BEVERLY R COLLINS, Applicant

RHINELANDER FOODS INC, Employer

WAUSAU GENERAL INS CO, Insurer

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. Delete the fourth, fifth, and sixth sentences (the last three sentences) of the sixth paragraph of the ALJ's Findings of Fact, and substitute:

"Total compensation due is $29,341.00, all of which has accrued. The sum of $3,406 has been paid, leaving a balance of $25,935. A 20 percent attorney's fee is authorized and totals $5,187. The remainder, $20,748, shall be paid to the applicant within 30 days."

2. Delete the seventh paragraph of the ALJ's Findings of Fact, and substitute:

"The applicant claims she incurred certain reasonable and necessary medical expenses to cure and relieve the effects of her work injury. Accordingly, on October 10, 2000, the applicant filed with the department a `Statement of Medical Treatment Expenses,' with some attached itemizations, on form WKC-3 which was admitted into evidence at Exhibit F. Because the form was not filed at least 15 days before the hearing on October 23, 2000, (1)  the respondent was given 30 days from the date of hearing to file a response to the WKC-3 at Exhibit F. The respondent's response, attached to a letter from the respondent's attorney dated October 30, 2000, is incorporated into the record.

"The first item of medical expense claimed by the applicant in her WKC-3 at Exhibit F is $428.70 in charges from Dr. Kansarwala. The applicant represents that of this bill, $8.42 was paid by the applicant, and $33.68 was paid by Wausau General Insurance. (2)  However, Wis. Stat. § 102.17(8) requires claims for medical expenses to be supported by an itemized statement. Exhibit F contains no itemized statement with respect to charges by Dr. Kansarwala, so this claim must be denied.

"The second item claimed by the applicant is $8,990 in charges from Dr. Sikka, of which the applicant represents Wausau General Insurance paid $890 and $655 remains unpaid. Again, there is no itemized statement from Dr. Sikka himself. However, the applicant did attach an Explanation of Benefits form (EOB) from Wausau Insurance Companies, showing $435 paid to Northwoods Anesthesia Services SC for services rendered on June 19, 2000. See Exhibit F, page 14. The commission concludes that this charge is connected with the August 3, 2000, itemized billing submitted by Michael B. Lattos on behalf of Dr. Sikka which seeks $435 for payment for anesthesia services rendered at St. Mary's - Rhinelander on June 19, 2000, by Northwoods Anes. Service, S.C. Exhibit F, page 3. Indeed, the respondent's October 30, 2000 letter acknowledges a $435 charge from Northwoods Anesthesia Services, but states it was paid in full by Wausau Insurance Companies. Accordingly, it is concluded that the applicant incurred $435 from Northwoods Anesthesia Services in reasonable and necessary medical expenses to cure and relieve the effects of the work injury, which Wausau Insurance Companies paid in full.

"The third item claimed by the applicant is $8,174.10 in charges from Dr. Berry, of which the applicant represents she paid $147.54 and Wausau General Insurance paid $2,885.56. Again, there is no itemized statement from Dr. Berry himself, though the applicant does include three EOBs from Wausau Insurance Companies, showing a total of $1,802.56 billed by Northland Orthopedic Associates for Dr. Berry's services on April 28, June 6, June 16 and June 23, 2000. Exhibit F, pages 19, 20, and 21. Some of the charges in these EOBs correspond to an itemized bill from Northland Orthopedic Assoc. submitted by the applicant. See Exhibit F, last two pages (with a legible copy in the respondent's October 30, 2000, letter). This itemized bill shows $1,766.70 in charges related to the shoulder and arm for services provided on June 6, 19, and 23, 2000. The bill also shows payments of $274.80 by NCHHP Core Plan and $1,467.76 by the Wausau Insurance, leaving a balance of $24.14. Accordingly, it is concluded that the applicant incurred $1,766.70 from Northland Orthopedic Associates in reasonable and necessary medical expenses to cure and relieve the effects of the work injury, of which NCHHP Core Plan paid $274.80, Wausau Insurance Companies paid $1,476.76, and $24.14 remains outstanding. (3)

