MARGARET MARTINEZ, Applicant

CITY OF MILWAUKEE, Employer

CITY OF MILWAUKEE, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter on March 25, 1999. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties. The commission has reviewed the evidence submitted to the ALJ, and the documents submitted by the parties on remand. Based on its review of the record as supplemented upon remand, 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 fifteenth paragraph of the ALJ's Findings of Fact (the fourth paragraph on page 4 of his decision), and substitute:

"Dennis Brown, M.D., performed independent medical examinations of the applicant on three occasions: September 3, 1997, March 18, 1998, and September 28, 1998. Following these examinations he submitted reports dated March 31, 1998, September 16, 1997, and October 1, 1998 respectively. He also testified at the hearing."

2. Delete the twenty-second paragraph of the ALJ's Findings of Fact (the fifth beginning on page 5 of his decision), and substitute:

"Dr. Brown's October 1, 1998 report establishes that the applicant's work injury has necessitated two surgeries. In addition, the doctor has set significant permanent restrictions for the right shoulder work injury: no repetitive pushing or pulling, no work above chest height, no lifting greater than 15 pounds with her right arm. Finally, Dr. Brown has rated a relatively high amount of permanent disability. Thus, despite the doctor's opinion that the applicant did not need additional treatment at the time of his examination, it cannot be definitely said that the applicant will not sustain additional disability or incur additional medical expense in the future. Accordingly, an interlocutory order is appropriate in this case to permit future orders in case of additional disability or medical expense related to the work injury.

"In addition, because questions remain as to the respondent's liability for medical expenses if any, jurisdiction is also reserved for further findings and awards on that issue as may be warranted."

3. Delete the fourth (last) paragraph of the ALJ's INTERLOCUTORY ORDER and substitute:

"Jurisdiction is reserved for such further findings and awards as may be warranted and are consistent with this decision."

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

Dated and mailed December 19, 2001
martinm . wmd : 101 : 1  ND § 8.33  § 9.2 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In his March 25, 1999 decision, the ALJ Phillips credited the "collective opinion" of Dennis Brown, M.D., "that Martinez sustained a work injury resulting in a torn rotator cuff on May 18, 1997 for which she has sustained 20 percent permanent partial disability, as compared to amputation." Accordingly, the ALJ awarded permanent partial disability at twenty percent to the shoulder. He also left his award interlocutory with respect to the employer's liability for medical expenses only.

In his decision, the ALJ stated that Dennis Brown, M.D., had performed two independent medical examinations on behalf of the respondent and testified at the September 14, 1998 hearing. As of the date of the hearing, Dr. Brown had performed two independent medical examinations on behalf of the respondent (on September 3, 1997 and March 18, 1998.) By the time of ALJ Phillips's decision, however, the applicant had undergone a third IME examination by Dr. Brown on September 28, 1998. It was not until his October 1, 1998, report following this last examination that Dr. Brown found a definite end of healing with a twenty percent permanent partial disability. (1)   It was also at this point that Dr. Brown concluded that the applicant needed no further medical treatment, having specifically recommended additional treatment following his prior examination in March 1998.

However, Dr. Brown's October 1, 1998 report was not among the material supplied to the commission for review. It, of course, was not among the exhibits introduced at the September 14, 1998 hearing, as the hearing pre-dated the report. It was not attached to the employer's post hearing brief submitted on October 28, 1998. Nor does the transcript of the hearing actually indicate that the hearing record was held open to obtain Dr. Brown's final opinion rating permanency; rather, the ALJ held the record open to permit briefs on the medical bills. September 14, 1998 transcript, pages 65-69.

The commission, of course, realized Dr. Brown had prepared a third report. Although the ALJ did not explicitly mention that report in his decision, he did find that Dr. Brown had rated permanent partial disability. As the doctor had not yet found an end of healing at the time of his March 1998 report, or rated permanent disability either in the March 1998 report or at the hearing, the ALJ's finding strongly implied a third report. Indeed, the applicant's briefs to the commission on review mentioned Dr. Brown's October 1, 1998 report.

Nonetheless, Dr. Brown's October 1, 1998 report was not in the record as it was transmitted to the commission. Because the opinions expressed in Dr. Brown's October 1, 1998 report were central to the ALJ's permanent disability award and his decision to issue a final order, the commission desired "to obtain the opinion upon which the ALJ based his decision." Because it was not certain exactly what the evidentiary status of the report was, the commission concluded further hearing on remand might be necessary. In addition, the commission could not conclude from the record as it stood that the applicant had had the chance to offer expert medical testimony countering Dr. Brown's opinion that the applicant had plateaued with permanent partial disability at 20 percent at the shoulder without the need for further treatment. Thus, the commission allowed the applicant the chance to provide expert medical opinion giving an alternative permanency rating and prognosis or explaining why a permanency rating could not yet be given. Accordingly, on August 31, 1999, the commission remanded the case to the Department of Workforce Development Worker's Compensation Division for further appropriate action.

