CHRISTOPHER J HOLBORN, Applicant

SUPERVALU INC, Employer

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Insurer
KEMPER INSURANCE COMPANY

In March 2000, the applicant filed an application for hearing alleging a November 26, 1999 low back injury, and seeking payment of temporary total disability and medical expenses, as well as permanent disability when assessed. 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 on December 12, 2000.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $707.20, a low back injury on November 26, 1999, and temporary total disability from December 14 to December 28, 1999 (but actually paid to January 12, 2000) in the amount of $1,887.16. The parties also stipulate that the applicant received sickness and accident benefits from Racine Area Health & Welfare Fund for 26 weeks beginning February 28, 2000, at the rate of $400 per week gross (before taxes) and $369.40 net (after taxes.)

The issues before the ALJ included the applicant's claim for an average weekly wage at the statutory maximum for compensation purposes, the nature and extent of disability including temporary disability beyond that conceded, and the employer's liability for medical treatment expense. The ALJ issued her findings and order on these issues on March 12, 2001. The respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted the ALJ regarding witness credibility and demeanor. Having done so, the commission makes the following:

The applicant was born in 1961. He began working for the employer in 1994. For virtually all of his employment, including the 5-1/2 years preceding his injury in November 1999, he has worked as an order selector.

The duties of an order selector involve stacking cases of groceries onto pallets and wrapping them with cellophane so the pallets may be loaded onto trucks. This was a physical job that required physically moving cases or boxes weighing between 10 and 100 pounds. The applicant estimates the average weight to be 35 pounds. Apparently, he was on some type of machine or moving cart that took him to various places in the warehouse where he would pull a case of product from a shelf to be included in a pallet load. He moved between 160 and 300 cases an hour in this job.

In February 1999, the applicant hurt his back changing a tire, apparently off-duty. He had a doctor's visit, underwent therapy, and missed a few weeks of work. His testimony indicates that no continuing medication was prescribed and no extensive testing was done following this injury. Indeed, he was able to return to work at full duty, and testified he felt completely normal until the November 1999 work injury at issue here.

The contested work injury on November 26, 1999, occurred when the applicant lifted a case of bottled water weighing 40 pounds. He turned at the waist to put the case of water on a pallet behind him when he felt a rip and sharp pain in his low back. He reported the injury right away, and went to a hospital emergency room.

At the emergency room, the applicant was treated with pain medication and other medication. The applicant testified that after the visit he treated with Dr. Casaclang who examined him and released him to light duty.

The applicant returned to the employer, doing light duty inventory work. He still had a sore back, and began to see Goro Tsuchiya, M.D., on December 9, 1999. Dr. Tsuchiya's notes are at Exhibit B.

In his initial note, Dr. Tsuchiya reports an injury occurring while the applicant was lifting a box containing water bottles and weighing 40 to 45 pounds. Dr. Tsuchiya also reported that, as the applicant twisted something snapped in his back, causing very sharp pain in the back and buttocks. Dr. Tsuchiya noted, too, that the emergency room doctor diagnosed a sprained back, and treated him with injection, and that another doctor put the applicant on light duty.

Dr. Tsuchiya went on to note continuing complaints of back pain coming down to the mid portion of the calf. Straining caused pain, as did sitting in a chair. The applicant told the doctor about current symptoms including right leg pain and back spasm, and he denied ever experiencing similar symptoms before his injury.

On examination, the doctor noted a markedly diminished right ankle jerk compared to the left side. He noted the lateral sole of the right foot was "almost anesthetic." The doctor noted also that at 60 degrees in the straight leg-raising test on both left and right sides, the applicant began to experience pain in the right leg. The doctor thought this was a good sign of a disc herniation, noting signs of S1 radiculopathy. Accordingly, he ordered a CT scan and x-ray.

On December 11, 1999, the lumbar x-ray was normal. The CT scan showed some bulging at L4-5, but no impingement on the nerve root. The L5-S1 level looked very good, though it did show some facet enlargement. The ankle jerk, which had been markedly diminished on the prior visit, looked very good December 15, 1999. The doctor recommended a week of physical therapy.

