Wis.LIRC WC Decision: Olson, Marianne - December 30, 1992 - ND � 5.48 - Choice of Treating Practitioner - consent of insurer not necessary where out-of-state practitioner is seen on referral rather than as a "choice"; where practitioner noted applicant was not willing to accept his diagnosis "so we are referring her for a third opinion from a hand surgeon at Mayo with these records", this was a referral

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MARIANNE OLSON, Applicant

NORTHERN ENGRAVING CORPORATION, Employer

SENTRY INSURANCE (A MUTUAL COMPANY), Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90-053540

The employer and the insurer (collectively, the respondent) have submitted a petition for Commission review, and the file also contains briefs from both sides. The respondent conceded the jurisdictional facts, an average weekly wage of $268.40 and that the employe suffered a work-related injury on July 16, 1990. The respondent's petition for Commission review alleges error in the Administrative Law Judge's Findings and Order dated September 17, 1992. At issue is whether the respondent was liable for expenses for medical treatment received by the applicant in another state.

The Commission has carefully reviewed the entire record in this matter, and hereby sets aside the Administrative Law Judge's Findings and Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began to experience pain in her right wrist while working as a punch press operator for the employer in 1988. She described her pain as tightness and swelling in the wrist, going up to her shoulder. The parties agree that the date of injury was July 16, 1990. The applicant was first treated at the Gundersen Clinic in La Crosse where she was diagnosed with carpal tunnel syndrome and received work hardening therapy. Dr. Allen G. Brailey, Jr., at the Gundersen Clinic opined on March 22, 1991, that she had reached a healing plateau and he released her to work with a permanent restriction that she not operate a punch press or use an air gun.

The applicant was dissatisfied with the result of her treatment at the Gundersen Clinic and she sought additional treatment at the Skemp Clinic in La Crosse. The applicant received additional tests regarding carpal tunnel syndrome, but the tests turned out normal. Dr. Gary J. Phipps (from the Skemp Clinic) believed that she might have had a muscular problem and thought it was "probably subjectively worse than objectively." He opined that she could be released to work under the same restrictions as imposed by the Gundersen Clinic with no expected impairment. Finally, Dr. Phipps' July 23, 1991, treatment notes indicated that the applicant was not willing to accept his diagnosis "so we are referring her for a third opinion from a hand surgeon at Mayo with these records."

She was next seen by Dr. R. D. Beckenbaugh at the Mayo Clinic in Rochester, Minnesota, October of 1991. Dr. Beckenbaugh sent Dr. Phipps a letter which stated that the applicant was "developing an overuse type of problem with recurrent median nerve irritation of the wrist or typical occupationally aggravated carpal tunnel syndrome." Because Dr. Beckenbaugh believed there was no damage to the nerve, he did not feel surgical intervention was necessary. However, he did recommend that she find another job because if she kept on with her work on the employer's assembly line she would eventually develop a need for surgery. In addition to her consultation with Dr. Beckenbaugh, the applicant received an injection of steroids for her symptoms, x-rays and an EMG at the Mayo Clinic. The total charge for her treatment there was $807.80.

The respondent contends that the applicant's treatment expenses at the Mayo Clinic are not compensable. The respondent contends that prior consent is needed for an insurer to be liable for treatment rendered by an out-of-state practitioner under sec. 102.42 (2)(a), Stats. That section provides as follows:

"(2) CHOICE OF PRACTITIONER. (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 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.

In their handbook, two commentators have briefly summarized sec. 102.42 (2)(a), Stats. In relevant part, the commentators state:

"There is an automatic second choice but no third choice or choice of an out-of-state practitioner except with the employer's consent. Partners and clinics count as one practitioner and referrals to other practitioners do not count as additional 'choice'."

Neal and Danas, Worker's Compensation Handbook, sec. 5.44 (1991). Basically, an applicant gets two "choices" of practitioner, and referrals by those "choices" to other doctors are within the same "choice."

Section 102.42 (2)(a), Stats., requires the consent of the insurer before an employe may choose treatment by an out-of-state physician. However, this case deals with a referral to the Mayo Clinic by a Wisconsin doctor, not a choice by the applicant to seek treatment in Minnesota. The statutes clearly distinguish between an applicant's "choice" to see a specific physician in the first instance and a subsequent referral to another physician. The statute limits the "choice" of an out-of-state physician, rather than a referral to one. Prior permission from the insurer is not necessary for the referral to the Mayo Clinic, assuming that the applicant was actually referred there.

