RICHARD C JACOBS, Applicant

EWALD COLLISION REPAIR & PAINT CENTER, Employer

UNITED WISCONSIN, Insurer

The employer and its insurer (collectively, the respondent) were previously found to be liable for applicant's December 19, 1995, work injury. Compensation for certain periods of temporary disability, permanent partial disability, and medical expense has previously been paid by order or by concession. The applicant now claims additional compensation for temporary disability. The respondent disputes the claim.

A hearing was held before administrative law judge (ALJ) Thomas R. Jones of the Worker's Compensation Division of the Department of Workforce Development on August 16, 2000, and the record was closed on October 2, 2000. Thereafter, ALJ Jones issued his decision on January 8, 2001. Both parties submitted timely petitions for commission review.

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

The applicant sustained a work injury on December 19, 1995, while working for the employer, an automobile body repair shop. At the time of his injury, the applicant was trying to move the front half of a cube van, when the wheels of the dolly the van sat on became stuck. The applicant treated, and later found employment with another employer. He experienced sharp back pain while working for another employer in March 1997. He eventually underwent a fusion and laminectomy surgery at the hands of Stephen Delahunt, M.D., in October 1997.

This case has been the subject of a previous hearing and decisions by an ALJ and this commission. The initial dispute was the date of injury determining which respondent was liable for the consequences of the injury, including disability and medical expense related to Dr. Delahunt's October 1997 fusion surgery. By interlocutory order dated September 3, 1998, ALJ Randall Kaiser held the named employer here, Ewald Collision Repair & Paint Center (Ewald), liable and dismissed the applicant's claim against a subsequent employer. ALJ Kaiser ordered Ewald's insurer to pay temporary disability to the date of the first hearing (June 6, 1998) and medical expenses incurred to that date. The commission affirmed ALJ Kaiser's decision by order dated April 30, 1999.

While the commission's decision on the first hearing was still pending, treating surgeon Delahunt opined on October 15, 1998, that the applicant had reached an end of healing from the October 1997 fusion surgery. At the time, the applicant complained of pain, but he had good motion in the lumbar spine with negative tension signs. Dr. Delahunt noted that an x-ray showed no motion at the fusion site. While the doctor could not visualize abundant posterolateral fusion mass, he believed the fusion was solid. Accordingly, Dr. Delahunt set permanent work restrictions including a 40-pound lifting limit, and rated permanent partial disability at 15 percent. However, Dr. Delahunt referred the applicant to a pain clinic for treatment of depression.

Because the employers were still disputing liability and the applicant's treatment expense was not being paid, the applicant did not immediately begin the pain clinic treatment. In January 1999, Dr. Delahunt noted the applicant had been looking for a job, but was not successful. The applicant in fact did work at Affiliated Products from February 1 to April 12, 1999, but had to discontinue working due to pain.

The independent medical examiner retained by the respondent, Michael Collopy, M.D., saw the applicant, on March 12, 1999. At that point, the applicant still had back pain, but overall felt improved since the fusion surgery done by Dr. Delahunt. Dr. Collopy concluded the applicant had reached a plateau from his 1995 low back injury, and continued to have an overall 15 percent permanent partial disability (7.5 percent due to the work injury). He thought, in the long run, the applicant would be better off trying to find work in a field that does not require bending and lifting. Exhibit 3.

In early May 1999, the applicant also underwent a psychiatric evaluation as part of his application for social security benefits. The examining doctor, Louis F. Cooper, M.D., found the applicant's ability to work vastly reduced, and concluded that he seemed almost unemployable. However, the doctor did note that while his depression would interfere with his performance, if he could find a job, working at a job he could do and that he liked, might lessen his depression. See Exhibit Q, report of Cooper dated May 8, 1999, page 7. In other words, while Dr. Cooper held out only marginal hope that the applicant would return to profitable employment, he did not opine that the applicant should not work and in fact indicated work might improve his condition.

On May 12, 1999, after the April 1999 LIRC order deciding that Ewald was the liable employer, the applicant saw S. Vasudevan, M.D., at the Center for Pain and Work Rehabilitation in Milwaukee. Dr. Vasudevan noted constant back and left leg pain since an injury in December 1995. He recommended a pain rehabilitation program and education about his condition.