On February 10, 2000, Dr. Tsuchiya reported to the applicant's attorney that he had given the applicant facet injections, most recently on February 1, 2000. He opined it was premature to send the applicant back to work on regular duty. He reported that the future treatment would depend on the applicant's response to the cortisone injections.

On February 10, 2000, Arvind Ahuja, M.D., saw the applicant for a neurological consultation. (Exhibit H) The doctor noted the work injury and prior treatment as described above. He noted too that the applicant was told his disc was "good" by Dr. Tsuchiya though he had some facet hypertrophy. The doctor noted too that a return to work had been recommended, and that the applicant nonetheless developed a significant amount of pain.

Dr. Ahuja did not read the December 1999 CT scan as negative. Instead, he reported it demonstrated a lateral disc bulge on the right appearing to impinge on the right L3 nerve root just lateral to the foramen. His diagnostic impression was a patient with low back pain and lumbar radicular symptoms who was not showing improvement with conservative treatment. He wanted to do an MRI.

The report of the MRI, done on February 28, 2000, is at Exhibit C. The impression of the interpreting radiologist was

"At L4-5, a left pericentral disc herniated nucleus pulposus at L4-5 with a mild mass effect on the left L5 nerve root.

"At L5-S1, a far right lateral disc bulge at L4-5 without definite mass effect on any nerve root. The radiologist also observed facet hypertrophy at this level."

Dr. Ahuja reported on follow-up examination on February 28, 2000, that the MRI demonstrated a left paracentral disc herniation at L4-5 with a mild mass effect on the left L5 nerve root. His diagnostic impression was lumbar disc disease
at L4-5 and, to a lesser extent, at L3-4 as demonstrated on the MRI. He noted the applicant had yet to have any improvement in his symptoms of low back pain and primarily right-sided lumbar radiculopathy despite conservative treatment.

Dr. Ahuja thought that continued attempts at conservative care would be most helpful. He and the applicant agreed on a course of three epidural injections. The doctor allowed him to continue to work subject to a 25 pound lifting restriction.

The injections were done on March 8 and 11, 2000. About this time, Dr. Ahuja wrote to the applicant's attorney, indicating that the lifting injury at work directly caused the disc herniation causing the applicant's symptoms, noting the absence of pain prior to the work injury. Dr. Ahuja also noted that the applicant told him the employer could not accommodate his 25-pound lifting restriction, and that Dr. Ahuja accordingly recommended the applicant remain off work.

When the applicant returned to Dr. Ahuja for treatment on March 16, 2000, the doctor noted the applicant had been under conservative treatment with a home exercise program, pain medication, work restrictions, and epidural steroid injections, but without improvement. The doctor nonetheless recommended the applicant continue the current course of conservative treatment. The doctor told the applicant to remain off work unless his lifting restriction could be accommodated and that he should do his exercises. A third epidural steroid injection was scheduled for April.

When the applicant returned to Dr. Ahuja on April 6, 2000, he continued to complain of right-sided low back pain and pain traveling down the anterior lateral aspect of his left leg to his knee. On this occasion, the straight leg-raising test was positive at 30 degrees on the left and at 45 degrees on the right.

At this point, Dr. Ahuja thought it would be reasonable for the applicant to attempt to return to work with gradually increasing hours, but still subject to the 25-pound lifting restriction, and additionally the restriction to 10 flexions per hour.

On follow-up three weeks later, on April 27, 2000, Dr. Rasansky noted significant low back and lumbar radiculopathy worse on the left than the right despite conservative treatment. At this point, the doctor noted the applicant was starting to exhaust conservative options, though the doctor felt it would be reasonable to consider facet blocks prior to surgery. Should improvement not be noted with the facet blocks, discography was the next option. At this point, the doctor took the applicant off work entirely until further notice. See Exhibit F.

