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

HARVEY HASLETT, Applicant

MASTER LOCK COMPANY, Employer

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995036412

In October 1995, the applicant filed an application for hearing, claiming disability compensation and medical expense from a May 1994 injury. The employer and its insurer (collectively, the respondent) contested the claim.

In August 1996, a hearing was held before Administrative Law Judge (ALJ) Sherman Mitchell of the Worker's Compensation Division of the Department of Workforce Development. At issue before ALJ Mitchell was whether the applicant had suffered a compensable injury in May 1994; that is, whether he sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employer. Ancillary issues included the nature and extent of the applicant's disability from the injury, and the respondent's liability for medical expense.

In July 1997, ALJ Mitchell issued a decision finding a work injury. ALJ Mitchell left his order interlocutory to permit the payment of additional medical expense. Indeed, reimbursement of future medical expenses to treat a work injury survives even a "final" order under Lisney v. LIRC, 171 Wis. 2d 499, 522 (1992), reconsideration denied, 174 Wis. 2d 680 (1993). This commission affirmed ALJ Mitchell's decision in February 1998.

Thereafter, the applicant incurred an additional $3,976.50 in expense for chiropractic treatment rendered by Richard J. Kemp, D.C., in 1999 and 2000. That issue was heard at a second hearing before ALJ Mitchell in June 2000, with a closure of the record in July 2000. In October 2000, ALJ Mitchell issued his decision ordering Dr. Kemp's medical expenses paid.

The respondent filed a timely petition for commission review of ALJ Mitchell's October 2000 order. Accordingly, the issue the respondent's liability for the $3,976.50 expense for chiropractic treatment rendered by Richard J. Kemp, D.C., in 1999 and 2000 is now before the commission.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Following the applicant's May 1994 injury, the employer sent the applicant to Occupational Medical Clinics for treatment. There the applicant treated with Maja Jurisic, M.D., Dennis Schultz, M.D., and William Stewart, M.D., for an extended period stretching into 1995. See respondent's exhibit 2.

While he was in the course of this treatment, the applicant was seen by Dale E. Bauwens, M.D., on June 8, 1994. Dr. Bauwens does not practice with Occupational Medical Clinics, and there is no evidence the applicant was referred to Dr. Bauwens by any of the Occupational Medical Clinics doctors. Instead, the applicant saw Dr. Bauwens because he had previously treated with him for a prior injury in 1983.

The applicant describes the June 8, 1994, visit with Dr. Bauwens as a consultation, not treatment, and asserts that he was seeking only an opinion on the work-relatedness of his injury. Dr. Bauwens's treatment note from June 8, 1994, describes a one-month history of back pain, after the applicant twisted his back in the normal course of his employment, resulting in intermittent shooting pain down the left leg. Following an examination, the doctor diagnosed radiculitis, and a possible disc herniation. The doctor recommended certain medications, Orudis and Medrol. He also recommended a three-week follow-up, and further work-up if no improvement was shown.

The applicant did not return to Dr. Bauwens for treatment. Instead, he continued his treatment at Occupational Medical Clinics for about another year.

Then, on June 6, 1995, the applicant saw Stephen Delahunt, M.D., who practices with Spine Clinics of Wisconsin. Again, the applicant was not referred to Dr. Delahunt by any of the doctors at Occupational Medical Clinic, or by Dr. Bauwens. Dr. Delahunt diagnosed a work injury. According to the applicant's testimony, the doctor recommended, and performed, injections. Billing records show visits to Dr. Delahunt on June 5 and July 24, 1995, and March 11, 1996. Exhibit 4.

Next, on July 31, 1995, the applicant returned to Dr. Bauwens. Dr. Bauwens's note for this treatment begins:

"WC Patient reappears today after an absence of over a year from my practice. Essentially, after the last time he was here he decided to seek care elsewhere. He presents today without any medical records."

Dr. Bauwens's treatment note refers to the applicant's treatment by Dr. Delahunt but does not mention a referral. Nor does Dr. Delahunt's note mention a referral. Nor is a referral documented in the notes from Occupational Medical Clinics.

