H JAMES KAPELKE, Applicant

NORTH MEADOW HOMES ASSOCIATION, Employer

TRAVELERS CASUALTY & SURETY COMPANY, Insurer

In March 1999, the applicant filed an application for hearing seeking compensation for medical expense. On October 30, 2000, a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development in this matter. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded a compensable injury on January 18, 1995, resulting in permanent partial disability. In dispute before the ALJ was the compensability of certain items claimed as medical expenses under Wis. Stat. § 102.42.

After closing the record on December 15, 2000, the ALJ issued his findings of fact and order on March 6, 2001. The respondent filed a timely petition for review.

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:

The applicant hurt his back at work in 1985; he underwent two back surgeries; he is now permanently and totally disabled. His doctor, Mehran Heydarpour, M.D., testified that he has a "failed back" following the two surgeries. The doctor testified the applicant had trouble going up and down steps, and pain with ambulating. The applicant himself testified he has constant pain and numbness in his legs, and trouble walking.

In May 1996, the applicant bought a used HiTop Chevy Van (model year 1989) with a hydraulic lift. The van-with-lift as a unit cost $12,628.65. According to exhibits D and E, that price included $7,495 for a hydraulic lift, a raised door kit, and securement, all modifications to accommodate the lift. However, the $7,495 figure is based on an August 6, 1999, quotation from Caravan's Inc. estimating what it would cost to install a presumably new hydraulic lift on the model of the applicant's van. See exhibit H to the applicant's May 16, 2001, brief.

The applicant also eventually bought a motorized scooter in 1997 and an electric wheelchair for his house in 1998. See exhibit E. The applicant testified- apparently with reference to both the scooter and van-with-lift-that his family doctor, James Davis, D.O., thought it would be a good idea to buy them.

Dr. Davis's treatment notes in exhibit E include a September 15, 1997, prescription for a motorized cart for chronic intractable back pain. The contemporaneous treatment notes themselves do not mention the van or hydraulic lift. However, Dr. Davis does state in a document attached to the October 12, 2000, practitioner's report on form WKC-16-B (exhibit E) that the expenditures for items including a motorized scooter, a HiTop Chevy Van w/Hydraulic Lift, and an electric wheelchair, were reasonable and necessary to cure and relieve the effects of the work injury. He states also that:

"I . . . have recommended these expenditures."

Exhibit E.

The treating surgeon, Michael Majors, M.D., professed to be very surprised the applicant felt he needs a scooter and a van with a lift. Dr. Majors opined that those items seem well beyond what would be necessary treatment. He was uncomfortable about approving the expenses over the telephone before talking to the applicant. He also noted he had never ordered "anything like this" for patients in the past. Exhibit 4.

Nonetheless, Dr. Heydarpour testified that the applicant needs a motorized scooter to move around in activities like grocery shopping. He testified that having the hydraulic lift would lessen the applicant's symptoms. The doctor testified, too, that the applicant needed a van to be able to get the scooter in and out, that is, to transport the scooter.

As noted above, the dispute before the ALJ was whether certain items of the claimed medical expenses were reasonable and necessary to cure and relieve the effects of the work injury. The specific items at issue before the ALJ were the van with hydraulic lift, the motorized scooter, the electric wheelchair, a ramp to the applicant's house built by volunteer labor, the cost of repairs to motorized scooter and hydraulic lift, and reimbursement for prescription expense largely paid by another insurer. By the date of the hearing, the workers compensation insurer had paid prescription expense, albeit with grave reservations.

The ALJ found the respondent liable for all of these expenses, except the ramp (for which the applicant did not actually incur any expense) and the electric wheelchair (which was duplicative of the scooter and which Dr. Heydarpour testified the applicant did not need.) On appeal, the only item of expense now challenged by the respondent is the cost of the van as an item separate from the hydraulic lift. The respondent asserts on appeal that it is liable only for modifications to the van made necessary by the work injury, not for the expense of the van itself. The respondent also asserts that it should not even have to pay for the lift, as the applicant has not proven what that cost was.