The recommendation for facet injections was withdrawn in early May 2000, however, when Dr. Ahuja noted that the applicant had undergone the injections done by Dr. Tsuchiya in early February 2000.

Thereafter, Dr. Ahuja referred the applicant to T.G. Strauss, M.D., for a discogram. The discogram was done on July 17, 2000; it provided no reproduction of pain at L4-5 or L5-S1. At L3-4, though, there was a reproduction of 50-60 percent of the low back pain, but no back pain. There was evidence of a possible annular tear at L3-4 as well. (Exhibit J)

A post-discogram CT scan was done that same day. (Exhibit I) At L4-5, the interpreting radiologist noted:

"a collection of contrast material that extends to, or perhaps beyond, the posterior margin of the annulus fibrosis. Disk protrusion or extrusion here is a definite consideration. A tiny amount of hair is also seen in this region compatible with disk degeneration at this point."

The applicant then returned to Dr. Ahuja on July 24, 2000. The doctor noted these findings, and stated his impression of

"A patient with low back pain and bilateral lumbar radicular symptoms worse on the right than the left which persist despite conservative treatment. His symptoms do correlate with evidence of disease at L3-L4 and L4-L5. Decompression with arthrodesis at these levels would be a reasonable consideration."

Exhibit N, Ahuja report of July 24, 2000, page 2.

At this point, after discussing the situation with the applicant, the doctor said treatment options included no further treatment, continued conservative treatment, and surgery. The most reasonable surgical option, the doctor opined, would be an L3-4, L4-5 decompression with arthrodesis, i.e., a fusion. The doctor thought he could return to work with a 35-50 pound lifting limit, and strongly encouraged the applicant to think over his options.

On August 11, 2000, the applicant saw Gregory Hrasky, M.D., an orthopedist.
Dr. Hrasky noted a referral from the applicant's workers compensation attorney. (1) His impression, after conducting an examination and examining the imaging scans, was radiculopathy with documented pathology at L3-4 and L4-L5. He thought surgery recommended by Dr. Ahuja "could be undertaken." He thought the applicant should get into a new line of work or face significant restrictions. Dr. Hrasky thought the applicant should avoid squat/lifts above 25 pounds, or to 50 pounds if he elected surgery. (Exhibit L)

On August 14, 2000, Dr. Ahuja again noted that surgery was a reasonable option. However, the applicant told the doctor he wished to continue conservative treatment. Consequently, the doctor instructed the applicant to continue his exercises, gave him a refill of medication, released him to return to work with
a 35-pound lifting restriction, and instructed him to return for follow-up evaluation in three months or sooner as needed.

At the hearing on December 12, 2000, the applicant testified he had last seen
Dr. Ahuja on August 15, 2000, and that his next appointment was on December 28, 2000. (2) He testified he would discuss the surgery with Dr. Ahuja during the December 28, 2000, visit.

The applicant also testified that his condition on the date of the hearing was the same as three or fourth months earlier, which of course was the date of his last visit with Dr. Ahuja. On examination by the ALJ, he testified he still has pain in his low back, and has shooting pain down both legs. He has pain in his toes and numbness in his groin and legs. If he lifts or walks his pain gets worse. He still takes Vicodin, as often as three times a day.

Regarding his intentions concerning the proposed surgery, the applicant at one point says the reason the surgery was not done was because of financial circumstances with both the health insurer and the workers compensation insurer refusing to pay for the surgery. On the other hand, the applicant also testified he would discuss the surgery with Dr. Ahuja on December 28, 2000. He acknowledged he had to quit smoking because of the surgery, but frankly admitted he has only reduced-not discontinued-his tobacco use. Indeed, he testified twice that he was "leaning towards" having the surgery. He testified, too, that he was considering a different procedure, a VAX procedure, as an alternative to surgery.

When the employer got Dr. Barron's first report, it ceased offering light duty work, and demanded the applicant return on full duty in January 2000. (Exhibits Q, S, and 1) To date, he has not. The applicant obtained his own health insurance coverage from a non-industrial insurer. However, the applicant testified that the non-industrial insurer refuses to pay for the surgery proposed by Dr. Ahuja. According to the applicant, the non-industrial group insurer contends the need for the surgery arises from a worker's compensation injury.