"The fourth item claimed by the applicant is $16,607.81 in charges from Saint Mary's Hospital, of which the applicant represents she paid $105.96 and Wausau General Insurance paid $8,696.05. Exhibit F contains four pages constituting three itemized bills from Sacred Heart-Saint Mary's Hospitals, Incorporated. The first bill (at page 5 of Exhibit F) documents $187.60 in charges for services rendered on June 6, 2000. The second (a 2-page bill at pages 6 and 7 of Exhibit F), documents $3,183.85 in charges for services rendered on June 19, 2000. The third bill (at page 18 of Exhibit F) is duplicative of the second bill and also shows charges of $3,183.85 for services rendered on June 19, 2000. Page 17 and 18 of Exhibit F are EOBs from Wausau Insurance Companies. Page 17 shows a payment of $178.22 on the $187.60 billed for the services performed on June 6, 2000, with remainder (or $9.38) being written off as a provided-negotiated discount. Pages 17 and 18 together show a payment of $3,024.70 on the $3,183.85 billed for services performed on June 19, 2000, with the remainder, or $159.15, written off as a provider-negotiated discount. Indeed, the respondent's October 30, 2000, letter represents that the bills for $187.60 and $3,183.85 from St. Mary's Hospital were paid in full by Wausau Insurance Companies. Accordingly, it is concluded that the applicant incurred a total of $3,371.45 from Sacred Heart-Saint Mary's Hospitals, Incorporated, in reasonable and necessary medical expense to cure and relieve the effects of the work injury, of which Wausau Insurance Companies paid $3,202.92, and $168.53 was written off.

"The fifth item claimed by the applicant is $143.22 in charges from Trig's Pharmacy, of which the applicant represents she paid $28.66 and Wausau General Insurance paid $144.55. However, the only bill from Trig's Pharmacy is at page 8 of Exhibit F, and it shows a charge on June 19, 2000, of which the insurance was billed $10.43 and the applicant co-paid $2.08. The respondent submitted an EOB from Wausau Insurance Companies showing a payment of $8.34. While the EOB shows other charges from Trig's Pharmacy on June 16, 2000, nothing in Exhibit F associates these with the work injury (and in any event they exceed the amount claimed by the applicant on the WKC-3 form itself at Exhibit F.) Accordingly, it is concluded that the applicant incurred $10.43 from Trig's Pharmacy in reasonable and necessary medical expenses to cure and relieve the effects of the work injury, of which Wausau Insurance Companies paid $8.34 and the applicant paid $2.08.

"The sixth item claimed by the applicant is $3,903.45 in charges from Rhinelander Physical Therapy, of which the applicant represents she paid $44.80, Wausau General Insurance paid $539.20, and $90.00 remains unpaid. In support of this claim, the applicant submits an itemized bill from Physical Therapy Center of Rhinelander (Exhibit F, page 10), showing charges totaling $450 for an initial evaluation on July 11, 2000, and appointments for therapeutic exercise on several occasions thereafter to August 4, 2000. The bill also shows payments ($91.20, $179.20, and $89.60) totaling $360 from Wausau, leaving a balance due of $90. The dates of treatment, or some of them, correspond to the dates in an EOB at page 22 of Exhibit F, which shows that Wausau Insurance Companies paid Physical Therapy Center $179.20 for services rendered by Jean Keurr, P.T. Indeed, based on that EOB, the respondent represents that Wausau Insurance Companies has paid only $179.20 on the $450 billed by Physical Therapy Center of Wausau. However, it must be concluded that Wausau Insurance Companies in fact made all of the payments shown by Physical Therapy Center of Rhinelander in its bill. Accordingly, it is concluded that the applicant incurred $450 from Physical Therapy Center of Rhinelander in reasonable and necessary medical expenses to cure and relieve the effects of the work injury, of which Wausau Insurance Companies has paid $360, and $90 remains outstanding.

"The seventh through eleventh items of claimed medical expense are for treatment with providers (Livengood, Parris, Webster, Durette, Grotenttais and Dejorgh) for whom no itemized bills were submitted in the documents included in Exhibit F. Accordingly, these claims must all be denied.