The applicant then began treating with Mary Tiller, D.C., M.D., at a pain clinic in Hartford on May 19, 1999. Her notes begin at Exhibit T. She diagnosed chronic low back pain, post L5-S1 fusion and laminectomy, and myofascial pain. Dr. Tiller prescribed six sessions of physical therapy. See Exhibit O. She also prescribed various medications for pain control. The medications she has prescribed over the course of her treatment include Methadone, Percocet, Oxycodone, and Neurontin.

Then, on August 23, 1999, due to his chronic back pain, the applicant's family doctor, L.A. Gill, M.D., took the applicant off all work for six months. Exhibit S. On September 7, 1999, the applicant reported to Dr. Tiller that the present pain control was not enough to allow him to get a job. Dr. Tiller also noted that the applicant had recently been taken off work by his family doctor. Noting new complaints of arm pain and dizziness, Dr. Tiller ordered a cervical x-ray.

On September 30, 1999, Dr. Tiller discussed with the applicant treatment by a psychologist specializing in pain management. Thereafter, the applicant began treating with a colleague of Dr. Tiller's, Richard Gillespie, Ph.D., on October 7, 1997. Dr. Gillespie opined the applicant was experiencing a depressive syndrome, secondary to chronic pain and functional limitations within the context of a long and dysfunctional family history, involving a great deal of aggression and violence. Exhibit T. Dr. Gillespie also noted the alternative possibilities that the applicant was exhibiting symptoms of a major depressive disorder or an adjustment reaction with depressed mood secondary to chronic pain. Dr. Gillespie's treatment recommendation was to review the applicant's medications, and to provide supportive therapy. Indeed, the doctor provided such therapy thereafter.

On October 1, 1999, IME Collopy wrote a note indicating he had reviewed the pain clinic records, and noted that both Dr. Tiller and Dr. Vasudevan opined the applicant "had a significant psychological profile riding his symptoms." However, he did not think the applicant should be regarded as in a period of new disability, but had a problem he could cope with. He saw no real change since March 17, 1999, when he had last examined the applicant. Exhibit 4.

On October 14, 1999, the applicant returned to Dr. Delahunt, complaining of disabling back pain. Dr. Delahunt noted the drugs prescribed by Dr. Tiller and the ongoing psychological treatment. He took x-rays that showed a paucity of posterolateral fusion mass at L5-S1, but no fracture or evidence of loosening of the fusion hardware.

Dr. Delahunt suspected a nonunion at the fusion site, likely related to the applicant's use of nicotine. The doctor went on to recommend a removal of the hardware and exploration of the fusion site to see if there really was a nonunion.

The applicant then returned to Dr. Tiller on October 27, 1999, and discussed the possibility of a second procedure, along with possible complications and side effects. The applicant also saw Dr. Gillespie that same day, and he noted the applicant was depressed, angry and agitated, and unhappy about the implications (that it would be difficult, unnecessary, or unsuccessful) of the proposed second surgery.

In November 1999, Dr. Gillespie wrote a practitioner's report on form WKC-16-B which referred to the 1995 injury, the subsequent fusion surgery in 1997, and the applicant's chronic pain and severe functional limitations thereafter. The doctor went on to note that the physical symptoms were accompanied by psychological and emotional distress, including depression, frustration, and sleep disturbance. The doctor noted "his inability to work and the pain and physical limitations he was experiencing cause him to be despondent and irritable." Dr. Gillespie opined the applicant "continued to be disabled" and that his "psychological and physical limitations prevent return to work." He marked the "direct causation" box on the form report "yes," noting additionally that "depression is outcome of injury and residual limitation." He opined the applicant needed continued psychotherapy, but could not determine whether there would be permanent partial disability from the psychological condition, noting that it was secondary to the physical problems and that depression exacerbated the physical problems.

The applicant's continuing treatment with Drs. Tiller and Gillespie is documented in Exhibit N. In addition, it appears that the applicant followed several times with a psychiatrist, Dr. Knajdl, a pain clinic colleague of Drs. Tiller and Gillespie. His notes do not appear to be in the file, though they are summarized in a report from an independent medical examiner. Exhibit 6. Basically, Dr. Knajdl noted depressive symptoms since the back injury (Exhibit 6, page 7, reference "11/18/99") and diagnosed "an adjustment disorder with ongoing stressors and the other large percentage of his anxiety secondary to pain which would be anxiety disorder secondary to general medical condition." (Exhibit 6, page 8, reference "5/11/00".)

