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




Claim No. 91039585

The administrative law judge issued his findings of fact and interlocutory order in this case on July 26, 1994, following a hearing on April 19, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $184.00, and a February 5, 1991 compensable injury. The respondent previously conceded and paid for various periods through temporary disability through February 12, 1993, and permanent partial disability at 2% compared to disability to the body as a whole. The issues include the nature and extent of disability beyond that conceded and liability for medical expenses. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. The commission hereby affirms his findings of fact and interlocutory order, except as modified herein:


The first seven paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The eighth paragraph of the administrative law judge's Findings of Fact is deleted and the following substitute therefor:

"The applicant testified to a history of being physically active prior to the work injury of February 5, 1991 and thereafter experiencing continual pain and discomfort in the lower back. Dr. Gmeiner's report would require a conclusion that this substantial change was simply coincidental to the work injury. It is also contrary to the opinions of the treating doctors, most notably Drs. Dillon and Szmanda, who opined that the work injury caused a musculoligamentous strain, resulting in chronic low back pain for which permanent disability was rated at 2 or 2.5 percent of permanent total disability to the body as a whole. See July 9, 1992 report of Dr. Szmanda and August 5, 1991 and February 21, 1992 reports of Dr. Dillon. Applicant's exhibits D and G; respondent's exhibit 2.

"It must therefore be concluded that the work injury did directly or indirectly cause the disability for which the applicant sought surgical intervention from Dr. Larson in good faith. She is entitled to compensation for disability, including temporary disability, incurred as a result of that surgical intervention, even if it might be determined to be unnecessary. Spencer v. ILHR Department, 55 Wis. 2d 525, 532 (1973); Jenkins v. Sabourin, 104 Wis. 2d 309, 315 (1981)."

The ninth and tenth paragraphs of the administrative law judge's Findings of Fact are deleted.

The eleventh paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein, except that the last sentence of that paragraph is deleted and the following substituted therefor:

"A twenty percent attorney fee is authorized and totals $1745.17. Costs of $240.33 are also authorized."

The twelfth paragraph of the administrative law judge's Findings of Fact is deleted and the following substituted therefor:

"The last issue is liability for medical expenses. While there may remain some dispute as to the necessity of certain items of the applicant's medical treatment, the record establishes that applicant obtained treatment from the following providers in good faith to cure and relieve herself from the effects of her work injury:

$33,430.54 at Froedtert Hospital, of which $27,350.66 was paid by Mutual Group and it is entitled to reimbursement;

$717.00 from Sports Spine Clinic, which has already been paid by the respondent;

$200.00 from John Muohlendorf, D.C.;

$1,360.40 from Langlade Memorial Hospital, of which $23.60 was paid by the applicant and $1,336.80 by Mutual Group

and they are entitled to reimbursement; prescription expense in the amount of

$1,583.30 from Vosmek Drugs (which does not include $217.02 for Prozac that was not established to be treatment for the work injury) of which $185.09 was paid by the applicant and she is entitled to reimbursement;

$13,202.00 from Faculty Physicians and Surgeons, $58.00 of which has already been paid by the respondent;

$1,687.00 from North Central Neurological of which $290.00 was paid by Demper and it is entitled to reimbursement and $1,397.00 by the respondents;

$218.50 from General Clinic, of which the applicant paid $20.00

and she is entitled to reimbursement; and mileage expense of $93.60 for which the applicant is entitled to be reimbursed.

"On July 1, 1993, the respondent sent an 'Amended Notice of Worker's Compensation Health Service Necessity of Treatment Dispute' to Sanford Larson, M.D., and other physicians disputing the necessity of the applicant's 'April 29, 1993 spinal fusion and pre- and post-operative care and treatment.' See Respondent's exhibit 1. According to the Amended Notice, the respondent disputed the total amount of fees charged by the named individuals for the spinal fusion procedure. Attached to the Amended Notice are several pages of bills for services rendered by the physicians named in the Amended Notice. The services were billed through MCW Faculty Physicians.

"The respondent filed its Amended Notice under sec. 102.16 (2m), Stats., and sec. IND 80.73, Wis. Adm. Code. Section 102.16 (2m), Stats., sets up a process for settling disputes between providers and insurers about the necessity of treatment for injured employes who claim worker's compensation benefits. The injured worker is in effect immunized; if the provider prevails in the dispute, the insurer pays for the treatment, but provider may not attempt to recover the disputed fee from the injured worker, even if the insurer prevails. Section 102.16 (2m)(b), Stats. Another feature of the dispute resolution process is that, before deciding whether the disputed treatment was in fact necessary, the department must obtain an opinion about the necessity of the disputed treatment from an independent medical expert. The expert must be a licensed practitioner in the same field as the provider whose treatment is disputed. Section 102.16 (2m)(c), Stats. The statute also contains provisions explaining how parties may be charged for the services of the expert, how the expert may be chosen, and how the department's decision may be appealed. Section 102.16 (2m)(d), (e) and (f), Stats. Finally, section 108.16 (2m)(g), Stats., requires the department to promulgate rules establishing requirements, procedures, and fees for dispute resolution process.

