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

COUNTY OF MILWAUKEE, Applicant

COUNTY OF MILWAUKEE, Insurer
DEPARTMENT OF RISK MANAGEMENT

MAVIS SCOTT, Employee

WORKER'S COMPENSATION DECISION
Claim No. 1998014521

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, except that it makes the following modifications:

1. In the second sentence of the sixth (last) paragraph of the ALJ's decision, delete the words "which should be repaid by the employee".

2. Delete text of the ALJ's Order and substitute:

"The employer overpaid Mavis Scott Eight thousand two hundred twenty-five dollars and sixty-nine cents ($8,225.69) in temporary total disability compensation, and overpaid Froedtert Memorial Hospital Nine thousand four hundred eighty-one dollars and thirty-nine cents ($9,481.39) in medical treatment expense."

ORDER

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

Dated and mailed September 27, 2000
scottma.wmd : 101 : 3  ND § 5.43

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Procedural posture and facts.

Mavis Scott was a nursing assistant who worked in the Milwaukee County Mental Health Hospital. On February 24, 1998, she hurt her middle finger (1) while trying to move a patient out of a chair. Following the injury, she treated for problems with both the distal interphalangeal joint (DIP joint) and the proximal interphalangeal joint (PIP joint). She eventually underwent surgery to the PIP joint. It is the treatment of the PIP joint that is in dispute.

The self-insured employer concedes a work injury on March 24, 1998 causing some temporary disability and medical expense to April 8, 1998, and has paid the disability and medical expense for that injury. However, the employer also paid temporary disability and medical expense for treatment from May 19, 1998 through November 30, 1998, which it now contends was paid by mistake of fact. Specifically, the employer believed it overpaid compensation for treatment for the PIP joint that did not arise out of employment, and filed the application seeking reimbursement of the disputed amount. The injured worker filed an answer, which included a counterclaim for more benefits. (2)

As described in more detail below, the ALJ found for the employer. Ms. Scott appeals. The issue now before the commission is the extent of disability from the injury: did Ms. Scott plateau from the work injury without residual disability in April 1998, as the employer contends; or did she not plateau until at least November 1998, as Ms. Scott contends? The record contains expert medical opinion on that point.

The treating doctor is James R. Sanger, M.D. Initially, on April 8, 1998, Dr. Sanger reported to the employer that Ms. Scott experienced a "jamming" injury to her right index finger, which appeared to re-injure a pre-existing problem at the PIP joint, and also cause a new mallet deformity or rupture of the extensor tendon at the DIP joint. Exhibit 2, Sanger letter to Mazur dated April 18, 1998.

Next, on June 3, 1998, Dr. Sanger reported:

"To clarify her medical situation, she has two separate problems with that finger. The first is an injury to the [DIP joint] which is work-related. She has a pre-existing arthritic condition on middle finger and this was aggravated, apparently by the work injury. This was the joint that was injected and the pain has been a problem that emanates from this particular joint."

Exhibit 2, Sanger letter to Mazur dated June 3, 1998.

Later, in his July 14, 1998, treatment note, Dr. Sanger reported:

"There is apparently some problem with regard to the status of why the PIP joint was replaced. The fundamental process here is arthritic. Although she notes worsening after her injury to the distal joint, this is not responsible for the excessive acceleration or the primary PIP joint pathology."

Dr. Sanger attempted to clarify his position again on October 15, 1998. He wrote:

"It is clear from our records that she has two separate problems. The first is the injury to the [DIP joint] which as you have pointed out is a tendon problem. Secondly, she had pre-existing arthritis in the [PIP joint] This was of relatively long-standing as gauged by the changes on the x-ray. Following the injury to her finger, this became painful during therapy. Eventually required joint replacement.

"I clearly stated that the primary problem in the [PIP joint], i.e., arthritis, is not work-related. It appears historically that she did aggravate the [PIP] joint with the injury and the therapy in an attempt to decrease the stiffness.

"If you look at the records, as early as February 27, 1998, there is a statement that the [PIP] joint problems are chronic and suggestive of post- traumatic arthritis. During her therapy, however, and I would refer you to the April 21, 1998 note, she began to have increasing pain in both the [DIP and PIP] joints. On April 24, 1998, she reported re-injuring the finger and that it was more painful..

"Therefore, I think it is pretty clear from our records that she had pre- existing arthritis. This was aggravated. I cannot tell you to what degree this accelerated her degenerative changes. It is most likely that at some point and time, even if she had not injured the finger, that she might have needed an arthroscopy."

Exhibit 2, October 15, 1998 letter from Sanger to Mazur.

Next, on February 2, 1999, Dr. Sanger gave a medical report on industrial injury on form WC16. Here, after describing the work injury, he gave a diagnosis of "right middle finger extensor tendon avulsion, DIP joint." He went on to rate permanent partial disability only for the DIP joint loss of motion, for which he recorded a twenty degree loss of motion on the workers compensation division form used for finger injuries. He explained that he did not rate permanent disability for the PIP joint as that surgery was secondary to the pre-existing arthritis.