On March 23, 2000, IME Collopy, after examining some x-rays, could not determine whether the applicant had a nonunion at the fusion site. Regarding further surgery, the doctor opined:

"Theoretically, the best way to tell if the patient has a nonunion is to open it and explore it. At this time, he would take out the hardware, explore the fusion mass and decide whether there is a fusion or not. If there is a fusion, you are going to add more bone and probably again add new hardware. If it is fused solid and the hardware removed, any fractures in the hardware itself should be alleviated. At any rate, it is another operation. If the patient is sincere in his wish for this exploration, then one proceeds. I do not have any other information to go on. There is no MRI, CAT scan, bone scan, etc., which may be difficult due to the hardware inside anyway."

Exhibit 5.

Finally, on July 10, 2000, the applicant returned to Dr. Delahunt, complaining of intractable low back pain. Dr. Delahunt ordered x-rays, which showed some lucency in the screws at L5-S1 though no hard evidence of a nonunion. Dr. Delahunt diagnosed what appeared to be pseudoarthrosis (false fusion) of the L5-S1 motion segment, in all likelihood due to cigarette smoking. He recommended removal of the hardware, and exploration of the nonunion with revision of the pseudoarthrosis. Exhibit H. Relying on an earlier representation by the insurer that it would abide by Dr. Delahunt's treatment recommendation (Exhibit Q), the applicant scheduled this procedure for August 22, 2000.

In July 2000, Mark Biehl, M.D., examined the applicant, for an independent psychiatric evaluation. See Exhibit 6. Dr. Biehl, M.D., agreed that the applicant's work injury was at least a factor in his psychological disability, (1) that the applicant had not yet reached an end of healing for psychological disability, and that the applicant was able to engage in rehabilitative efforts and return to work "at this time."

On August 31, 2000, shortly before the second hearing, Dr. Tiller also wrote a practitioner's report on form WKC-16-B. Exhibit G. She noted her treatment of the applicant from May 19, 1999 to July 20, 2000. She noted the beginning of pain at work when "half a truck fell on him," and that the pain has become so severe with continued work that he cannot now work. Her diagnosis is chronic low back pain, bilateral lumbar radiculopathy, post L5-S1 fusion, depressed mood secondary to chronic pain, and myofascial pain syndrome. She opined the work injury directly caused these disabling conditions, declined to rate permanent disability in deference to a functional capacity evaluation, and noted the future surgery planned for August 22, 2000. In response to the date the applicant could return to work subject to permanent or temporary restrictions, Dr. Tiller wrote "N/A."

At the hearing, the respondent introduced a surveillance videotape (Exhibit 8.) The applicant is shown bending over a car to work on the engine, reaching in, twisting and extending himself to the point he lifts one foot off the ground while working on the engine. He is shown squatting to work on the car.

The respondent also elicited testimony from its medical expert, Dr. Collopy. He opines that from his viewing of the surveillance videotape: (a) the applicant does not look like the applicant had backache, and (b) the applicant does not need the second surgery suggested by Dr. Delahunt. However, Dr. Collopy did not testify that the applicant was faking his complaints, based on his viewing of the videotape. Dr. Collopy also did not expressly state that Dr. Delahunt was wrong to recommend surgery; rather, Dr. Collopy's testimony seems to be that he simply has a different opinion.

IME Collopy also offered testimony on some collateral points. First, he continued to opine (as he did in the March 23, 2000 letter) that the only way to be sure the applicant had a failed fusion was to do a surgery. Transcript, page 71. Second, he testified that he would keep a worker who needed a re-fusion on temporary disability. Transcript, page 72.

At the conclusion of the second hearing, ALJ Jones left the record open to get: (a) a report from Dr. Delahunt after reviewing the surveillance videotape, and (b) a report from Dr. Collopy after reviewing a relatively recent x-ray of the applicant's spine. IME Collopy's report, dated September 5, 2000, came in under cover of Attorney Berger's September 19, 2000, letter. Dr. Delahunt's report dated September 18, 2000, came in under cover of Attorney Weir's letter dated September 29, 2000. These posthearing reports are clearly part of the record. See transcript, page 89; ALJ decision, page 2.

Even after watching the surveillance videotape, Dr. Delahunt continued to recommend surgery. Moreover, he noted that the applicant requires long term narcotic medication for his pain, which provides about 35 percent relief. Given the medication and the relief it provides, Dr. Delahunt opined, the applicant would be able to engage in the activities shown in the tape.

