STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHERYL J VILLWOCK, Applicant

TRINITY MEMORIAL HOSPITAL OF CUDAHY, Employer

TRINITY MEMORIAL HOSPITAL OF CUDAHY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1993043895


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Underlying facts and posture.

The applicant was an x-ray technician for the employer. In June 1993, the applicant noted the onset of neck and right arm pain after pulling a table lever as part of her job duties. The applicant's treatment history is set out at length in the commission's prior order in this case dated May 5, 2000.

To summarize, the applicant first treated with her doctor, who took her off work. She then changed physicians by going to Dr. Goro Tsuchiya. She was examined on behalf of the respondent by Allan Kagen, M.D., whose report indicates that
Dr. Tsuchiya referred the applicant to Dr. Walsh. Exhibit 4, August 23, 1993 report of Kagen, page 3. Dr. Walsh then referred the applicant to S.V. Vasudevan, M.D. (exbibit 14), who in turn referred the applicant to a psychiatrist, S.J. Kim, M.D., as part of the pain management treatment (exhibit I, July 11, 1994 letter from Kim to Vasudevan.)

Thereafter, the applicant began treating with Jeffrey Aldred, M.D., a primary care doctor. He referred the applicant to a pain management specialist (Heydarpour), who referred her to a neurosurgeon, David Maiman, M.D.

During the course of treatment, a herniated cervical disc was discovered. The applicant eventually underwent two surgeries, a cervical fusion surgery and a re-surgery with insertion of instrumentation. Dr. Maiman performed the applicant's cervical surgery.

In July 1998, the application filed an application for hearing seeking compensation for disability and medical expense. A hearing was first held before ALJ Thomas R. Jones on May 24, 1999. In his October 8, 1999 order, ALJ Jones found a compensable injury, and awarded 50 weeks of temporary disability compensation. ALJ Jones did not award compensation for permanent disability, as the applicant remained in a healing period to the date of hearing.

Regarding medical expenses, ALJ Jones found that treatment by Dr. Aldrich constituted a third choice of practitioner, or one more than is allowed without the agreement of the respondent under Wis. Stat. § 102.42(2)(a). Accordingly, ALJ Jones denied payment of the applicant's claims for medical expenses associated with care by Drs. Aldrich, Heydarpour and Maiman.

On review, the commission affirmed ALJ Jones's findings concerning the nature and extent of disability by order dated May 5, 2000. The commission did not affirm, however, ALJ Jones's findings regarding the medical expenses. Instead, the commission set aside that part of ALJ Jones's decision dealing with medical expenses, and remanded the case for additional testimony or written statements regarding whether Dr. Kim referred the applicant to Dr. Aldred.

ALJ Nancy L. Schneiders heard the matter on remand on September 21, 2000. In her decision dated October 2, 2000, ALJ Schneiders found that Dr. Kim referred the applicant to Dr. Aldred. The employer and its insurer (collectively, the respondent) have petitioned for review of ALJ Schneider's October 2000 decision.

2. Record on remand.

At the remand hearing before ALJ Schneiders, the parties obtained testimony from both doctors involved.

Dr. Kim had no written evidence of a formal referral to Dr. Aldred, either in writing or by phone. Dr. Kim did recall, however, the applicant telling him during the course of his treatment that she needed a new primary care doctor for an evaluation for medical treatment that was a primary care, not a psychiatric, issue. Dr. Kim gave the names of three or four doctors whom he regarded as good clinicians. Dr. Aldred was one of those names.

Asked if it was necessary to refer the applicant to a primary care doctor to assist in treating the applicant, Dr. Kim responded:

"Most of the time, yes, it it's in relating or because a psychiatrist itself is relating with the physical phenomenon, interact, and it has to do with the chronic pain she was working through. I need a good medical backup not to miss anything or medical concern [sic]. So with respect to your question, yes, it is important."

Transcript, page 17-18.

Dr. Kim recalled the events clearly because it is important that a patient have a primary care doctor. He did not think he "directed" the applicant to Dr. Aldred because he gave her three or four names, not Dr. Aldred's alone. However, he did hope the applicant would see one of the doctors he named. Transcript, pages 27-29.