Finally, on July 23, 1999, Dr. Sanger wrote a letter to Ms. Scott's attorney again addressing the issue. This note goes through the treatment history. The doctor then explains that he did not think it was fair of the independent medical examiner retained by the employer to find that Ms. Scott was ready to return in April 1998 because improvement was noted then. Indeed, Dr. Sanger noted that in May 1998, the treatment notes document significant DIP pain. Referring to his February 1999 report on form WC-16, Dr. Sanger explained:

"We attribute the disability to the [DIP joint] only because of the pre-existing arthritis. . She clearly did aggravate [the PIP joint] some with the injury but in the long run I felt that because pre-existing arthritis was present that she might require joint replacement anyway. For that reason, in the final award, I did not authorize disability for the PIP joint."

Exhibit 2, July 23, 1999 letter from Sanger to Wicht.

The independent medical examiner retained by the employer is John J. Siegert, M.D. He opined that Ms. Scott's treatment was reasonable, and that Ms. Scott did have limited motion in her finger following the PIP surgery. Noting, however, the absence of PIP complaints in the initial treatment notes, he opined Ms. Scott sustained only a mild sprain-type injury to the PIP joint, which did not have any major effect on the severe pre-existing arthritis. He concluded that the February 1998 injury did not aggravate, accelerate or precipitate Ms. Scott's pre-existing PIP joint problem beyond its normal progression, and that her current symptoms are entirely related to the pre-existing degenerative arthritis and the surgery to treat it.

Dr. Siegert did note a limitation on the right DIP joint (0-48 degrees) compared to the left (0-62 degrees), which corresponds to the 20 degree loss noted by Dr. Sanger. However, Dr. Siegert opines that the DIP joint motion loss was caused by the PIP joint surgery to treat the underlying arthritis, not by the work injury.

2. Discussion.

The ALJ concluded that all of the treatment after April 8, 1998 was for the PIP joint arthritis only (and possibly a non-work reinjury of April 24, 1998), and was not due to any effect of the work injury. He concluded therefore that all of the medical bills, injury pay, and temporary disability paid after that date were paid in error. He also concluded, implicitly, that Ms. Scott reached a healing plateau with no permanent disability at the DIP joint from the work injury. He ordered Ms. Scott to repay the temporary disability that had been overpaid. On appeal, Ms. Scott asserts that the expense of the PIP joint surgery should be paid, and the associated disability compensated.

However, the ALJ correctly concluded that Ms. Scott is not entitled to medical expense or disability compensation after April 8, 1998. Indeed, even treating doctor Sanger indicates that the PIP joint surgery was not made necessary by the work injury. If he is unwilling to attribute the permanent disability following the surgery to the work injury, it raises considerable doubt as to how the temporary disability and treatment expense for that condition are related to the work injury. Further, several of Dr. Sanger's treatment notes and letters described dissociate the PIP treatment and disability from the work injury. In his final letter of July 22, 1999, Dr. Sanger noted that the injury aggravated the pre-existing joint "some"- an opinion which falls short establishing an injury by pericipitation, aggravation, and accleration of a pre-existing degenerative condition beyond normal progression. (3) The commission thus is left with considerable doubt about the relationship between the work injury and the disability and medical expense after April 8, 1998.

However, the commission has previously held that it has no authority to affirmatively order an injured worker to repay an insurer for amounts overpaid. See Gifford v. Gifford Enterprises, WC claim no. 1987046225 (June 30, 2000). While ALJs and LIRC are to determine the "rights of the parties" and can make "awards" under Wis. Stat. § 102.18(1)(b), and while that term is not specifically limited to awards to injured workers, the case law suggests that the authority of ALJs and the commission to account for overpayments is limited to providing a credit against additional amounts awarded. McCune v. Industrial Commission, 260 Wis. 499, 502 (1952).

One may also infer the lack of authority to order an injured worker to repay overpaid compensation from Wis. Stat. § 102.18(1)(bw). That statutory section states that if an insurer overpays compensation to an injured worker and another insurer is liable, the department may order the other insurer to reimburse insurer that made the excess payment. However, conspicuously absent from that section is any authority to order the injured worker to repay overpaid benefits. Indeed, two noted commentators on Wisconsin workers compensation law flatly state that DWD has no authority to order an employee to reimburse a carrier for an overpayment. Neal & Danas, Workers Compensation Handbook, § 5.43 (4th ed., 1997). Thus, the commission has amended the ALJ's order to eliminate the affirmative requirement that Ms. Scott repay the overpaid disability compensation to the employer.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY MARK A GRADY
MILWAUKEE COUNTY COURTHOUSE RM 303

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Footnotes:

(1)( Back ) The third digit (which counts the thumb.)

(2)( Back ) In this case, then, the employer (the City of Milwaukee) is the "applicant" and the injured worker (Mavis Scott) is the "respondent."

(3)( Back ) Lewellyn v. ILHR Department, 38 Wis. 2d 43, 58-59 (1968).