Wis.LIRC WC Decision: Carleton - March 20, 2001 - ND � 5 . 47 - Disputes About Reasonableness of Fees and Necessity of Treatment - where Respondent had no medical opinion challenging reasonableness of a Dr's bill, ALJ refused to place the claim into dispute resolution under � 102.16 (2); however, where the bill had not been provided to Respondent w/in 15 days of hearing, this was good cause for Respondent failure to have medical opinion; remand for reasonableness dispute resolution

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

MARY CARLETON, Applicant

PLASTICS UNLIMITED INC, Employer

EMPLOYERS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-002177

Plastics Unlimited, Inc. and Employers Mutual Casualty Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 27, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a cervical disc injury on or about May 11, 1995, nature and extent of disability, liability for medical expense, and whether the order should be final or interlocutory.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is January 2, 1947, was employed in the employer's shipping and receiving department as a loader. On May 11, 1995, she experienced pain in the left side of her neck and her left arm when she attempted to open the employer's overhead garage door that was heavier than usual due to a soaking rain. She was seen in the emergency room that day and the physician there diagnosed trapezius muscle strain. The applicant thereafter received treatment from Dr. Thomas Jensen and Dr. Jeffrey Gorelick, which included treatment for a small stroke occurring on or about November 28, 1995. These physicians took her off work in December 1995 through February 1999, due to continuing left arm and neck pain. She was then released, first to light duty and then to full-time work.

The applicant also described two incidents which occurred at work prior to May 11, 1995, but specific dates were not given. In the first incident, the overhead garage door was not opening properly and a rope on the door wrapped around the applicant's arm and pulled her to the ground. In a second incident, the door came down and hit her on the left shoulder. She reported these incidents to her supervisor but did not seek medical treatment and did not miss any work.

The applicant continued working and experienced numbness in her shoulder and her left hand. Dr. Jensen continued treating the applicant and initially thought that the symptoms were due to the stroke which she had sustained. However, Dr. Jensen sought consultation with Dr. Arvind Ahuja, a neurosurgeon, on January 31, 1996. Dr. Ahuja treated the applicant with anti-inflammatory medications and released her in April of 1996. He next saw the applicant for back complaints in December of 1996, and did not see her again until August 31, 1998. On that date, the applicant complained of neck pain beginning in the left side of her neck and radiating into her head. A cervical myelogram and CT scan performed on September 30, 1998, revealed that the applicant had sustained a herniated cervical disc at the C5-6 level. On November 21, 1998, Dr. Ahuja performed an anterior cervical discectomy and fusion at the C5-6 level. In narrative reports dated September 29, 1999, and November 1, 1999, Dr. Ahuja opined that the applicant's three injuries, particularly the injury of May 11, 1995, materially contributed to the applicant's herniated cervical disc and need for surgery. Dr. Ahuja ultimately assessed 7 percent permanent partial disability.

At the insurer's request, Dr. Paul Barkhaus examined and evaluated the applicant on October 23, 1998. In his report dated November 4, 1998, he opined that the applicant sustained a mild cervical ligament strain as a result of the work injury of May 11, 1995. He opined that her "subjective feelings of numbness and pain" persisted, but he saw no objective clinical findings to support her symptoms. Dr. Barkhaus referred to the results of the cervical myelogram and CT scan performed on September 30, 1998, by stating that he did not appreciate the clinical indication for the CT myelogram of the applicant's cervical spine performed on September 30, 1998, and that he would not have pursued such tests. He did not comment directly on the fact that the tests showed a disc herniation at C5-6, nor is there any opinion from him addressing the surgery of November 21, 1998.

Dr. Ahuja performed the cervical discectomy and fusion on November 21, 1998, and his opinion that there was a work-related cervical disc herniation is far more credible than the opinion given by Dr. Barkhaus. Dr. Barkhaus' opinion is ambiguous with respect to his interpretation of the cervical CT myelogram, and he offered no opinion subsequent to the applicant's surgery, a surgery which verified the cervical disc herniation. Accordingly, the commission concurs with the administrative law judge that Dr. Ahuja's opinion regarding causation is credible, and the applicant sustained a compensable cervical disc herniation with a date of injury of May 11, 1995.