In support of his conclusion that the applicant needs the additional surgery (and that the applicant is in a period of temporary disability) due to the failed fusion, Dr. Delahunt pointed to lucency about the L5-S1 screws. Dr. Delahunt opined the "lucency" was due to motion at the screws, which in turn was due to a failed fusion. Dr. Delahunt also pointed to a paucity of bone at the fusion site.

Dr. Collopy opined that he could not discern what pain factors in the spine caused the applicant's problem. He reported that he did not see a lot of bone in the lateral ridges. However, he also opined that the hardware was not loose, that it had done its job, and that the bone graft and fusion, or hardware, was holding the 37 degree angle in the applicant's spine.

The first issue is the applicant's claim for additional temporary disability. The asserted basis for continuing temporary disability is two-fold: first, based on a psychological disability from the applicant's depression following the work injury; and second, based on a renewed physical disability until the applicant undergoes the second surgery recommended by Dr. Delahunt. The respondent's defense was that the applicant plateaued in October 1998, and never went into a renewed healing period after that date.

In general, temporary disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Adm. Code § DWD 80.47. The "healing period" is the period prior to the time when the injured worker's condition becomes stationary, Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932), and ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

An injured worker ordinarily must be submitting to treatment and convalescing during his healing period. In Larsen, for example, the injured worker's doctor concluded that the worker's condition had stabilized, rated permanent disability, and released the applicant from treatment. Many months later, increased symptoms made surgery necessary. The court held that the applicant was not entitled to temporary disability during the 18-month hiatus in treatment. Larsen, supra, at 9 Wis. 2d 389-93. (2)

The commission does not read Dr. Tiller's practitioner's report at Exhibit G to opine the applicant has been temporarily disabled since October 1998. In that month, Dr. Delahunt released the applicant with permanent restrictions. Dr. Delahunt noted, with approval, in January 1999 that the applicant was looking for work. The applicant was in fact able to work from February 1 to mid-April 1999. Further, while Dr. Cooper's May 1999 note indicated it was unlikely he could find work, the doctor did not report he could not or should not work. Nor did any doctor, until family doctor Gill took the applicant off work on August 23, 1999.

That date, then, would be the earliest date for temporary disability under the facts of this case. Dr. Tiller's practitioner's report does not retroactively justify temporary disability or continued healing back to when she began treating the applicant in May 1999, in the absence of any contemporaneous mention of temporary disability or a renewed or continued healing period in her treatment notes. Nor can the commission find a continuous period of temporary disability stretching back to October 1998, based on psychological disability, where, as here, Dr. Tiller did not even refer the applicant to psychologist Gillespie until September 1999.

The commission is aware that Dr. Collopy opined on October 1, 1999, that the applicant should not be regarded as in a period of new disability, but had a problem he could cope with. Exhibit 4. However, the commission believes that by August 23, 1999, the applicant was in a period of renewed disability, and that his condition was qualitatively different than it had been earlier when he was released to work with restrictions. By August 23, 1999, the applicant could no longer work, even with pain medication, so the commission must reject Dr. Collopy's opinion that the applicant was not in a period of renewed temporary disability on a factual basis.

The commission concludes that the applicant remained in a renewed healing period from August 23, 1999 to September 18, 1999, the date of the last report by Dr. Delahunt submitted after the hearing. IME psychologist Biehl opined the applicant continues to be in a healing period from his psychological injury, and stops short of suggesting an unrestricted return to work. Thus, even apart from the issue of whether the re-fusion surgery is necessary, continuing temporary disability is supported on a psychological basis by the report of the respondent's independent medical examiner. The commission also concludes that, based on the credible opinion of Dr. Delahunt, the applicant's lumbar spine condition has not yet reached the point where there has occurred all of the improvement that is likely to occur, as a result of treatment and convalescence.