The record contains expert medical opinion from several sources.

Treating doctor Tsuchiya completed a practitioner's report on form WKC-16B on June 12, 2000. (Exhibit B) He reported his last examination of the applicant was in February 2000. According to Dr. Tsuchiya's report, the applicant described the accidental event or work exposure leading to disability as "the patient injured himself while lifting at work." Regarding causation, Dr. Tsuchiya opined that the work directly caused the applicant's bulging/herniated discs. He opined too that the injury precipitated, aggravated, and accelerated a pre-existing progressively degenerative condition (specifically, the pre-existing spondylitic changes) beyond normal progression.

Dr. Tsuchiya wrote "undetermined" in the spaces on the form inquiring about when the applicant could return to work with limitations, including permanent limitations, and the extent of permanent disability.

Dr. Tsuchiya wrote a second practitioner's report on November 28, 2000.
(Exhibit O) In it, the doctor stated simply that temporary restrictions, permanent restrictions, and the extent of permanent disability could not be determined until the recommended surgery was performed.

Treating doctor Ahuja completed a practitioner's report on form WKC-16-B on April 26, 2000. (Exhibit D) He described the work injury as "a lifting injury at work in the course of which he was lifting a case of some product." For a description of the physical or mental disability or diagnosis, he referred to an attached report, wherein he stated a diagnosis of low back pain and lumbar radiculopathy related to an L4-L5 and L3-L4 disc herniation.

Regarding causation, he opined that the lifting injury directly caused the applicant's herniated discs at L4-5 on the left and L3-4 on the right. He opined too that the work injury probably precipitated, aggravated, and accelerated a pre- existing degenerative condition beyond normal progression, referring specifically to the facet hypertrophy condition.

Turning to the attached narrative letter, Dr. Ahuja noted the work injury, the treatment, and the February 8, 2000, MRI which showed a left pericentral herniated disc at L4-5 with mild mass effect on the left L5 nerve root and a far right lateral disc bulge at L3-4 without definite mass on either nerve root. He noted the applicant had, at that time, returned to work with a 25-pound lifting restriction.

Regarding causation, Dr. Ahuja stated in his March 9, 2000, letter that there was a direct and causal link in the sense that the lifting injury caused the disc herniation, and the disc herniation is the cause of the applicant's symptoms. The doctor noted the absence of pain before the lifting injury. Regarding the applicant's ability to return to work, the doctor stated:

"The patient telephoned us on 3/1/00 and was told that the employer would not allow him to return to work with a 25-pound lifting restriction. He was informed at that point that returning to work with unrestricted lifting was not in his best interest, and he was therefore advised to stay off work until after the second epidural steroid injection and his next office evaluation. He will be returning to the office next week for further evaluation and a determination will be made at that time about any other change in his work status. He is currently to remain off work due to his employer being unable to accommodate
a 25-pound lifting restriction for full-time duty."

Dr. Ahuja filled out a second WK-16-B report on October 12, 2000. (Exhibit M.) In this report, the doctor described the accidental event or work exposure to which the applicant associated his disability as lifting a case of water bottles. Regarding diagnosis, the doctor wrote:

"Patient is in need of a fusion surgery but it cannot be performed for insurance reasons. Therefore, he was released to work subject to temporary restrictions pending the surgery."

The doctor reported the applicant was released with temporary restrictions pending surgery, but could not determine when permanent restrictions would be set, or what permanent disability would result.

The respondent's independent medical examiner is Stephen E. Barron, M.D. (Exhibit 3) Dr. Barron examined the applicant on January 14, 2000. His opinion was that the applicant suffered a lumbar sprain at the time of his work-related injury on November 26, 1999.