"In response, the department promulgated sec. IND 80.73, Wis. Adm. Code. The rule, as one might expect, is almost entirely devoted to procedural provisions. Of particular interest in this case is sec. IND 80.73 (7)(f), Wis. Adm. Code, which provides:

'80.73 (7)(f) If the necessity of treatment dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the necessity of treatment dispute until a hearing is held or an order is issued resolving the dispute between the injured employe and the insurer or self-insurer.'

"The dispute resolution process begun by the respondent under sec. 102.16 (2m), Stats., in this case should be carried out to completion. While the applicant filed an application for hearing before the respondent filed its Amended Notice, that does not mean the formal hearing process may preempt the statutory dispute resolution process. Completing the process under section 102.16 (2m), Stats., in this case would not prejudice the applicant. She is protected from liability for the disputed fees by sec. 102.16 (2m)(b), Stats. Her right to pursue disability payments and out-of-pocket medical expenses in a formal hearing under sec. 102.17, Stats., is not affected by sec. 102.16 (2m), Stats., and is in fact guaranteed by sec. IND 80.73 (7)(f), Stats.

"On the other hand, failing to use the dispute resolution process does prejudice the insurer, as it loses its right to review by an independent expert chosen by the department. The fact that the insurer may hire its own 'independent expert' to provide a report or testimony cannot be viewed as an adequate substitute.

"Consequently, payment of the $13,202.00 in medical treatment expenses billed by Faculty Physicians and Surgeons shall not be ordered. Rather, the issue of payment of those bills is remanded to the department for resolution under sec. 102.16 (2m), Stats.

"The remainder of the medical treatment expenses from other providers are found to be reasonable and necessary and shall be ordered paid. Some of the remaining treatment expenses, such as those from Froedtert Hospital, may include charges associated with the fusion surgery. However, the applicant incurred these expenses in good faith to cure and relieve the effects of her injury. Further, these remaining treatment expenses and their providers were not listed in the respondent's Amended Notice under sec. 102.16 (2m), Stats. Thus, these remaining expenses are covered by the general rule that treatment expenses incurred in good faith on the advice of a doctor must be paid, even if another doctor disagrees and the department finds the treatment unnecessary. Spencer, at 55 Wis. 2d 532.

" The twelfth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.

The administrative law judge's Interlocutory Order is deleted and the second, third and fourth paragraphs of the Modified Interlocutory Order are substituted therefor.

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


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

1. To the applicant, Judianne J. Hull, the sum of Six thousand seven hundred forty dollars and thirty- five cents ($6,740.35) for disability.

2. To the applicant's attorney, Helen Schott, the sum of One thousand seven hundred forty-five dollars and seventeen cents ($1,745.17) as attorney fees, and Two hundred thirty-three dollars and forty cents ($233.40) as costs;

3. To Froedtert Hospital, the sum of Six thousand seventy-nine dollars and eighty-seven cents ($6,079.87);

4. To Jon Moellendorf, D.C., the sum of Two hundred dollars and no cents ($200.00);

5. To Langlade Memorial Hospital, the sum of Three hundred forty-eight dollars and no cents ($348.00);

6. To Vosmek Drugs, the sum of One thousand three hundred ninety-eight dollars and twenty-one cents ($1,398.21);

7. To General Clinic, the sum of One hundred ninety- eight dollars and fifty cents ($198.50);

8. To Mutual Group, the sum of Twenty-eight thousand one hundred twenty-seven dollars and six cents ($28,127.06);

9. To Kemper Insurance, the sum of Two hundred ninety dollars and no cents ($290.00); and

10. To the applicant, Judianne J. Hull, the sum of Three hundred twenty-two dollars and twenty-nine cents ($322.29), as reimbursement for medical treatment expenses and medical mileage.

The issue of necessity of the medical treatment provided by various doctors associated with "MCW Faculty Physicians" or "Faculty Physicians and Surgeons," is remanded to the department of resolution under sec. 102.16 (2m), Stats. Jurisdiction is retained to issue such further orders as may be warranted and are not inconsistent with this decision.

Dated and mailed February 20, 1995
ND 5.47

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner


It might be argued the fusion surgery was performed to correct some condition other than the work injury, so that neither the fusion surgery, nor the disability therefrom, was strictly work-related. The theory behind this argument might find some support from the court of appeals holding in City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App., 1982). The argument has rather less support in the facts. The commission notes initially that the respondent itself does not seek reversal of the applicant's disability on that ground. Although the commission is not bound by the arguments of the parties in its review, the fact remains that the respondent seeks only to avoid payment for medical treatment it argues was unnecessary and unwarranted. See respondent's brief dated November 7, 1994, pages 9 and 10; respondent's reply brief dated December 9, 1994, page 2. The only factual support for the argument that the disability leading to the disputed surgery was not caused by work comes from Dr. Gmeiner's report. Exhibit 4. He opines that the fusion surgery "at best could be for a degenerative process which was not aggravated, precipitated or accelerated by the work related incident." He also opined that the applicant recovered from the work injury without permanent disability, and that any disability thereafter coincidentally arose from the pre-existing degenerative condition. The commission agrees with the administrative law judge in disregarding this aspect of Dr. Gmeiner's opinion, especially in light of its conflict with the more credible opinions of Drs. Szmanda and Dillon. The commission did not confer with the administrative law judge concerning witness credibility or demeanor in this case. The commission's modification of the judge's decision was not based on witness credibility, but on a different interpretation sec. 102.16 (2m), Stats.



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