For his part, the applicant asserts that he needed the van itself to be able to transport the scooter. This makes common sense and, indeed, Dr. Heydarpour testified to that effect to the extent expert testimony is necessary. The applicant also asserts that since he followed the recommendations of Dr. Davis in buying the van-with-lift, it is automatically compensable under the Spencer and Honthaners holdings. (1)

However, the commission concludes that the respondent is not liable for the cost of the van itself (as an item separate from the hydraulic lift). Primarily, the purpose of the van is as a motor vehicle for everyday transportation. In a similar case involving a paraplegic worker, the commission previously held:

"[Flynn] sustained T12 paraplegia in a conceded work injury occurring on September 11, 1987. He is confined to a wheelchair and is permanently totally disabled. Three items of claimed medical expense are at issue: (1) a new van modified to accommodate [Flynn's] handicap; (2) a deck and ramp for exit from the rear of [Flynn's] house; and (3) electrical work performed on the [Flynn's] house to bring it up to municipal code.

"[Flynn] owned a 1983 Chevrolet pickup truck when he was injured. The insurer paid $500 for the installation of hand controls in this truck, but the applicant decided to sell it and purchase a van. He indicated that the truck was not practical, noted that it was difficult to use in hauling groceries, and also noted that several times he slipped and fell back into his wheelchair while attempting to get into the truck. Dr. Sperling testified that the truck was not suited to [Flynn], but conceded that the applicant was able to get in and out of it. He also conceded that a motor vehicle is not a medical necessity. The van is much more convenient for the applicant because it has a lift at the rear and which enables him to stay in his wheelchair when entering the vehicle. [Flynn] also uses the van to transport high school students as part of his involvement with a youth ministry. He is working towards a Master's Degree in Theology.

"One of the provisions of section 102.42 (1), Stats., is for medical supplies, but a motor vehicle is not a medical supply. Modifications of a motor vehicle to accommodate a work-related handicap do constitute the provision of medical supplies. Therefore, [Flynn] is entitled to reimbursement for the cost of the van lift ($3,295), the cost of necessary driver's seat modifications ($1,095), and the cost of a power door opener ($715).. [Emphasis supplied.]"

Flynn v. Allen Roofing & Construction, WC case no. 87048518 (LIRC, June 13, 1990).

The commission acknowledges in this case that Dr. Heydarpour testified that the applicant needed a van to carry his motorized scooter. However, Flynn involved the same type of observation that a van was convenient for Mr. Flynn because he could stay in his wheelchair when entering the vehicle. Nonetheless, the commission in Flynn denied the expense for the van itself. Moreover, the applicant in this case here needed a vehicle of some sort for basic transportation; at least, there is no testimony that he now medically requires a motor vehicle (that is, a car, truck or van) where he did not before.

Nor does Honthaners or Spencer require a different result. First, those cases only apply to medical expense incurred to cure and relieve the effect of the work injury, and a van -- to the extent it provides basic transportation -- is not such an expense. Second, while the applicant testified that he bought the van-with-lift because Dr. Davis thought it would be a good idea, the doctor's contemporaneous notes do not establish that he recommended the purchase of a van or a hydraulic lift before those purchases were made. (2)   The only item mentioned in the notes was a September 15, 1997, prescription for a motorized scooter, and this would have been a year after the van was purchased.

Dr. Davis does state in a document attached to the practitioner's report at exhibit E that he found the expenditure for the HiTop Chevy Van w/Hydraulic Lift to be reasonable and necessary, and that "I . . . have recommended [the expenditure.]" However, the commission does not read that statement, made on October 12, 2000, to literally mean that the doctor recommended the expenditure for the van itself before it was made.

The remaining question is the amount of the expense of the hydraulic lift as an item separate from the 1989 van. As noted above, the applicant has provided an estimate of the cost in 1999 of installing a new lift on a 1989 van, $7,495. The respondent points out, accurately, that the applicant in fact has a used lift, and that it came with the van when the applicant bought the vehicle. Neither the respondent nor the applicant has provided evidence of what the used van would have cost the applicant when he bought it in 1996 had it not had a hydraulic lift.

The commission realizes, of course, that the applicant has the burden of proving the amount of his medical expenses. However, the applicant here has provided at least a rough estimate of the cost of the lift, and the employer has provided no figure in rebuttal. Due to the negotiation normally involved in buying a used car, any figure offered for what the applicant could have paid for an identical van without a lift would have been rather speculative anyway. Finally, the commission notes that the applicant has commendably attempted to hold down his costs by buying used appliances when possible. Under these facts, the commission does not believe it unreasonable to require the respondent to pay $7,495 as the expense of the hydraulic lift.