In support of this conclusion, Dr. Barron pointed to a normal orthopedic examination of the lumbar spine. He concluded the applicant's subjective complaints were unsubstantiated. Dr. Barron, too, concluded the applicant had "long since" recovered from his injury, and was capable of working without restriction since December 27, 1999.

Dr. Barron went on to opine that the applicant plateaued without permanent disability as of December 27, 1999; that the treatment rendered to that date was appropriate; but that, given the lack of objective findings, no treatment after that date was necessary.

Dr. Barron wrote this report, of course, before the February 2000 MRI which the interpreting radiologist had said showed an L4-5 disc bulge with a mild mass effect on the left L5 nerve root. He wrote a follow-up note, after additional examination on November 22, 2000, which noted the MRI, the discogram, and the rest of the intervening treatment, and which states:

"After re-evaluating Mr. Holborn, my opinions have not changed since my first independent medical evaluation of Mr. Holborn. It remains my opinion that Mr. Christopher Holborn sustained a lumbar strain at the time of the work-related injury on November 26, 1999. An end of healing was reached for that injury by December 27, 1999. Based upon his lack of objective clinical findings correlating with his diagnostic studies, it is my opinion that no permanent partial disability has been sustained and no permanent restrictions are required as a result of that injury.

"In my opinion, the fusion surgery is not necessary. In my opinion, there is no objective basis for performing surgery of this magnitude on Mr. Holborn's spine. He has no significant objective findings on his examination that would correlate with his MRI or discogram findings. Usually the decision for fusion surgery is based on upon a discogram. In my experience, to perform surgery of this magnitude, the discogram needs to be highly positive. In my opinion, this is not the case. Upon reviewing the discogram, he had no reproduction of symptoms
at L4-5 or L5-S1. At the L3-4 level, he had reproduction of 50 to 60 percent of his bilateral low back pain but no reproduction of any leg symptoms. In my opinion, this is not a highly positive test and would indicate that the prognosis for a successful fusion on this gentleman is very poor. Also Mr. Holborn is a smoker, and the risks of nonunion or non-healing are greater in a smoker..

"In essence, none of the opinions that I expressed in my original independent medical evaluation . have changed."

Exhibit 2, November 22, 2000 report of Barron, pages 5-6.

As noted above, the respondent concedes that, on November 26, 1999, the applicant sustained an accidental low back injury arising out of his employment with the employer while performing services growing out of and incidental to that employment. At issue is the nature and extent of disability from that injury.

On this issue, the commission, like the ALJ, concludes that the applicant sustained an injury directly causing disability in the nature of herniated discs at L3-4 and L4-5 and precipitating, aggravating, and accelerating a pre-existing degenerative condition (the facet hypertrophy) beyond normal progression.

The commission cannot accept Dr. Barron's conclusion that the work injury caused only a strain. The applicant was able to work at strenuous jobs before the injury; after the injury imaging tests showed disc herniations, including the February 2000 MRI showing a "mass effect on the left L5 nerve root." The discogram also was at least mildly positive. Neither the work injury nor these objective findings can be gainsaid. The mechanism of injury, a twist while lifting, seems consistent with an injury causing disc herniation. Under these facts, including especially the MRI showing mass effect on the L5 nerve root, the commission credits the applicant's continuing pain complaints from the date of injury, and accepts Dr. Ahuja's expert opinion as most credible.

The commission therefore concludes that, despite Dr. Barron's opinion that the applicant plateaued without permanent disability as of December 27, 1999, the respondent's liability for temporary disability compensation continued after January 12, 2000. The next question is the point at which that liability ended.

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.

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).

In this case, it is important to decide why the applicant has not undergone the fusion surgery recommended by Dr. Ahuja. The applicant testified, and Dr. Ahuja's October 2000 practitioner's report indicates, that the applicant has not undergone the surgery because the respondent would not pay for it. Certainly, denying payment of such a major medical expense would be completely consistent with Dr. Barron's first opinion that no treatment was necessary after December 1999, and that specifically the fusion was a bad idea.

