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

CHARLES REINSBACH, Applicant

HUFCOR INC, Employer

WESTCHESTER FIRE INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1991076967

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed April 27, 2000
reinsbc.wsd : 101 : 3   ND § 8.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant hurt his hands at work in June 1991. The left hand bothered him more than the right. He received considerable treatment, including surgeries, for the left hand in 1991 and 1992.

In August 1991, the employer switched insurers from Westchester (who was on the risk before August 1991) to Home (who was on the risk from August 1991 to August 1994).

In 1993 and 1994, the applicant began developing more problems with his right hand. His treating doctor, James Siegert, M.D., opined that the applicant's work exposure upon returning to work in 1992-1993 caused the increased right hand problems. Home (who was on the risk in 1992-1993) procured an independent medical examiner (IME) report from Hani Matloub, M.D., dated May 13, 1995. In his 1995 report, Dr. Matloub opined that that the applicant had basilar joint arthritis in his right hand, which was aggravated by the surgery and limitations on the left hand.

The applicant, who is unrepresented, filed an application for hearing in October 1995, alleging that his right-hand treatment expenses were not being paid. He indicated that Westchester paid for the left hand problems in 1991-1992, but that both insurers denied liability for the right hand condition, and that as a result he could not get treatment.

The dispute from the 1995 application was discussed at a pre-hearing conference in 1996. Home agreed to pay for the right hand treatment. The applicant's 1995 hearing application, however, was not dismissed.

The applicant underwent additional treatment, including a right hand surgery in September 1999. Home paid some compensation for temporary disability, but stopped paying in December 1999, relying on a new IME report from Dr. Matloub dated December 3, 1999. Dr. Matloub opines that the 1992-1994 work exposure did not cause the need for the 1999 right hand surgery, and suggests the causal event was instead the initial 1991 injury.

Consequently, the department arranged another prehearing conference call in January 2000 to try to determine who would pay for the 1999 treatment and resulting disability. Copies of the pre-hearing notice were provided to Home and Westchester directly, as apparently there were no attorneys of record. Thereafter, the insurers arranged to have their attorneys included in the conference call (Kurt Anderson for Home and Robert Ochowicz for Westchester.)

However, Mr. Ochowicz was not available when the multi-party conference call was made to his office on January 25, 2000. He candidly admits his client Westchester had asked him to participate, and that he has no excuse for missing the call. In his absence, and based on Dr. Matloub's December 1999 IME report, ALJ Arnold ordered Westchester to pay temporary disability on a non-conceded basis under Wis. Stat. § 102.175(2).

Upon being reminded of the prehearing conference, Mr. Ochowicz contacted the ALJ but the prehearing conference had just ended. He asked ALJ Arnold to reconsider her prehearing order, but she declined. Westchester then petitioned for commission review. On appeal, Westchester offers a March 17, 2000 report from Dr. Siegert stating that the applicant needed the right hand surgery in 1999 because of work exposure between 1992 and 1994.

Under Wis. Stat. § 102.175(2), an ALJ may order provisional or non-conceded payment on a claim, even before a hearing, if the only issue is which insurer is liable. An ALJ has the discretion under Wis. Stat. § 102.175 to order payment by only one of the apparently-liable insurers if he or she chooses. Of course, if an ALJ later determines after a hearing that the other insurer is actually liable, the ALJ may order that insurer to reimburse the insurer who made the provisional payment.

In affirming the ALJ's decision, the commission notes that the applicant's application for hearing filed in October 1995 is still pending. The commission also notes that there is no medical evidence at this point to indicate that the applicant's right hand condition is not work-related. Dr. Matloub blames the initial 1991 work injury, and Dr. Siegert blames 1992-1994 work exposure. In other words, the ALJ was entitled to use of Wis. Stat. § 102.175(2) in some fashion.

On appeal, Westchester suggests the ALJ should have either delayed ordering payment under the statute or applied the statute to order Home to make the provisional payments. See, particularly, page 3 of Ochowicz's letter and page 4 of Westchester's petition. The commission understands that Mr. Ochowicz believes Home is using Dr. Matloub's 1999 opinion to justify denying payment of a treatment expense that he feels Home had agreed at the 1996 prehearing conference to pay. The commission also appreciates that Mr. Ochowicz feels Dr. Matloub's 1999 report is inconsistent with the facts.

However, ALJ Arnold's prehearing order is perfectly proper given the record before her. The only expert opinion written after the 1999 surgery which ALJ Arnold had before her at the pre-hearing was Dr. Matloub's December 1999 IME. It was hardly unreasonable for her to base her decision on that report. And, of course, ALJ Arnold's order is only conditional; she orders Westchester to pay on a nonconceded basis pending further hearing on the issue.

It appears from ALJ Arnold's March 10, 2000 memo to the file (copied to the applicant and the attorneys) that she expects further hearing under 1995 application to occur soon. Otherwise, Westchester may apply for one. However, any adjustment of the respective liabilities of the insurers should wait for a hearing.

cc: ATTORNEY KURT R ANDERSON
NELSON DRIES CONNELL & KRAMER SC

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC

HOME INSURANCE COMPANY
C/O RISK ENTERPRISE MANAGEMENT

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