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

JANET M DONOVAN, Applicant

MILWAUKEE TRANSPORT SERVICES INC, Employer

MILWAUKEE TRANSPORT SERVICES INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-034575

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as a bus driver for the employer. She sustained a conceded accidental work injury to her right wrist on June 18, 1999, when a rider bent her hand back. She asked the employer where to treat and was sent to Columbia Hospital where she first treated on June 28, 1999. She continued treatment at Columbia beyond the initial visit on several occasions. Applicant was then referred to Dr. Siverhus who treated her until November 1, 1999. Dr. Siverhus in turn sent her to another doctor in the same clinic, Dr. Crimmins.

On October 20, 1999, Dr. Crimmins examined applicant and found a "completely normal wrist in all respects." He found her complaints were subjective and her clinical presentation did not support any real evidence of carpal tunnel syndrome (CTS). Further, Dr. Crimmins indicated that he did not think the originating injury could have caused any significant CTS and any symptoms were not related to her original injury. On November 1, 1999, Dr. Siverhus stated "I am in agreement with Dr. Crimmins with regard to the work relatedness in that she had reached a plateau with regard to her work related (sic) and any further symptoms are unrelated." Exhibit 1.

Applicant's family doctor referred her to Dr. Watchmaker who first saw her on November 18, 1999. Dr. Watchmaker noted applicant's history of pain since the work incident and essentially noted little evidence of CTS. Dr. Watchmaker recommended a bone scan. No work restrictions were given. Applicant again saw Dr. Watchmaker on December 9, 1999. Again Dr. Watchmaker noted that the findings for CTS were quite mild. Nonetheless, applicant chose to undergo CT release. Applicant had right carpal tunnel release on December 9, 1999.

Applicant seeks TTD from the period of November 1, 1999, to February 14, 2000, and June 18, 2000, to August 22, 2000, (the date of the hearing). Respondents argue she reached a healing plateau on October 20, 1999, and seek a finding of overpayment of $714.80 for the period of October 21, 1999, to November 1, 1999. The ALJ found a plateau date of March 3, 2000, and awarded TTD to that date, along with medical expenses.

Applicant submitted as Exhibit A, Dr. Watchmaker's office notes of November 18, 1999, and December 9, 1999, as well as an EMG dated October 4, 1999 and an MRI dated August 2, 1999.

Applicant submitted as Exhibit B, a WKC-16, not a WKC-16-B, dated March 3, 2000, with Dr. Watchmaker's typed name but not his signature. Attached to the WKC-16 are Dr. Watchmaker's office notes. The WKC-16 indicates the healing period had ended and applicant could return to unrestricted work as of February 10, 2000. The documents were sent via fax from applicant's attorney to the ALJ on August 18, 2000.

Applicant submitted as Exhibit C, an EMG report from an EMG conducted on August 21, 2000. Applicant submitted as Exhibit D, a WC-3 medical treatment statement by cover letter dated August 18, 2000. The document was sent via fax from the applicant's attorney to the ALJ on August 21, 2000.

Applicant submitted as Exhibit E, treatment notes from The Milwaukee Hand Center, i.e. Dr. Watchmaker's treatment notes, certified by the custodian of the medical records.

The hearing in this case was held on August 22, 2000. Under Wis. Stat. § 102.17 (1)(d) and Wis. Admin. Code § DWD 80.22, the department may not admit into evidence a certified report of a practitioner or other expert or a record of a hospital not filed with the department and all parties at least 15 days before the hearing, unless good cause for the failure is shown. The statutes and rules do not require 15 days advance notice for simple medical records as they do for a practitioner's report containing an expert medical opinion. Hospital and physician records must be certified by a custodian of the record to be admissible under Wis. Stat. § 102.17 (1)(d), but the 15-day rule applies to certified reports rendering expert opinions, not records of treatment.

In this case the only certified medical records introduced at the hearing were contained in Exhibit E. The commission has previously found that treatment/office notes alone, which are certified by the custodian but not the practitioner, are not prima facie evidence of diagnosis or cause and extent of disability. See Lange v. Federal Express, WC Claim No. 94026706 (LIRC Mar. 20, 1996). Exhibits A, B, and C lack probative information to establish causation, are not certified, and are hearsay. Exhibit D does not establish necessity and reasonableness of the medical expenses contained therein. Dr. Watchmaker did not submit a signed WKC-16-B.

Case law and the department's rules do permit the introduction of hearsay testimony with probative value. Wis. Admin. Code § DWD 80.12 (1)(c). However, it does not obviate the need for certified medical evidence or in-person testimony establishing facts necessary to support the claim being made. Applicant has failed to meet her burden of proof. There are no reports certified by Dr. Watchman to establish causation, disability, need for medical expenses, or to justify an interlocutory order.

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed April 30, 2001
donovja . wrr : 132 : 1 :  ND § 8.24

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The commission does not reverse the ALJ's order based on credibility but because it finds the applicant's documentation insufficient to meet her burden of proof.

cc: Attorney Thomas M. Domer
Attorney James P. Reardon

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