On the other hand, the commission cannot conclude that lack of insurance coverage, or more accurately a coverage dispute between the potentially liable insurers, was the reason the applicant did not have the surgery. Even at the hearing he testified he was still considering less invasive options. Indeed, he testified twice that he was "leaning towards" having the surgery, which of course is different from "I want the surgery but they won't pay for it."

Dr. Ahuja's treatment notes themselves do not mention insurance concerns, but rather suggest only that the applicant was hesitant to have surgery. The doctor's August 14, 2000, note, particularly, indicates that the applicant desired to continue conservative treatment. While Dr. Ahuja's October 31, 2000, practitioner's report refers to "insurance problems" as the reason the applicant did not go ahead with the surgery, the applicant evidently did not see Dr. Ahuja between August 15 and October 31, 2000. Finally, Dr. Ahuja's August 14, 2000, note, while referring to "conservative treatment," suggests the applicant was simply doing home exercises and had essentially stopped treating because, short of surgery, there were no treatment options.

The commission therefore concludes that the applicant stopped treating his work injury on August 14, 2000, and reached a plateau of healing. The applicant is therefore entitled to additional temporary total disability from January 13, 2000, through February 1, 2000 (two weeks and five days), and from February 29, 2000, through August 14, 2000 (24 weeks). If the applicant undergoes, or since the hearing has undergone, the surgery proposed by Dr. Ahuja, he may re-enter a healing period and be entitled to renewed temporary disability compensation. However, that issue is not now before the commission.

At the time of the hearing, the applicant's average weekly wage was in dispute. The respondent conceded an average weekly wage of $707.20, derived by multiplying the applicant's hourly wage rate ($17.68 per hour) times 40 hours per week. The applicant claimed that, by adding in his pension benefits and the amount of the employer's contribution toward his group health insurance, the applicant's average weekly wage would exceed the maximum.

The ALJ rejected the applicant's argument on this point, noting that the policy of the Worker's Compensation Division has long been that such fringe benefits are not included in the determination of average weekly wage. After the ALJ issued her decision, the supreme court affirmed the commission's adoption of the division's policy on this point. Theuer v. LIRC, 2001 WI 26, 242 Wis. 2d 29. Thus, as the ALJ found, the applicant's average weekly wage is $707.20.

The applicant's temporary total disability compensation rate (2/3 times $707.20) is thus $471.47 per week. His entitlement for additional temporary total disability compensation from January 13 through February 1, 2000, is $1,335.82 (2.8333 weeks times $471.47 per week) and from February 29, 2000, through August 14, 2000, is $11,315.20 (24 weeks times $471.47 per week), for a total of $12,561.02.

The parties, however, agreed that the applicant received sickness and accident benefits from Racine Area Health & Welfare Fund (Racine Fund) for 26 weeks at the rate of $400 before taxes and $369.40 after taxes. Under Wis. Stat. § 102.30(7), Racine Fund is entitled to reimbursement of the full amount paid before tax, (3)  or $10,400. Deducting that amount from the applicant's entitlement for temporary disability compensation reduces the applicant's entitlement to $2,251.02.

The applicant agreed to an attorney fee, set at 20 percent of the additional disability compensation awarded, or $450.20. The fee, together with costs of $248.02, shall be deducted from the award and paid to the applicant within 30 days. The remaining amount, $1,552.80, shall be paid to the applicant within 30 days.

The final issue to be addressed is liability for medical expenses. As a result of the industrial injury of November 26, 1999, the applicant incurred reasonable and necessary medical expenses as follows: Sports Physical Therapy, $3792.70 (paid by an unknown payor); St. Catherine's Hospital $3427.80; St. Luke's Hospital, $2361.70 ($2125.53 paid by an unknown payor, $236.17 unpaid); Goro Tsuchiya, M.D., $2201; Midwest Neurological Associates, $3413 ($2774.80 paid by AHC, $638.20 unpaid); The Monroe Clinic, $219 ($138 paid by Central States, $81 unpaid); Pain Physicians of Wisconsin, $7350. The applicant is entitled to reimbursement for prescription expense in the amount of $112.37 and for mileage expense in the amount of $348.29 (1201 miles at .29 per mile). The other payors, Central States, AHC and "unknown" (if "unknown" is not the worker's compensation insurer) are entitled to reimbursement pursuant to Wis. Stat. § 102.30(7)(a).