An argument could be made that Dr. Phipps' referral of the applicant to the Mayo Clinic was not actually a referral, so much as a grudging recommendation of another doctor should she want a third opinion. One could therefore argue that the employe was essentially making a "third choice" when she sought treatment at the Mayo Clinic. If that were the case, she would need permission from the insurer not only because the Mayo Clinic is out-of-state, but because it also is outside of the scope of the first two "choices." In that case, the Administrative Law Judge's reasoning that the applicant had received "tacit" permission when the insurer did not object upon learning that she was seeking treatment at the Mayo Clinic would be at issue. However, the Commission concludes that Dr. Phipps referred the applicant to the Mayo Clinic. The Administrative Law Judge specifically found a referral by Dr. Phipps to the Mayo Clinic and the record supports that finding. Because that referral was still within the scope of the applicant's second choice of the Skemp Clinic, it is compensable under sec. 102.42 (2), Stats.

The Commission therefore finds that the applicant sustained a work-related injury on July 16, 1990. In connection with her injury the employe incurred reasonable and necessary medical expenses to cure and relieve her of the effects of the injury from the Mayo Clinic in the sum of $807.80. A twenty percent attorney's fee equals $161.56, pursuant to a request made under sec. 102.26, Stats. The attorney's costs were $34.

Because other issues regarding the applicant's injury are pending before the Department, jurisdiction is reserved.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within ten days, the employer and insurance carrier shall pay to the applicant's attorney, Dan Arndt, the sum of One hundred sixty-one dollars and fifty-six cents ($161.56) as attorney fees plus the sum of Thirty-four dollars ($34) as reimbursement for costs; and to the Mayo Clinic, the sum of Six hundred twelve dollars and twenty-four cents ($612.24).

Jurisdiction is reserved.

Dated and mailed December 30, 1992.
ND � 5.48

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The Commission did not confer with the Appeal Tribunal about witness credibility and demeanor in this case. Transamerica Insurance Company v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972). First, the Commission merely rewrote, and did not reverse, the decision of the Administrative Law Judge. In this case, the Commission reached the same result as the Administrative Law Judge, on essentially the same facts as found by her, by different legal reasoning. Indeed, the Administrative Law Judge herself noted that witness credibility was not an issue in her resolution of this case.

The Administrative Law Judge awarded benefits because she believed that the insurer gave tacit permission to the applicant to seek treatment from the Mayo Clinic. The synopsis of the hearing testimony on this point indicates that the applicant testified as follows:

"I went to the Skemp Clinic and they would not help me. They gave an EMG, physical therapy and then referred me to the Mayo Clinic.

"I was not dealing with Jane Erickson but a Jim Kiefer for the carrier. He only wanted to know when I would be going. He did not tell me not to go to the Mayo Clinic."

Accordingly, the Administrative Law Judge found that "when the applicant told the insurance carrier she was going to the Mayo Clinic, the carrier did not object. The carrier by its silence led the applicant to believe that the treatment was authorized."

In its petition, the respondent contends that this conclusion is erroneous by virtue of the letters it sent to the applicant July 18 and August 19. The July 18 letter that the applicant admits she did receive refers to other treatments by doctors generally. Basically, respondent was denying any further liability related to the work injury. The July 18 letter would not seem to be a specific denial of permission to go to the Mayo Clinic, particularly since the applicant was not even referred to the Mayo Clinic by Dr. Phipps until July 23. The August 19, 1991 letter, on the other hand, is specific. However, it deals with treatment at the Skemp Clinic in La Crosse. Neither letter actually dealt with out-of-state treatment, so much as treatment in general. On the other hand, neither gave the applicant permission to go to an out-of-state doctor.

However, neither letter is part of the hearing record. The synopsis of the hearing record does not mention the August 19 letter at all, unless the applicant's reference to an April 8 (or 18), 1992 letter which she did not receive was a reference to the August 19 letter. The applicant argues in her brief, with some force, that both the letters attached to the respondent's petition are outside the evidence introduced at the hearing and should not be considered. More importantly, however, because the applicant's treatment at the Mayo Clinic was the result of a referral by her second choice of practitioner, preauthorization or prior consent by the respondent was not necessary. The treatment that the applicant received at the Mayo Clinic was both reasonable and necessary so the applicant is entitled to payment of the treatment expense under sec. 102.42 (2), Stats.

Finally, the case file indicates that the parties have reached a limited compromise agreement on another issue. Like the Administrative Law Judge, the Commission left its order interlocutory to preserve the Department's jurisdiction to deal with the compromise or other outstanding issues.

cc: Attorney Dan Arndt
Arndt Buswell and Thorn SC

Attorney Lisa A Elander
Mudge Porter and Lundeen SC

101 : CD0787

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