The applicant saw Dr. Bauwens on three more occasions to November 28, 1995.

At the August 1996 hearing before ALJ Mitchell, the applicant sought payment of the expenses of treatment rendered by Dr. Bauwens (exhibit A from August 1996 hearing). Indeed, ALJ Mitchell's July 1997 decision ordered the insurer to pay Dr. Bauwens and reimburse a non-industrial insurer who had paid some of Bauwens's bills. Among the bills ordered paid was a bill for the June 8, 1994 office visit. The insurer had paid the bills from Dr. Delahunt before the first hearing.

Then, as noted above, the applicant began seeing Richard J. Kemp, D.C., in 1999 and 2000. The applicant was not referred to Dr. Kemp by any prior treating doctor, nor is Dr. Kemp a partner or associate of any prior treating doctor. The applicant eventually incurred $3,976.50 in treatment expense. He now claims compensation for this item of expense.

The applicant concedes that the treatment with Dr. Kemp constituted a "choice." However, he asserts that Dr. Kemp was his "second choice" (Dr. Delahunt being the first) and that Dr. Kemp's expenses are therefore compensable.

1993-94 Wisconsin Statutes § 102.42(2)(a) (1) provides:

"102.42(2)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employe his or her choice of any physician, chiropractor, psychologist, dentist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employe may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employe shall be given his or her choice of attending practitioner at the earliest opportunity. The employe has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner."

Under the statute, an injured worker is allowed only two "free" choices of practitioner; prior approval must be obtained from the insurer or employer for treatment beyond the second choice of practitioner. Treatment on referral from a doctor, or treatment with partners of a doctor or within his or her clinic, is considered treatment by the one doctor. Wisconsin Statutes § 102.42(2)(a). Unapproved treatment expense from practitioners beyond the second choice is not compensable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996). In addition, the court of appeals has held that the "choice" is made by seeking reimbursement for the expenses incurred with a treating practitioner, not the act of seeking treatment itself. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 621-23 (Ct. App. 1998).

In this case, the applicant first treated with Occupational Medical Clinics where he was sent by the employer. The respondent contends that this treatment was a choice, because the applicant chose to continue treating with that clinic for a long period of time. The respondent cites Sazama v. Collins Construction and Remodeling, WC claim no. 92068079 (LIRC, November 7, 1996), for the proposition that -- where the applicant is sent by the employer to a particular clinic without a choice in case of emergency -- continuing treatment at the clinic once the emergency has passed is a "choice." In Sazama, the employer arranged to have the applicant taken to the Marshfield Clinic as emergency treatment on the day of injury after the applicant sustained a concussion in a fall.

However, the Sazama case is distinguishable. There was no evidence that the employer in Sazama cared where the applicant treated after the emergency was addressed, much less that the employer directed the applicant to the Marshfield Clinic for continuing non-emergency care. In this case, the applicant began treating at Concentra Occupational Medical Clinic at the employer's directions the day after his injury. No emergency was involved. The commission sees a difference between: (a) continued, non-emergency treatment at a clinic to whose emergency room the employer sent the employee while in a concussed state, and (b) continued treatment at a clinic which specializes in industrial injuries and where the applicant was directed by the employer when no emergency was present. In short, when a worker is sent to a particular practitioner by his employer in a non-emergency situation, and continues to treat with that practitioner, it would seem reasonable to conclude that he has not exercised a choice under Wis. Stat. § 102.42(2).

In the end, however, whether Occupational Medical Clinic was a "choice" under Wis. Stat. § 102.42(2), does not matter. The applicant exceeded two choices by the time he treated with Dr. Kemp even if Occupational Medical Clinic is not counted as a choice.