The commission therefore finds that the applicant is entitled to temporary total disability compensation from August 23, 1999, to September 18, 2000, a period of 56 weeks. Given the social security reverse offset under Wis. Stat. § 102.44(5), the applicant is entitled to $272.23 per week, and his attorney is entitled to $54.45 per week, during the period of temporary disability. The applicant's total entitlement is $15,244.88 and the amount due the applicant's attorney is $3,049.20 in fees and $238.06 in costs. (3)   However, the amounts awarded are subject to an overpayment of $159.68, of which 80 percent ($127.74) shall be deducted from the applicant's award, and 20 percent ($31.94) shall be deducted from the attorney fee. In addition, the applicant's entitlement is subject to a deduction for child support of $4,612.48. This leaves an amount due the applicant in disability compensation within 30 days of $10,504.66, and the sum due his attorney within 30 days of $3,017.26 in fees and $238.06 in costs.

The next issue is the respondent's liability for medical treatment expense. The respondent's argument that the applicant's treatment to the date of hearing was not obtained in good faith, and that the only reason the applicant is considering the surgery proposed by Dr. Delahunt is a bad faith attempt to prolong or increase disability benefits is significant. Essentially, the respondent is acknowledging the effect of the holding in Spencer v. DILHR  (4)  that the expenses of treatment undertaken in good faith on a doctor's advice remain compensable even if the commission or an ALJ may find the proposed treatment unreasonable based on another medical expert's opinion. Nor does this case pose the type of situation posited by the dissent in Honthaners Restaurants, (5)   where an injured worker completely recovers from a work injury, leaving no injury left to treat.

In this case, the commission concludes that the applicant's treatment to the date of the hearing was reasonable, and that the applicant did not undergo the treatment in bad faith. Dr. Biehl, the respondent's psychiatric independent medical examiner thought the pain clinic treatment was reasonable. Dr. Delahunt, after watching the tapes, refused to change his mind and opine that the surgery was not necessary. Further, Dr. Delahunt explained that the applicant's prescribed pain medication might account for the applicant's ability to bend and engage in the activity shown on the tape. IME Collopy stopped short of opining the applicant was malingering, or inappropriately seeking treatment to get medication or disability compensation.

Moreover, the respondent's assertion that the applicant is pursuing the re-fusion surgery only to increase his disability benefits is inconsistent with the October 1999 reports of Drs. Tiller and Gillespie, and that the applicant was initially quite disturbed at the prospect of additional surgery. Unless this concern was an elaborate act, the re-fusion was not a procedure the applicant sought out. And given the paucity of the bone at the L5-S1 site, there is objective evidence supporting Dr. Delahunt's conclusion it is necessary.

It may be, of course, that the applicant's October 1997 fusion did in fact result in bone union, or that a more stoic individual with the same symptoms would be back at work. But it is beyond dispute that the applicant has had a fusion surgery, that medical doctors who have personally examined him have continued to prescribe pain medication, and that even IME Collopy cannot rule out a failed bone union or fusion. (6)   Finally, the ALJ saw the applicant testify, and he found him credible regarding his complaints.

However, the commission and ALJs lack authority to issue orders specifically requiring payment of expenses not yet incurred, (7)   though the commission may approve findings that a proposed treatment is reasonable and necessary to cure a work injury where, as here, that specific issue has been litigated at a hearing. (8)    Thus, while the commission concludes that the course proposed by Dr. Delahunt is not unreasonable, and that the applicant is not pursuing it in bad faith, it cannot prospectively order payment for the proposed re-fusion surgery.

The applicant incurred the following reasonable and necessary expenses to cure and relieve the effects of his work injury: from Pain Care Consultants, $1,290, all of which is unpaid; from AMG ABHS (Aurora Health Care), $1,027, all of which is unpaid; from Advanced Health Care (West Bend Clinic), $70, all of which is unpaid; from WI Rehab Medicine Professionals, $363.50, all of which is unpaid; from St. Agnes Hospital (c/o Professional Collectors Corp.), $50, all of which is unpaid; from Dr. Robert Gillespie, $2,100, all of which is unpaid; from Anesthesia Associates, $198, all of which is unpaid; from Beaver Dam Community Hospital, $175.19, all of which is unpaid; from Spine Center of WI, $758.40, all of which is unpaid; from AMG Hartford, $280, of which $18.80 was paid by Title 19/Medicaid, $36.20 was adjusted from the bill, and $225 remains unpaid; from Extendicare Health Services (Progressive Rehab), $530, all of which remains unpaid; and from Shopko Pharmacy, $29.28, all of which was paid by the applicant. In addition, applicant incurred compensable medical mileage in the amount of $1,124.89.