"Finally, the applicant claims $472.16 in medical mileage, which the respondent does not dispute. Accordingly, it shall be ordered paid."

3. Delete the first sentence of the eighth paragraph of the ALJ's Findings of Fact, and substitute:

"Because the applicant may require further treatment for her work injury or sustain additional disability in the future, this order shall be left interlocutory on all issues."

4. Delete the ALJ's interlocutory order and substitute the second and third paragraphs of the commission's interlocutory order set out below.

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

The findings and order of the administrative law judge, as modified, are affirmed.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Beverly Collins, Twenty thousand seven hundred forty-eight dollars ($20,748) in disability compensation.

2. To the applicant's attorney, John J. Hogan, Five thousand one hundred eighty seven dollars ($5,187) in attorney fees.

3. To Northland Orthopedic Associates, Twenty-four dollars and fourteen cents ($24.14) in medical treatment expense.

4. To Physical Therapy Center of Rhinelander, Ninety dollars ($90) in medical treatment expense.

5. To Wausau Insurance Companies, Five thousand four hundred eighty-three dollars and two cents ($5,483.02) as reimbursement of medical treatment expense.

6. To NCHHP Core Plan, Two hundred seventy-four dollars and eighty cents ($274.80) as reimbursement of medical treatment expense.

7. To the applicant, the sum of Two dollars and eight cents ($2.08) out-of-pocket medical expense and Four hundred seventy-two dollars and sixteen cents ($472.16) in medical mileage.

Jurisdiction is reserved for such further findings, orders and awards as may be warranted.

Dated and mailed August 7, 2001
collins . wmd : 101 : 1 ND § 5.46

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In August 2000, the department sent out a notice for hearing on the issues of primary compensation and medical expense in this case. The hearing was scheduled for Monday, October 23, 2000. On Tuesday, October 10, 2000, 13 days before the hearing, the applicant filed her WKC-3 Statement of Medical Treatment Expense. The employer and its insurer (collectively, the respondent) objected that the statement was untimely under Wisconsin Statute § 102.17(8) which requires that an itemized statement of medical expenses be submitted at least 15 days before the hearing.

The ALJ admitted the WKC-3 as hearing Exhibit F, nonetheless. However, he gave the respondent 30 days after the hearing to examine the WKC-3. Thereafter, the ALJ issued his findings and order, in which the ALJ stated he could not determine what to order paid to whom based on the WKC-3. He then deferred his decision on the issue of medical expense, and withheld payment of the fee of the applicant's attorney until a "usable form WKC-3" could be submitted.

The respondent appealed, challenging only the ALJ's findings dealing with medical expenses. The respondent does not contest the part of the ALJ's order that awards disability compensation. Shortly thereafter, by letter dated March 28, 2001, the applicant submitted a second WKC-3, as contemplated by the ALJ's decision.

The respondent argues, basically, that the applicant had her chance to prove her medical expense at the hearing and that she failed to do so because she provided an untimely, incomplete WKC-3. Asserting further that there must be an end to litigation, and that medical expense was after all an issue noticed for the first hearing, it seeks an order finally denying all medical expenses incurred to the date of the hearing, October 23, 2000.

The applicant, on the other hand, argues she has now submitted another, complete WKC-3 to support her claim, and that most of the claimed medical expense involves having one subsidiary of Wausau Insurance reimburse another subsidiary of Wausau Insurance. She contends she has met its burden of proof with her "clarified WKC-3."

The commission, however, does not find the applicant's arguments persuasive. As the commission sees it, the issue is not whether the applicant is able to prove her expenses given a second chance, but whether the second chance should be allowed at all. Second, the commission sees little difference, from a legal standpoint, whether the non-industrial insurer who has paid the medical expenses is related to the workers compensation insurer, if the applicant fails to prove her claim for expenses. Third, in addition to the reimbursement between the apparently-related Wausau Insurance subsidiaries, the applicant is claiming about $1,000 in unpaid and out-of-pocket medical treatment expense; this case does not pose simply a bookkeeping adjustment.