The applicant is therefore entitled to temporary total disability for the period between November 5, 1998, and May 1, 1999 (both dates exclusive), a period of 25 weeks and one day, at the escalated temporary total disability rate of $226.75 per week. This totals $5,706.54. Pursuant to Wis. Admin. Code � DWD 80.32(11), the applicant is also entitled to ten percent permanent partial disability for the cervical discectomy and fusion performed on November 21, 1998. This entitles the applicant to 100 weeks of compensation at the applicable rate of $164.00 per week, for a total of $16,400.00, all of which has accrued.

Pursuant to request under Wis. Stat. � 102.26, the applicant's attorney's fee is fixed at $4,421.31 (20 percent of $22,106.54). No costs were claimed.
Respondents are also liable for reimbursement of reasonably required medical expense as follows: To Blue Cross/Blue Shield the sum of $16,808.63; to Kirke VanOrsdal the sum of $3,935.81; to AHC-PPO the sum of $3,964.33; and to the applicant the sum of $427.04.

An outstanding medical expense claim for services from Dr. Ahuja, in the amount of $13,617.94, was disputed by the respondents as unreasonable in amount. The administrative law judge refused respondents' request to place this claim into dispute resolution under Wis. Stat. � 102.16(2), because respondents did not have a medical opinion at the hearing challenging the reasonableness of Dr. Ahuja's fee. Pursuant to Wis. Stat. � 102.18(1)(bg), the administrative law judge has the discretionary authority to invoke the dispute resolution process concerning the reasonableness of a disputed medical bill. It appears that the administrative law judge was not made aware of the fact that the WC-3 containing Dr. Ahuja's bill for the additional $13,617.94 was not received by the respondents until July 19, 2000, less then 15 days prior to the hearing held on August 1, 2000. (1 ) This constituted a violation of Wis. Stat. � 102.17(8), and could have resulted in a refusal to accept the WC-3 into evidence had an objection been raised. An objection was not raised, but these facts constituted good cause for respondents' failure to timely obtain a medical opinion disputing the reasonableness of Dr. Ahuja's fees. Considering the circumstances of this case, the commission exercises its discretion under Wis. Stat. � 102.18(4)(c), to remand the issue of Dr. Ahuja's outstanding fee to the department to allow respondents to initiate the dispute resolution process.

Respondents also objected to the administrative law judge's decision to leave the order interlocutory, asserting that Dr. Ahuja gave no opinion contemplating the possibility of future treatment or disability attributable to the work injury and resulting surgery. However, in a letter dated September 29, 1999, Dr. Ahuja indicated that the applicant had been released with no further "scheduled" neurological follow-up, but that she would follow up on an "as needed" basis. Given Dr. Ahuja's opinion, together with the seriousness of the applicant's surgery, it is reasonable and prudent to leave the order interlocutory. If no further treatment or disability is reasonably required then neither will be compensated.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant compensation in the amount of seventeen thousand six hundred eighty-five dollars and twenty-three cents ($17,685.23); to applicant's attorney, Robert Ward, fees in the amount of four thousand four hundred twenty-one dollars and thirty-one cents ($4,421.31); to Blue Cross/Blue Shield reimbursement in the amount of sixteen thousand eight hundred eight dollars and sixty-three cents ($16,808.63); to Kirke VanOrsdal reimbursement in the amount of three thousand nine hundred thirty-five dollars and eighty-one cents ($3,935.81); to AHC-PPO reimbursement in the amount of three thousand nine hundred sixty-four dollars and thirty-three cents ($3,964.33); and to the applicant as reimbursement for medical expense the sum of four hundred twenty-seven dollars and four cents ($427.04).

The issue of Dr. Ahuja's additional charge for $13,617.94 in medical expense is remanded to the department to allow respondents to initiate the dispute resolution process under Wis. Stat. � 102.16(2).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed March 20, 2001
carlema . wsd : 185 : 8 ND � 5 . 47

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc:
Attorney Robert T. Ward
Attorney Roger H. Weede

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Footnotes:

(1)( Back ) Respondents' claim in their petition that they did not receive their copy of the WC-3 until July 19, 2000, is supported by the fact that the fax notation at the bottom of Dr. Ahuja's invoice is dated July 17, 2000, indicating that was the date he faxed the bill to the respondents. The applicant has not disputed respondents' assertion that they did not receive a copy of the disputed bill until July 19, 2000. The fifteenth day prior to the hearing would have been July 17, 2000.