Given the liability for temporary disability compensation, the possibility of additional permanent disability, and the probability of future medical expense, this order shall be left interlocutory on all issues, consistent with the prior orders of ALJ Kaiser and this commission.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To Waukesha County Child Support Office, c/o Corporation Counsel Office, 1320 Pewaukee Road, Waukesha WI 53118, in regard to case No. 93 PA197 (mother Stacie M. Sernrow), Four thousand six hundred twelve dollars and forty-eight cents ($4,612.48).

2. To the applicant, Richard C. Jacobs, Ten thousand five hundred four dollars and sixty-six cents ($10,504.66) in disability compensation.

3. To the applicant's attorney, David L. Weir, the sum of Three thousand seventeen dollars and twenty-six cents ($3,017.26) in fees and Two hundred thirty-eight dollars and six cents ($238.06) in costs.

4. To Pain Care Consultants, One thousand two hundred ninety dollars ($1,290) in medical treatment expense.

5. To AMG ABHS (Aurora Health Care), One thousand twenty-seven dollars ($1,027) in medical treatment expense.

6. To Advanced Health Care (West Bend Clinic), Seventy dollars ($70) in medical treatment expense.

7. To WI Rehab Medicine Professionals, Three hundred sixty-three dollars and fifty cents ($363.50) in medical treatment expense.

8. To St. Agnes Hospital (c/o Professional Collectors Corp.), Fifty dollars ($50) in medical treatment expense.

9. To Dr. Robert Gillespie, Two thousand one hundred dollars ($2,100) in medical treatment expense.

10. To Anesthesia Associates, One hundred ninety-eight dollars ($198) in medical treatment expense.

11. To Beaver Dam Community Hospital, One hundred seventy-five dollars and nineteen cents ($175.19) in medical treatment expense.

12. To Spine Center of WI, Seven hundred fifty-eight dollars and forty cents ($758.40) in medical treatment expense.

13. To AMG Hartford, Two hundred twenty-five dollars ($225) in medical treatment expense.

14. To Extendicare Health Services (Progressive Rehab), Five hundred thirty dollars ($530) in medical treatment expense.

15. To Title 19/Medicaid, Eighteen dollars and eighty cents ($18.80) as reimbursement of medical expense paid.

16. To the applicant, the sum of Twenty-nine dollars and twenty-eight cents ($29.28) in out-of-pocket prescription expense and One thousand one hundred twenty-four dollars and eighty-nine cents ($1,124.89) in medical mileage.

Jurisdiction is reserved for such future orders and awards as may be warranted, consistent with this decision.

Dated and mailed June 13, 2001
jacobsr . wrr : 101 : 8 ND § 5.46   § 5.50  § 8.17 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Both parties filed petitions for review. The respondent contends that there is no basis for any temporary total disability, and particularly not until October 14, 1999, when Dr. Delahunt first proposed surgery for the suspected nonunion. The respondent also argues that there is no need for the proposed surgery based on the opinion of IME Collopy, and reasserts that the applicant is only undergoing the additional surgery to make himself worse and qualify for permanent total disability. Finally, the respondent argues it was denied due process because the ALJ did not watch all of the tape at the hearing.

The applicant, for his part, requests payment of the medical expenses which the ALJ did not address. The applicant asserts the ALJ must have failed to pay the expense in error; the respondent contends the ALJ implicitly found the expenses were incurred in bad faith, or that there was no evidence they were incurred in good faith.

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. The ALJ found the applicant credible about his ongoing pain. The ALJ observed that it seemed unlikely the applicant would submit to another surgery unless his pain was real, and that the respondent's independent medical examiner, Dr. Collopy, opined that it would be necessary to perform surgery to determine if there was in fact a successful fusion or bone union. He informed the commission he believed the applicant had always had significant pain since October 1998 (when Dr. Delahunt opined he plateaued from the October 1997 surgery), and that his pain was now at the point where it was preoccupying. Consistent with these observations, the ALJ also informed the commission that he did not question whether the claimed medical expenses were incurred in good faith and that he did not finally deny them for that reason. Rather, the ALJ implied he did not order the expense paid to allow the insurer to challenge specific items of expense if they were not incurred to treat the work injury.

After reviewing the record, the commission did not see any indication that any specific items of the claimed expense were not incurred to treat the applicant's work injury. Consequently, it ordered them paid for the reasons set out above. The commission also addressed issue of the respondent's liability for temporary disability at length in its findings.

