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


SOCCORO CRUZ, Applicant

FRIDAY CANNING CORP, Employer

NATIONAL UNION FIRE INS CO OF PITTSB, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998042723


The employer submitted a petition for commission review alleging error in the administrative law judge's finding and interlocutory order dated August 20, 1999. Briefs were submitted by both parties. At issue is liability for temporary total disability benefits from November 1, 1997 until March 31, 1998, five percent permanent partial disability and medical expense as documented in Exhibit D and requests for an interlocutory order.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and modifies in part the findings and interlocutory order of the administrative law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

Delete the final ten sentences of the administrative law judge's findings of fact and conclusions of law which begin in the middle of the paragraph which begins on page 7 and concludes on page 8 of the administrative law judge's findings and substitute therefore:

"All of the applicant's out of state medical bills while treating in Texas are the responsibility of the employer and its insurer under the holding of UEF Inc. v LIRC. The final contested issue is entitlement to an interlocutory order. An interlocutory order will be issued regarding all possible future claims including future medical expense."

Delete the administrative law judge's interlocutory order and substitute therefore all except the first sentence of the commission's interlocutory order set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The findings and interlocutory order of the administrative law judge are affirmed in part and modified in part, in accordance with the above findings. Within 30 days from date, the employer and its insurer shall pay to the applicant, Soccoro Cruz, the sum of Eleven thousand two hundred sixty-three dollars and sixty-one cents ($11,263.61); and to applicant's attorney, Margaret Stafford, the sum of Two thousand eight hundred sixty-four dollars and seventy-one cents ($2,864.71) as attorney's fees plus the sum of One hundred ninety-five dollars and twenty-four cents ($195.24) as reimbursement of costs, and payment of the contested out-of- state medical expenses.

Jursidication is reserved as stated in the body of the decision.

Dated and mailed March 29, 2000.
cruzso . wmd : 175 : 7   ND § 5.48

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant suffered five percent permanent partial disability as a result of her work injury on October 25, 1997 and that the applicant was not entitled to further temporary total disability benefits from November 1997 to March 1998 because she had reached a healing plateau and had been released to return to work by her treating physician without restrictions by November 4, 1997. The employer states that there is no objective proof that there is any significant injury to the applicant's back and that no test supports the award of permanent disability.

The applicant testified that she was injured while working for the employer on October 25, 1997 when she fell down some steps and hit her back and had the immediate onset of back pain. The applicant testified that her back hurt, as well as her leg on the left side, and that she reported the injury immediately. The applicant testified that she had no prior history of back problems or need for treatment prior to her work injury in October 1997. The applicant treated with Dr. Combs who had the applicant undergo physical therapy and released the applicant for light work. Dr. Combs diagnosed the applicant with a contusion to the left buttock with left sciatica and he again saw the applicant on November 4, 1997 when he reported that the pain was much better but that she still has pain if she sits or moves in certain ways, and that the pain still occasionally goes down into her left foot. Dr. Combs stated on November 4, 1997 that the applicant continues to have some sciatic irritation down the left leg and she will continue with physical therapy but she is no longer working with the employer since the season had ended, and she is heading back to Texas in five days.

Dr. Combs noted that the applicant was to do two more days of physical therapy and then will follow up with her family doctor in Texas. Dr. Combs stated that the applicant has been improving and he feels she will heal with no permanent disability and she was discharged home in stable condition. Dr. Combs included a recommendation for physical activity form dated November 4, 1997 in which he indicated that the treatment plan was physical therapy and that she was to be reevaluated on November 10, 1997 with her own physician. Dr. Combs did not complete the section of the form which allowed the applicant to return to work. The applicant's physical therapy notes through November 7, 1997 indicate that she reported improvement, and the physical therapy notes on November 7, 1997 indicate that all goals were met with the exception of the applicant being pain free.

The applicant testified that when she last saw Dr. Combs on November 4, 1997 he told her to see her physician in Texas. The applicant specifically testified that she saw Dr. Combs just before she left and he gave her a pass to go to Texas because she still wasn't well. The applicant began treating with Dr. Tijmes in Texas on November 21, 1997. Dr. Tijmes diagnosed the applicant with a buttock contusion, low back pain and left leg radiculopathy and referred the applicant for a CT scan, as well as physical therapy. Dr. Tijmes completed a WC-16-B dated March 31, 1998 in which he attributed the applicant's low back problems to her work injury on October 25, 1997 when she fell down some steps. Dr. Tijmes indicated at that time that the applicant was unable to return to full time work and that she would be limited to no lifting over 40 pounds. Dr. Tijmes assigned a disability of five percent permanent partial disability due to low back pain and disability, as well as to the lower legs. Dr. Tijmes indicated that the elements of permanent disability were limited motion to her lumbar spine and left leg constant pain in radicular pattern. Dr. Tijmes completed a functional capacity form on August 14, 1998 in which he indicated that the applicant could occasionally lift six to 20 pounds and could never lift over 20 pounds, and that she was limited in her bending, twisting, squatting, crawling and climbing. Dr. Tijmes indicated at that time that the applicant could work part time, four hours per day and had permanent disability without surgery.