On the other hand, the commission has traditionally declined to interfere with the way ALJs control of their calendars by granting postponements or adjournments. Belknap v. Wisconsin Tissue Mills, WC Claim nos. 1989069201, 1998029690, 1995052832 (January 29, 1999), Neala Winchel v. Franciscan Sisters, WC Claim No. 93066564 (LIRC, October 31, 1996); and Cerny v. Stoughton Trailers, WC Claim No. 95017166 (LIRC, 1997);  Jenkins v. Modern Building Materials, WC Claim No. 1995-067462 (LIRC, May 4, 2001). (4)   Further, Wis. Stat. § 102.17(8) does not require dismissal of a medical expense claim if an applicant fails to file an itemized statement of medical expenses at least fifteen days before a hearing, but simply prevents an ALJ from acting on claimed expenses that are submitted too late. The statute does not prevent an ALJ from postponing or adjourning the issue of medical expense by allowing the late submission of the WKC-3 itemized statement, and giving the respondent 30 days to examine it.

After reviewing the WKC-3 submitted at the hearing, the respondent filed a detailed response on October 30, 2000, indicating what had been paid on those claimed expenses that were substantiated by itemized bills, and pointed out that other claimed expenses were unsubstantiated by itemized bills. However, as noted above, the ALJ did not award compensation for medical expenses, because he could not determine what expenses should be paid. In other words, the ALJ could not determine whether the itemized billings that were attached to the WKC-3 in Exhibit F actually supported the WKC-3 itself.

To rectify this situation, the ALJ gave applicant another chance to submit a WKC-3 that was supported by itemized billings. In other words, having given the applicant a "second chance" by exercising his discretion to permit the late submission of the first WKC-3, the ALJ went further and provided a "third chance" to permit submission of another, more complete WKC-3. The commission can understand the ALJ's motives in giving the applicant another opportunity to complete what is essentially a clerical task in obtaining itemizations to document the claimed medical expenses. However, the commission also concludes that the ALJ's decision in this regard goes beyond merely controlling his calendar.

In sum, the commission believes the applicant's claim for medical expenses became ripe for decision after the respondent submitted its response to the initial, but late, WKC-3 at Exhibit F. Accordingly, the commission has amended the ALJ's decision to make payments of medical expense based on Exhibit F. To the extent that the expenses claimed in the WKC-3 at Exhibit F are supported by itemized billings or statements, they have been paid. To the extent that the claimed expenses are unsupported, they have been denied. However, the commission declines to go further and affirmatively deny all expenses incurred prior to the date of the hearing, since that would involve denying claims that have not been made, and possibly could not yet have been made, as of the date of the hearing.

cc: 
Attorney James O. Moermond III
Attorney John J. Hogan

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(1)( Back ) Wis. Stat. § 102.17(8) provides: (8) Unless otherwise agreed to by all parties, an injured employee shall file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under s. 102.42 claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee's destination, number of trips, round trip mileage and meal and lodging expenses. The department may not admit into evidence any information relating to medical expenses and incidental compensation under s. 102.42 claimed by an injured employee if the injured employee failed to file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under s. 102.42 claimed by the injured employee, unless the department is satisfied that there is good cause for the failure to file and serve the itemized statement. The department's interpretative footnote states that advance submission of medical bills is required so the department and other parties know what is being claimed. See DWD, Worker's Compensation Act of Wisconsin, (WKC-1-P(R. 04/2000).

(2)( Back ) The applicant does not identify any unpaid balance on the WKC-3 form. In this instance, as in several others, the applicant's WKC-3 form does not "add up" in the sense that the total charges less the amounts paid by the applicant and other insurers does not equal the unpaid balance, the possibly because the workers compensation insurer paid the difference.

(3)( Back ) The bill also shows a balance forward of $12 for prior unidentified services, and an offsetting $12 payment by the applicant.

(4)( Back ) Under Wis. Stat.  § 102.17(1)(a), a hearing may be adjourned in the department's discretion. Regarding the right of DWD to control its calendar, see also Baldwin v. LIRC, 228 Wis. 2d 601, 615-17 (Ct. App. 1999). 

uploaded 2001/08/13