hundred sixteen dollars and sixty-six cents ($416.66) in disability compensation.

2. To the applicant's attorney, Manlio G. Parroni, the sum of One hundred twenty-one dollars and thirteen cents ($121.13) in fees and Sixty-seven dollars and eighty-seven cents ($67.87) in costs.

3. To District One Hospital, Six hundred twenty-seven dollars and ninety cents ($627.90) in medical treatment expense.

Jurisdiction is reserved to issue further orders and awards as warranted, consistent with this decision.

Dated and mailed November 4, 1999
ptizerj.wrr : 101 : 6 ND § 5.4  § 5.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The respondent first conceded five weeks of permanent partial disability at the hearing. The applicant's attorney is accordingly entitled to a twenty percent fee on the conceded amount. If the compensation or fee for that concession have not been made to date, the insurer is directed to make the appropriate adjustments to the payments ordered hereunder.

The commission did not confer with the presiding ALJ. Its modification of the ALJ's order was based solely on a differing legal analysis, not on witness credibility or demeanor.

cc: ATTORNEY MANLIO G PARRONI
PARRONI SIEDOW & JACKSON SC

ATTORNEY THOMAS J NIEMIEC
BASSFORD LOCKHART TRUESDELL & BRIGGS P A


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Footnotes:

(1)( Back ) The file contains another work release to November 27 from Ihle; this is dated November 21. The applicant denies treating with Dr. Ihle then (she was in Minnesota), and his office records themselves show no treatment.

(2)( Back ) This testimony, though hearsay, was elicited on cross-examination.

(3)( Back ) The changes in the "new" version of Wis. Stat. § 102.42(2)(a) are due to "sunset" on January 1, 2000.