Dr. Lemon examined the applicant on behalf of the employer and indicated in his report dated November 16, 1998 that he believed that the applicant had plateaued from her work injury by November 4, 1997, and that her flare-up in back pain while in travel to her home in Texas was not related to her work injury but only to a preexisting degenerative changes. Dr. Lemon opined that the applicant has returned to baseline level with no permanent disability related to the work injury, but rather suffered only a temporary aggravation of her preexisting condition due to her fall at work on October 25, 1997.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony of her ongoing pain and restrictions as a result of her work injury in October 1997. The administrative law judge indicated that he found the applicant to be consistent and credible in her testimony of her ongoing pain and restrictions related to her work injury. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The commission credits Dr. Tijmes' assessment that the applicant suffered five percent permanent partial disability due to her work injury. The applicant had no evidence of prior back problems before her fall at work in October 1997 and she has had consistent reports of back pain radiating into her leg since the date of injury.

The commission does not find that the applicant had reached a healing plateau by November 4, 1997. Dr. Combs clearly contemplated that the applicant would undergo more treatment and she was continuing to report back pain and restrictions, although her physical therapy notes indicate that her back pain had improved. The employer contends that it had work available for the applicant if she had chosen to stay in Wisconsin rather than moving back to Texas. However, the applicant was not offered any work by the employer and the employer did not make the applicant aware that there was work available.

The administrative law judge found that the applicant was only entitled to out-of- state medical expenses incurred prior to January 1, 1998. The commission agrees with the administrative law judge that the evidence establishes that the applicant received a referral from Dr. Combs to her physician in Texas. Dr. Combs' note on November 4, 1997 indicates that the applicant will follow up with her family physician in Texas. Dr. Combs also completed a form on November 4, 1997 which indicated that the treatment plan included physical therapy and that the applicant was to be reevaluated on November 10, 1997 with her own physician. The applicant also credibly testified that Dr. Combs gave her a verbal referral to her Texas physician before she left in November 1997. The commission finds that Dr. Combs' notes taken together with the recommendation form and the applicant's testimony is sufficient to find that Dr. Combs referred the applicant to see her own physician in Texas.

However, the commission disagrees with the administrative law judge's assessment that the applicant was not entitled to payment for her out-of-state medical expenses in Texas after January 1, 1998 because there was no mutual agreement of the parties for any out-of-state treatment. The employer points to the fact that the Wis. Stat. § 102.42(2)(a) changed as of January 1, 1998 to require mutual agreement of the parties for any out-of-state treatment, and even such treatment that has been received following a referral to an out-of-state physician. However, 1997 Wisconsin Act 38 which incorporated the statutory change, states in section 48(5)(a) that the amendment of Wis. Stat. § 102.42(2)(a) first applies to referrals made to a practitioner not licensed and practicing in this state on referral by another practitioner on the effective date of this paragraph. The paragraph was effective on January 1, 1998. The applicant received her referral from Dr. Combs to her Texas physician in November 1997 prior to January 1, 1998. Therefore, it is clear from the provisions of the act that it was meant to apply to require mutual agreement only to those referrals which occurred on or after January 1, 1998. Since the applicant's referral from Dr. Combs to Dr. Tijmes occurred earlier, before the effective date of the act, the applicant was not required to get the mutual agreement of the parties for continuing out-of-state treatment after January 1, 1998. Therefore, the commission finds that the employer and its insurer are liable for all of the applicant's out-of-state medical expense incurred as a result of her referral from Dr. Combs in accordance with the holding in UEF Inc. v LIRC, 201 Wis. 2d 274, 548 N.W.2d 57 (1996).

 

PAMELA I ANDERSON, Commissioner (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. While there is a dispute as to whether Dr. Combs referred the applicant to another doctor, I will credit his comment about "then will follow up with her family doctor in Texas," to be a referral. At least Dr. Combs had the expectation that she would see her family doctor after she had completed his two therapy sessions and returned to Texas. If the employe had not been returning to Texas, I don't believe there would have been the referral. Dr. Combs had not taken the employe off work but allowed her to do light duty.

Dr. Combs' November 4, 1997 report states that "She has been having pains that go down into her left leg. The patient reports that the pain is much better, but she still has pain if she sits or moves in certain ways. She is able to walk with little difficulty. The pain occasionally goes down into her foot. She denies any numbness or weakness in her legs.The patient continues to have some sciatic irritation down the left leg.She is improving, and I feel she will heal with no permanent disability." At that time she had a full range of motion of toes, ankles, and knees. She had no pain along the spine.

I find that Dr. Lemon was more credible in his assessment at the end of the healing period and disability related to the work injury. I would find no permanent partial disability and limit her temporary total disability. While I do not believe the insurance carrier ever gave approval for out of state treatment, I would find against the carrier because of Dr. Combs' report but it is a close question.


__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY MARGARET STAFFORD
STAFFORD & NEAL SC

ATTORNEY PAUL R RIEGEL
MICHAEL BEST & FRIEDRICH LLP


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