One month later, on October 1, 1999, the employer forwarded a copy of Dr. Brown's October 1, 1998 report to the Worker's Compensation Division. However, despite repeated attempts, the applicant never obtained a report from a medical expert giving an alternative permanency rating, or explicitly explaining why the applicant had not plateaued from the effects of the work injury. After a conference before ALJ Sherman Mitchell on July 9, 2001, after which the parties were permitted to submit additional documents, the matter was returned to the commission on November 27, 2001.

The commission now modifies and affirms ALJ Phillip's March 25, 1999 order. The commission adopts the ALJ's conclusion that the May 18, 1997 work injury did not effect what the ALJ described as "a non-work related condition involving [the applicant's] upper right extremity that has been the subject of multiple diagnoses . . . of a long standing which predated the injury of March 18, 1997 and was not accelerated or aggravated beyond its normal progression by the conceded work related event."

However, the commission modified the ALJ's decision to retain jurisdiction to permit future orders and awards of disability and medical expense not inconsistent with the ALJ's decision. An interlocutory -- as opposed to final -- order to permit future disability and medical expense awards is appropriate when it may not definitely determined be that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). In this case, IME Brown did opine that the applicant did not need further treatment after he saw her on September 28, 1998, but he also rated a substantial 20 percent permanent partial disability following two surgeries. The commission could not conclude that an opinion on October 1, 1998 -- less than a year after a rotator cuff repair and only months after the second related surgery -- that the injured worker did not then need a further treatment permitted the definite finding that there will be no future periods of disability from the work injury.

Finally, the commission notes the representation of the employer's attorney at the July 2001 prehearing before ALJ Mitchell that Dr. Brown's October 1, 1998 report "was in there" but the commission "did not seem to recognize" that Dr. Brown's report "was in there" even though she "notified them shortly thereafter." July 9, 2001, transcript, pages 13 and 14. The employer's attorney went on to state of the commission:

"they said in their order dated August 31st that there wasn't a record in there that addressed permanency. In fact, there was."

July 9, 2001, transcript, page 14. The record contains other comments from the employer's attorney in a similar vein. Id., at 16.

Actually, and the commission feels compelled to repeat this, Dr. Brown's October 1, 1998 report was not in the record originally transmitted to the commission for review of ALJ Phillips March 25, 1999 decision. Nor did the employer's attorney did provide the commission with Dr. Brown's October 1, 1998 report shortly after the commission's August 31, 1999 remand order. The attorney's October 1, 1999 letter that included Dr. Brown's third report was directed to the Worker's Compensation Division, and the file in this case was not returned to the commission until November 27, 2001.

When this matter again came before the commission in November 2001, the commission did obtain the entire file maintained by the department in this case, including material retained by the Worker's Compensation Division and not originally included within the record reviewed by the commission in 1999. The retained documents include an October 19, 1998 letter to ALJ Phillips from the applicant's attorney requesting an order approving withheld attorney fees. Among the attachments to that letter is Dr. Brown's October 1, 1998 report. As far as the commission can determine, that was the only instance that the report was submitted by either party to Worker's Compensation Division prior to the commission's remand order. To that extent, the employer's attorney is correct in asserting the report was "in there" assuming she meant "there" to include any location within the Department of Workforce Development.

Again, however, Dr. Brown's October 1, 1998 report was not in the record transmitted to the commission for review prior to its August 31, 1999 remand order. That report is crucial not only to support the permanent disability awarded by the ALJ, but also to resolve the dispute -- raised by the applicant on appeal -- about whether a final or interlocutory order was appropriate. While the employer's attorney may have had some basis for her belief that Dr. Brown's report was "in there," this commission ultimately has the responsibility to ensure that the record actually before it -- the record that would be the basis of any judicial review -- supports the findings made in its orders.

cc: 
Attorney Daniel R. Schoshinski
Assistant City Attorney Heidi A. Wick Spoerl

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(1)( Back ) The fact that Dr. Brown did not rate permanency or set an end of healing from the work injury until after the September 1998 hearing is clear from an updated WC-13 submitted by the employer in July 2001; this shows "injury pay" (the employer's substitute for temporary disability compensation) through the date of the hearing to October 1, 1998. 

uploaded 2001/12/21