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

KRISTINE COLLA, Applicant

COUNTY MILWAUKEE SHERIFF, Employer

COUNTY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93044857

The administrative law judge issued his findings of fact and interlocutory order in this case on January 12, 1995, following a hearing on October 31, 1994. The applicant submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the applicant and the self-insured employer submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $448, December 3, 1992 injury to the applicant's left eye. The employer conceded and paid some medical expenses, although these are not reflected on the applicant's form WC-3, Exhibit A.

The issues are nature and extent of disability, specifically permanent disability. Liability for medical expenses beyond those conceded are also at issue.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties, and substitutes for the administrative law judge's Findings of Fact the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant is a corrections officer employed by the Milwaukee County Sheriff's office. She suffered a conceded work injury on December 3, 1992. The injury occurred when an inmate threw water from a toilet at her, some of which struck her eye.

The employer admits the applicant suffered conjunctivitis, either chemical or bacterial, from the incident. However, the employer contends the conjunctivitis was only temporary. The applicant claims she suffered permanent vision loss from the work injury as well. Also at issue are medical treatment expenses.

On December 4, 1992, the day following the work incident, the applicant treated at the Milwaukee County Medical Complex. She was also seen in follow-up on December 7 and 23. In addition to an receiving an HIV antibody screening, the applicant's eyes were examined and she was given a salve. As a result, she incurred $151.10 in treatment expense. Of that amount, $14.64 was paid by WPS (a non-industrial insurer) and some other amount may have been paid by the self-insured employer.

On December 11, 1992, the applicant went to see her own eye doctor, Edward Waldeck, M.D. Dr. Waldeck noted the applicant's left eye was sore and red, and that an area of the conjunctiva of the left eye was sore to the touch and showed dilated blood vessels. Dr. Waldeck diagnosed chemical conjunctivitis of the left eye, and recommended she continue using the salve.

During the December 11 examination, Dr. Waldeck also noted the applicant complained of blurring in the left eye. He stated that her vision in that eye was 20/60, as compared with a previous visual acuity of 20/25 to 20/30 last determined in April, 1988. These were ratings for her vision as corrected.

On December 22, 1992, the applicant returned to Dr. Waldeck. By this time, the inflammation in her eye had greatly subsided. However, she continued to have vision problems, so Dr. Waldeck referred her to a retinologist, Thomas Burton, M.D.

Dr. Burton examined the applicant on December 23, 1992. His report indicates that the applicant's corrected vision after the December 1992 incident was "within one line of the measurements taken between 1977 and 1990." He also opined that the applicant's reduced visual function was caused by a preexisting "macular hole caused by sun-gazing retinopathy" and that "[i]t is impossible for the [December 1992] injury described, disgusting though it may have been, to have caused any change in visual function." Dr. Burton's charges, billed through Medical College of Wisconsin, came to $234, of which WPS has paid $124.96.

The applicant continued to complain of vision problems, and Dr. Waldeck referred her to Frederick Reeser, M.D. Dr. Reeser ordered extensive testing, including an electrophysiology, a CT scan and a fluoroscein angiogram. He, too, thought the macular hole was the source of her decreased vision and opined the vision loss was not caused by the work incident of December 3, 1992. Dr. Reeser's charges came to $870, of which WPS has paid $369.90.

The applicant returned to Dr. Waldeck on March 9 for testing and April 20 for an office visit, according to bills submitted by the applicant. The file also contains several letters from him, concerning the applicant's condition.

In his March 11 note, Dr. Waldeck stated that the applicant's left eye had not returned to its pre-injury visual acuity. He also noted that although she had a marked disturbance in her left eye, it was nothing of a specific neurologic type. He admitted "it is difficult to explain . . . why [the applicant] has such decreased visual acuity from this type of injury." He went on to state "[i]t is hard to imagine that a topical chemical could cause this type of visual disturbance but I suppose it is possible to absorb over a period of time."

In a July 19, 1993 note attached to his practitioner's report, Dr. Waldeck stated:

"The diagnosis now is post traumatic episcleritis with decreased visual acuity, left eye. Idealogy [sic] unknown basically. It is certainly difficult to state what is causing the decreased vision in the patient's left eye. It is thought in the past that perhaps the lesion in the left eye rather than being a hole is a solar retinopathy and whether this has gotten worse or not is certainly unknown but both retinal consultants do not feel that the look of the central retinal defect or hole or retinopathy is solely the answer to the decreased vision in that eye.

"The only other variable is the injury some sort of chemical being thrown into her eye with a result of episcleritis which was certainly proven and therefore one might presume that this is the cause of the decreased vision in that eye, but it is certainly not a proven fact."

Finally, in a note dated August 3, 1993, Dr. Waldeck stated it was probable that the work injury partially caused the applicant's disability. He rated permanent loss of visual function at 25 percent, based a pre-injury left eye vision of 20/25 or 20/30 decreasing to 20/60 or 20/70. He also stated that "[s]ince inasmuch as I do not know the real cause of this problem I am certainly unable to render a prognosis." Dr. Waldeck's charges come to $104, of which $93.60 was paid by WPS, and the remaining $10.40 was paid by the applicant.