Because the applicant may require additional treatment for and have additional disability from the work injury, this order is left interlocutory to permit additional awards for permanent disability, future periods of temporary disability, and medical expense.

NOW, THEREFORE, the Labor and Industry 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 the applicant, Christopher J. Holborn, One thousand five hundred fifty-two dollars and eighty cents ($1,552.80) in disability compensation.

2. To the applicant's attorney, Richard A. Fortune, the sum of Four hundred fifty dollars and twenty cents ($450.20) in fees, and Two hundred forty-eight dollars and two cents ($248.02) in costs.

3. To Racine Area Health and Welfare Fund, as reimbursement, Nine thousand six hundred four dollars and forty cents ($9,604.40).

4 To AHC, as reimbursement, Two thousand seven hundred seventy-four dollars and eighty cents ($2,774.80).

5. To Central States, as reimbursement, One hundred thirty-eight dollars ($138).

6. To the unknown payor(s), if identity can be established, as reimbursement, Three thousand seven hundred ninety-two dollars and seventy cents ($3,792.70) and Two thousand one hundred twenty-five dollars and fifty-three cents ($2,125.53).

7. To St. Catherine's Hospital, Three thousand four hundred twenty-seven dollars and eighty cents ($3,427.80).

8. To St. Luke's Hospital, Two hundred thirty six dollars and seventeen cents ($236.17).

9. To Goro Tsuchiya, M.D., Two thousand two hundred one dollars ($2,201).

10. To Midwest Neurological Associates, Six hundred thirty-eight dollars and twenty cents ($638.20).

11. To The Monroe Clinic, Eighty one dollars ($81).

12. To Pain Physicians of Wisconsin, Seven thousand three hundred fifty dollars ($7,350).

13. To the applicant, Four hundred sixty dollars and sixty-six cents ($460.66) in medical mileage and out-of-pocket medical costs.

Jurisdiction is reserved for such further findings, orders, and awards as are warranted consistent with this decision.

Dated and mailed August 15, 2001
holborn . wrr : 101 : 3 ND § 5.6   § 5.13 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission conferred with the presiding ALJ regarding the credibility and demeanor of the applicant's testimony, particularly with regard to the reason the applicant had not undergone the proposed treatment by the date of the injury. The ALJ explained that she believed the applicant was whipsawed between the insurers, with the workers compensation insurer claiming that the applicant's surgery was not due to a work injury and the non-industrial group health insurer claiming it was. She noted, too, that Dr. Ahuja did not recommend surgery until the summer of 2000, and that thereafter Dr. Hrasky at the Monroe Clinic seconded the recommendation.

However, the ALJ also noted that the applicant was hesitant about undergoing the proposed fusion surgery due to his age and the fact he would have to discontinue cigarette smoking. For those reasons, and those outlined by the commission in the body of the decision above, the commission was left with doubt as to whether the applicant would have continued treatment by undergoing the surgery, even if the one of the insurers had agreed to pay for it prior to the hearing.

cc: 
Attorney Cori Lynn Prahl
Attorney Richard A. Fortune

Appealed to Circuit Court. Affirmed December 30, 2002. 

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(1)( Back ) The applicant testified that his aunt, not his attorney, recommended Dr. Hrasky. The doctor did cc Attorney Fortune on his note, however.

(2)( Back ) Evidently, then, the December 4, 2000 appointment was re-scheduled.

(3)( Back ) The commission concludes that the applicant has consented to the reimbursement of Racine Fund. As is noted in Neal & Danas, Worker's Compensation Handbook § 5.13 (4th ed., 1997), an applicant may have to file amended returns to recoup the tax payments withheld from payments under the non-industrial policy.

uploaded 2001/09/05