This leaves the respondent's complaint that it was denied due process because: (a) the ALJ did not watch the entire "highlight" videotape (Exhibit 8) at the hearing, and (b) the ALJ did not allow the respondent to submit into evidence the full unedited 3.5 hour version of the video surveillance.

Under the facts of this case, the commission cannot conclude that the respondent had the right to insist the highlight videotape be shown in its entirety during the hearing itself. In any event, the commission reviewed the videotape at Exhibit 8 in its entirety. More importantly, the medical experts also reviewed the videotape, and the commission carefully considered their opinions based on that review.

With respect to the ALJ's refusal to allow the entire unedited version of the tape into evidence, the commission also sees no due process violation. The person who did the videotape (Gary Staudacher) was allowed to testify and his full report is in the record. Moreover, the colloquy concerning the admission of the unedited version of the tape indicated that the only reason the respondent's attorney offered for introducing the unedited version of the tape at the hearing was for the commission's convenience and so that the applicant did not feel shortchanged. The transcript did not indicate that the respondent was concerned that the unedited version of the tapes contained probative evidence that was not on the highlight tape at Exhibit 8. Transcript, page 66.

cc: 
Attorney David L. Weir
Attorney Joseph Berger

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(1)( Back ) Although Dr. Biehl opines work was not the direct cause of the applicant's "current problems," he states: "[Treating doctor] Gillespie, in his evaluation dated 10/07/99, very nicely states that he believes Mr. Jacobs is an individual who is experiencing depression secondary to chronic pain and functional limitations, which `.occurs within a context of a long and dysfunctional family history involving a great deal of aggression and violence..'" Exhibit 6, page 12. The source of the applicant's chronic pain and functional limitations, of course, is the work injury.

(2)( Back ) However, the commission has recognized that the general rule requiring ongoing treatment may not apply where an employer denies liability for the work injury, and then points to the lack of treatment as establishing an endpoint of temporary disability. In such a case, it may not be reasonable to expect an injured worker to undergo treatment that he or she must pay for himself at the price of forfeiting the right to temporary disability. Carole Lee v. Famous Fixtures, WC Claim No. 96000857 (LIRC, July 2, 1997).

(3)( Back ) Given the social security reverse offset, fees and costs are not subtracted from the applicant's award, but rather paid from the reverse offset savings. See Wis. Stat. § 102.44(5) and "DILHR Memorandum on Social Security Reverse Offset," part I.7., page 9, at Neal & Danas, Worker's Compensation Handbook, appendix 4, page 47 (4th ed., 1997).

(4)( Back ) Spencer v. ILHR Department, 55 Wis. 2d 525 (1972), involved the compensability of expense (and resulting additional disability) related to a surgical knee replacement. Two doctors disagreed about whether the treatment was necessary. The commission's predecessor concluded it was not, and denied compensation. The supreme court held: "as matter of law ... where an employee [Spencer], in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of that treatment (increased period of temporary total disability, increased permanent partial disability, and the expense of the arthrodesis) because it finds the treatment was either unnecessary or unreasonable.... "As we see it, the conflict here is ... whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming the [doctor who recommended against the arthrodesis] was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting the arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. [Citation omitted; footnote added.]" Spencer, at 55 Wis. 2d 532. The court went on to set aside the commission's denial of the medical expense, and remanded the case for payment of the medical expense.

(5)( Back ) Honthaners Restaurants Inc. v. LIRC, 2000 WI App 273 27-28, 240 Wis. 2d 234, 252-53.

(6)( Back ) Even if the screws are solid in the July 20, 2000 x-ray, that does not necessarily mean that the bone has fused, nor does IME Collopy does say it does.

(7)( Back ) Levy v. Industrial Commission, 234 Wis. 670 (1940); Ramirez v. Grede Foundries, WC Claim No. 92- 042919 (LIRC, November 21, 1993); and Stidham v. Martin Transport, WC Claim No. 89-070496 (LIRC, February 28, 1992). See also: Kretschmer v. General Stamping, WC Claim No. 1997012273 and 1999034099 (LIRC, September 28, 1999).

(8)( Back ) David L. Beuthien v. Weekly Timber and Pulp, WC Claim No. 1985042866 (June 15, 1999); Stidham v. Martin Transport, WC Claim No. 89-070496 (LIRC, February 28, 1992). 

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