After reading the various medical reports, the commission is left with the strong sense that Dr. Waldeck does not know what caused the decrease in vision, and only speculates how the work incident might have caused permanent vision loss. On the other hand, Drs. Burton and Reeser, to whom Waldeck referred the applicant, definitely state the work incident could not have caused the loss of vision. On this record, the commission finds the opinions of Drs. Burton and Waldeck more credible. Because the commission is left with legitimate doubt, if not more than legitimate doubt, as to the issue of whether the applicant suffered permanent vision loss arising from her employment, it must dismiss her claim for permanent partial disability.

The remaining question is the payment of the medical expenses. An employer is liable for not only the consequences of an injury but also its treatment, even for treatment that is later determined to have been unnecessary, assuming the applicant underwent the treatment in good faith. Spencer v. ILHR Department, 55 Wis. 2d 525, 532 (1973); Jenkins v. Sabourin, 104 Wis. 2d 309 (1981). On the other hand, if treatment is rendered for a condition other than the work-related injury, the Spencer rule might not apply. City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App., 1982).

In the City of Wauwatosa, the insurer's medical expert opined that a surgery was not work-related, but was for a preexisting congenital condition that was discovered when the applicant sought treatment after the work injury. The presiding administrative law judge in the City of Wauwatosa accepted this opinion and found that surgery was for a congenital condition that was unrelated to work. The commission, without conducting a credibility conference, modified the ALJ's decision to find the surgery was work-related. The circuit court found that the commission did not need to confer since the ALJ erred as a matter of law because the applicant sought treatment in good faith under Spencer. However, the court of appeals held instead that if the treatment was for a congenital condition unrelated to work as the ALJ found, Spencer would not apply. Since the commission's reversal depending on reaching a different finding of fact, rather than conclusion of law, the court of appeals remanded for a credibility conference.

In this case, the commission orders payment of all the claimed medical expenses, except an unitemized bill from Trinity Hospital, as reasonable and necessary to cure and relieve the effects of the work injury. Clearly, the treatment rendered immediately after the incident by the Milwaukee County Medical Center should paid. The employer concedes both the conjunctivitis for which she was treated for by the Milwaukee County Medical Center, and the toilet water incident that presumably led to the HIV antibody screen.

In addition, the expenses associated with the examinations of Drs. Waldeck, Reeser and Burton should be paid. The applicant was still suffering from conjunctivitis when she first saw Waldeck, and so that treatment, at least initially, was within her second choice of practitioner under sec. 102.43, Stats. As Dr. Waldeck referred the applicant to Drs. Burton and Reeser, they would fall within the "second choice" as well.

The closer question is whether these doctors treated a condition unrelated to the work injury, making the treatment not compensable under City of Wauwatosa. However, the examinations by Drs. Waldeck, Burton and Reeser in this case were to diagnose the possible effects of the work injury rather than to treat an unrelated condition. As the respondent states in its brief: "the claimed medical expenses were related to Drs. Burton and Reeser's attempts to evaluate the vision loss and its cause." Respondent's brief dated June 2, 1995, page 5.

In addition, the self-insured employer itself relies on the opinions of Drs. Burton and Reeser. Indeed, at the hearing, the employer entered the reports as exhibits to counter Dr. Waldeck's opinion of partial work causation. On that ground alone it would not be fair to deny their payment.

This leaves the Trinity Hospital bill of $1,282 for services rendered on April 21, 1993. The commission believes these may be related to a CT or MRI test ordered for the purpose of diagnosis by one of the doctors giving an expert opinion in this case. But since the bill is not itemized, the commission can only speculate on the reason for the bill. If the applicant wishes to have this bill paid, she should get an itemization for the services provided and submit it to the respondent for payment. The commission reserves judgment on this issue, if the parties cannot agree on payment of the Trinity Hospital bill.

The administrative law judge found that the self-insured employer paid for at least some of the initial treatment rendered to the applicant. To the extent that the self-insured employer has already paid for treatment expenses listed by the applicant in Exhibit A, it is entitled to a credit.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed in part and reversed in part. The application, except for the portion dealing with reimbursement of medical expenses, is dismissed.

Within 30 days from the date of the decision, the self-insured employer shall pay all of the following:

(1) To the applicant, Kristine Colla, the sum of Ten dollars and sixty cents ($10.60) for medical treatment rendered by Edward W. Waldeck, M.D., of Ophthalmology Associates, S.C.

(2) To the Medical College of Wisconsin, the sum of One hundred nine dollars and four cents ($109.04) for medical expense.

(3) To the Milwaukee County Medical Center (MCMC), the sum of One hundred thirty-six dollars and forty-six cents ($136.46) for medical expense.

(4) To Frederick H. Reeser, M.D., of Retina & Vitreous Consultants of Wisconsin, Ltd., the sum of Five hundred dollars and ten cents ($500.10) for medical expense.

(5) To WPS Health Insurance, the sum of Six hundred three dollars and ten cents ($603.10) for reimbursement of medical expenses paid to the above providers.

Jurisdiction is retained to issue such further orders as are warranted, consistent with this decision.

Dated and mailed July 31, 1995
ND § 5.50

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not confer about witness credibility and demeanor with the administrative law judge who presided at the hearing. The commission's limited modification of the ALJ's decision, with respect to payment of medical expenses, was not based on the credibility of any witness who testified at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). Specifically, the administrative law judge found that there was no evidence in the record that the treatment expenses were required as a result of the work injury. The commission found otherwise, for the reasons outlined above.

cc: MARK A GRADY
PRINCIPAL ASSISTANT CORPORATION COUNSEL

ATTORNEY MICHAEL W FLEMING

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