As noted above, on June 8, 1994, the applicant saw Dr. Bauwens without a referral. The applicant, however, asserts this was for consultation on the legal issue of the work relatedness of his injury. Indeed, a valid distinction may be drawn between medical expenses incurred for treatment and physician expenses incurred solely for litigation. For example, a bill from a practitioner to prepare a litigation-related expert opinion may not be "treatment" and thus not compensable under Wis. Stat. § 102.42. A one-time consultation to obtain a diagnosis and course of treatment, however, would amount to "treatment."

In this case, however, there is considerable reason to doubt the credibility of the applicant's testimony that he saw Dr. Bauwens only for the purposes of his worker's compensation claim and not for "treatment." In the first place, the doctor's June 6, 1994 note does not indicate that the applicant was seeing the doctor for the limited purposes of supporting his workers compensation claim. Indeed, the note says nothing about causation (except to repeat the applicant's history), yet does recommend a course of treatment. Further, at the first hearing, the applicant sought compensation for Dr. Bauwens's expenses, all of them, listing the expenses on a form WKC-3 entitled "Medical Treatment Statement." Indeed, ALJ Mitchell's 1997 decision orders the insurer to pay Dr. Bauwens's expenses, including the expenses for June 8, 1994. (2)   This should only have happened if the expense was for "treatment," as Wis. Stat. § 102.42 provides for reimbursement of treatment expense. The applicant should not be allowed to claim an expense is compensable as "treatment" at one hearing, but then assert the expense was for a noncompensable "consultation" at the next.

In short, the applicant saw Dr. Bauwens on June 8, 1994 for treatment. (3)    As his bill was submitted for payment at the first hearing, the applicant "chose" him under Hermax Carpeting, supra. It is undisputed that the applicant saw Dr. Delahunt thereafter without a referral; the applicant submitted his bill for payment at the first hearing as well.

Thus, regardless of whether the treatment at the Occupational Medical Clinic was a "choice," the applicant exhausted his two statutory choices by treating with, and claiming compensation for the treatment expense from, Drs. Bauwens and Delahunt. The applicant concedes that treatment expense from Dr. Kemp was without referral. The commission concludes that the treatment expense must therefore be denied beyond the permitted choices under Wis. Stat. § 102.42(2).

ORDER

The findings and order of the administrative law judge are reversed. The applicant's claim for payment of Dr. Kemp's treatment is expense is dismissed.

Dated and mailed March 1, 2001
haslett.wrr : 101 : 3 :  ND § 5.48

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ, who stated that he found credible the applicant's testimony that he saw Dr. Bauwens in June 1994 for the purposes of soliciting support for his workers compensation claim only, and not for treatment. However, the commission cannot agree with the ALJ's credibility assessment in this case based on the language of Dr. Bauwens June 1994 note and the applicant's prior claim for that visit as medical treatment expense, as explained in the body of this decision.

cc:
Attorney James P. Reardon
Attorney Gerald Pagel

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Footnotes:

(1)( Back ) This is the version of the statute in effect on the date of injury, see Wis. Stat. § 102.03(4).

(2)( Back ) Exhibit A from the first hearing includes a bill from Dr. Bauwens which includes the June 1994 treatment expense. The expenses were paid by a non-industrial insurer. The ALJ's order required the insurer to reimburse the non-industrial insurer, and to pay Dr. Bauwens for the amounts the non- industrial insurer had written off.

(3)( Back ) The applicant also asserts that the applicant's return to Dr. Bauwens in July 1995 was on referral from Dr. Delahunt. However, as explained above, neither doctor's note documents any such referral. While ALJ Mitchell's July 1997 decision does state that the applicant treated with Dr. Delahunt and was referred to Dr. Bauwens, the commission regards the statement as obiter dicta as the choice of practitioner issue was not at issue in that case. In any event, any referral in July 1995 would not cover the treatment with Dr. Bauwens in June 1994. The commission has previously rejected the idea of retroactive referrals. Janet Pitzer v. Randalls Discount Foods, WC case no. 1996-062650 (November 4, 1999). The applicant, of course, does not argue for a retroactive referral but instead, as discussed above, characterizes the June 1994 office visit with Dr. Bauwens as not actually for treatment.

uploaded 2001/03/13