P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 89023179

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed. On January 18, 1995, the commission issued an order affirming the findings of fact and conclusions of law of the ALJ. The employe appealed this case to circuit court. On December 21, 1995, Dane County Circuit Court Judge Nowakowski vacated the commission's January 18, 1995 order and remanded the record to the commission for further proceedings consistent with its decision. Judge Nowakowski stated that the commission's order failed to clarify the rights of the parties, by explaining whether its order (1) had the legal effect of an order for the employe to repay International; (2) allows International to collect the overpayment only from future benefits payable; (3) was simply a declaration with no immediate legal effect. Further, the court was troubled by the fact that the commission did not indicate by which statutory authority it was acting in hearing International's application. The court was left with no basis by which to determine the consequences of the commission's conclusion that there was an overpayment.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, and pursuant to the order of Dane County Circuit Court Branch 13 (December 21, 1995) the commission makes the following:


The employe worked for the employer. She was involved in a work-related motor vehicle accident on October 11, 1988, while performing service growing out of and incidental to her employment. Specifically, the employe's vehicle was rear-ended while she was on a work-related errand.

The employe saw Dr. Richard Hill on October 12, 1988. She stated that she was in an accident the previous day and complained of back pain. She returned to the doctor for a second visit on October 17. He noted she had tender paraspinous and gluteal muscles but the pain was subsiding. The employe failed to mention any right elbow complaint or injury at the time of these visits. The doctor made no mention of any bruise to the right upper extremity.

The employe has a long history of right elbow complaints. She fell off a stage and injured her right elbow in 1980. She suffered severe pain from epicondylitis in the right elbow in early 1988 and was treated extensively with pain medication and injections.

After the motor vehicle accident, the employe first complained of right elbow pain on November 1, 1988. She saw Dr. Frank Nichols on November 25, 1988. She complained of right elbow pain that had been present for several years. She stated it recently was getting progressively more severe. She did not say that her elbow was injured in the motor vehicle accident. She made no mention whatsoever of that accident. She also told a physical therapist in early December 1988 that she had had pain in the right extremity for one and a half years with no apparent reason for the onset.

The employe was eventually referred to Dr. Richard Glad. She told Dr. Glad that she developed the acute onset of right elbow pain about two weeks before Thanksgiving (in November 1988.) The employe said she was not aware of any significant injury although she had been in a car accident before Thanksgiving and bumped her elbow. Dr. Glad concluded that the etiology for the employe's right upper extremity pain was uncertain.

Dr. Glad performed surgery on March 24, 1989. He decompressed the median nerve and transplanted the ulnar nerve. The employe ultimately recovered from the surgery but was left with 10 percent permanent partial disability at the elbow as rated by Dr. Glad.

The insurance carrier received another opinion from Dr. Frederick Gaenslen. He noted that the employe had a long history of medial epicondylitis that persisted over many years before this motor vehicle accident. He stated that the accident may have "reawakened" her long-standing and recurrent condition. However, according to Dr. Gaenslen, the work-related accident did not aggravate or accelerate this condition beyond normal progression.

The insurance carrier paid for the employe's temporary disability before and after the elbow surgery. It also paid for the medical expenses for elbow treatment and compensation for 5 percent permanent partial disability at the elbow.

The employe eventually brought and settled a tort claim for damages against a third party (the other driver). She represented in that claim that her elbow injury did not rise from this motor vehicle accident but was a manifestation of a preexisting condition.

Dr. Hill stated in a report dated September 23, 1994, that employe's symptoms may have been aggravated by the automobile accident (emphasis added). However, he previously said in a letter dated May 9, 1991, that the employe's right elbow condition was probably not related to the accident (emphasis added).

Based on all the evidence, the employe failed to establish that her elbow condition arose from the work-related motor vehicle accident. The record certainly reflects a legitimate doubt. It is more likely that the employe's elbow problem which ultimately led to surgery was a manifestation of her preexisting condition.

The commission therefore finds that the employe was not entitled to the primary compensation she received for temporary and permanent disability in the total sum of $10,772.70. The commission has authority to hear and decide the claim raised in the insurer's application because resolution of the claim involves awarding or denying compensation under ch. 102. Stats. See secs. 102.17 (1), (2) and (3) and 102.18 Stats. The commission's order in this case denies compensation because it finds that the employe's elbow condition did not arise from her work-related motor vehicle accident. Stated another way, finding that the employe is not entitled to any worker's compensation benefits in the first instance is little different than finding that the employe was not entitled to those benefits that she did receive.

The commission does not have the statutory authority to order repayment of the amount that the insurer has overpaid. Instead, consistent with past practices, it issued an order which simply found that the amounts paid in excess of the commission's award are "overpaid." In similar situations in the past, insurers have taken final commission orders and commenced circuit court actions in order to obtain judgments against claimants, presumably under sec. 102.20, Stats.

The commission further finds that the medical expenses for elbow treatment (set forth in Exhibit B) were not reasonably necessary to cure or relieve the employe from the effects of this industrial injury. The insurance carrier is not liable for those expenses. However, the carrier paid those monies to various health care providers and its recourse is to proceed against those providers. The employe is not liable to the insurance carrier for the medical expenses.


The findings and order of the administrative law judge are clarified and as so clarified are affirmed. The employe has been overpaid primary compensation in the sum of Ten thousand seven hundred seventy-two dollars and seventy cents ($10,772.70).

Dated and mailed July 17, 1996
sandrma.wrr : 145 : 0  ND 5.43

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

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