Again, except for the cost of the van and the hydraulic lift, the medical expenses awarded by the ALJ were not in dispute on appeal. The applicant therefore incurred reasonable and necessary expenses to cure and relieve the effects of the work injury, as follows: $11,652.39, all of which has now been paid by the insurer; $7,495 in expenses to modify the applicant's van to install a hydraulic lift, which the applicant paid out of pocket; $2,300 for a motorized scooter, which the applicant paid out of pocket; $48.00 for repairs to the scooter, which the applicant paid out of pocket; $214 for a battery for the scooter, which the applicant paid out of pocket; and $31.68 for a repair to the hydraulic lift, which the applicant paid out of pocket. In sum, the applicant incurred $10,088.68 out of pocket in reasonable and necessary medical expenses, and he is entitled to reimbursement for that amount.

However, as the ALJ explained, the electric wheelchair is essentially a duplicative expense, and further Dr. Heydarpour opined it was not necessary. Consequently, it shall not be ordered paid. Further, as the ALJ also pointed out, the ramp to the applicant's house was built without expense to the applicant; no compensation may be awarded for it either.

The applicant agreed to an attorney's fee, which is set under Wis. Stat. § 102.26 and Wis. Adm. Code § DWD 80.43, at twenty percent of the $10,088.68 in out-of-pocket expenses recovered, or $2,017.74. This leaves an amount due the applicant of $8,070.94.

At the hearing, the respondent established that the insurer had overpaid disability compensation to the applicant by $9,432.51 as a result of the social security reverse offset. During its review, on June 25, 2001, the commission received a Supplementary Report on form WC-13 from the insurer, showing that, by virtue of additional amounts withheld to June 14, 2001, the amount of the overpayment has been reduced to $8,632.51.

As the ALJ observed, normally a workers compensation insurer may not offset an overpayment in disability compensation against amounts owed to medical providers and non-industrial insurers as reimbursement of medical expenses. According to the ALJ, the department views such an offset as a prohibited assignment of benefits.

However, as the ALJ also observed, the applicant paid the expenses compensated under this order from his own funds; given the fungible nature of money, it could be construed that the disability compensation overpaid was used to make these out-of- pocket purchases. In addition, allowing an offset of the overpaid compensation, which is a current debt, against the award seems particularly appropriate in that the insurer is currently recovering the overpayment by offsetting against the accruing permanent disability compensation.

In any event, after offsetting the outstanding overpayment in disability compensation as of June 14, 2001 ($8,632.51) against the applicant's share of the out-of-pocket medical expense ($8,070.94), no amount is currently due the applicant but rather the overpayment is reduced to $561.57 as of June 14, 2001. The applicant, of course, is entitled to a credit for any additional amounts recouped by the respondents after June 14, 2001.

Because the applicant is permanently and totally disabled, this order shall be left interlocutory on all issues.

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 the applicant's attorney, Hans Buehler, Two thousand seventeen dollars and seventy-four cents ($2,017.74) in attorney fees. No amount is due under this order to the applicant, subject to a credit for any amounts recouped by the insurer after June 14, 2001, and applied toward the overpayment described above.

Jurisdiction is reserved for further findings, orders and awards as are appropriate.

Dated and mailed July 25, 2001
kapelke . wrr : 101 : 3  ND § 5.46

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Because the question of the compensability of the van as a medical expense involves a legal issue, not one of witness credibility, no credibility conference was held with the presiding ALJ.

cc: 
Attorney Hans A. Buehler
Attorney Catherine A. Thomas

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(1)( Back ) Spencer v. ILHR Department, 55 Wis. 2d 525 (1972); Honthaners Restaurants Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234. Spencer 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.

(2)( Back ) The commission has previously held that in order for the Spencer/Honthaners holding to apply, there must be some type of advance prescription or recommendation justifying the good faith reliance upon which the holdings in those decisions are based. Thus, in Widiker v. Hoffman Construction Co., WC Claim No. 1993061724 (LIRC, December 29, 1999), the commission stated: "Further, . . .  if an inured worker undergoes treatment in good faith reliance on a treating doctor's opinion, the treatment is compensable even if the department or commission credits the opinion of the insurer's doctor that that treatment was not necessary. Spencer, supra, at 55 Wis. 2d 525, 531-32 (1972). However, Spencer by its terms applies to situations where an injured worker undergoes treatment in good faith reliance on a medical expert's advice, such as where the treatment is prescribed or recommended in advance, or rendered by the medical expert himself or herself. Where the opinion regarding the necessity of treatment comes only after the fact--that is, after the treatment was rendered--the injured worker's decision to treat could not be based on good faith reliance upon advice from a medical expert." 

uploaded 2001/07/30