Dr. Kim also distinguished the situation in this case, providing names on request of a patient, from what he considered a formal referral for specific treatment. In the case of a formal referral, Dr. Kim would make the referral for his own reasons; he would provide notes to the doctor to whom he referred the patient; he would expect a response back from the doctor to whom he referred the patient; and he would note the referral in his records.

In the applicant's case, however, Dr. Kim had no specific issue he needed to address. His concern was more general, a basic question regarding a primary care issue. Transcript, page 16. Because he did not have a specific concern, Dr. Kim did not provide notes to the other doctor, nor did he expect correspondence back.

It does appear from Dr. Kim's testimony that his usual practice is to provide several names, even when he is referring a patient to a specialist for his own reasons. An exception is when only one doctor provides the specific treatment at issue. But that is unusual. Transcript, page 15.

Dr. Kim was unwilling to testify whether he made a "referral" in this case, indicating that was a legal question he left for the ALJ. He testified he had contacted the lawyers to see if there was any recognized definition of "referral" in the context of worker's compensation (he was told there was none.) Indeed, at the hearing, Dr. Kim asked ALJ Schneiders for a copy of her decision in the hope it would define referral. Transcript, pages 22-23 and 32.

Recognizing that the definition of "referral" is a legal question, the ALJ nonetheless asked Dr. Kim what he considered a referral. Dr. Kims' response indicates that he considers a "referral" to occur when he refers a patient to someone to address a specific question. On the other hand, telling someone who has a cold and is concerned about pneumonia to seek primary care, Dr. Kim thought, might not be a referral. Transcript, page 29-30.

Dr. Aldred, the primary care doctor to whom Dr. Kim referred the applicant, also testified. He has no note or other record of a referral, and his initial note states he is seeing the applicant "as a new patient." He did testify that Dr. Kim had given his name to the applicant to take care of her as a primary care doctor. He never told Dr. Kim about the nature of his treatment. He also testified "people don't typically refer patients to a primary care doctor." Transcript, page 25.

On the other hand, Dr. Aldred acknowledged that there are many definitions for "referral." Transcript, page 37. He sees people every day that other practitioners (including specialists) send to him. It is not a common practice for a family doctor to send notes to a specialist in such a case.

Dr. Aldred did not consider his treatment of the applicant to be on referral. He explained:

"I don't consider her a referral. I consider that she was unhappy with her previous physician and had asked Dr. Kim for an opinion on who she could see for a primary care doctor, and he gave her my name. That's different than writing out a referral and asking for a specific opinion about a medical problem."

Transcript, page 38.

Dr. Aldred did acknowledge that Dr. Kim had recommended him to the applicant. He testified that when he talked about a "referral" being limited to a situation where a doctor sends a patient to another doctor to address a specific question or give a specific opinion, he meant a referral as the term was used in the medical practice. Transcript, pages 38-39. He did acknowledge that he himself even loosely used the term "referral" for a recommendation, as he had written a note on June 5, 2000 saying "subsequently she [the applicant] was referred to me by Dr. Kim." Transcript, pages 41-42; exhibit A.

3. Prior cases.

An employer ordinarily is liable for medical expenses to cure and relieve the effects of the work injury under Wis. Stat. § 102.42. However, this liability is limited under Wis. Stat. § 102.42(2)(a). (1)   Under that provision, an injured worker is allowed only two "free" choices of practitioner; prior approval must be obtained from the insurer or employer for treatment beyond the second choice of practitioner. Treatment on referral from a doctor, or treatment with partners of a doctor or within his or her clinic, is considered treatment by the one doctor. Unapproved treatment expense from practitioners beyond the second choice is not compensable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996).

In their briefs to the commission, neither party cites any reported cases discussing what constitutes a "referral" under Wis. Stat. § 102.42(2)(a), and the commission's own research disclosed none. However, the commission itself has previously dealt with the issue of whether specific treatment was "on referral" within the meaning of Wis. Stat. § 102.42(2)(a).

In Ronald Swenson v. Mercury Marine, WC claim no. 86020707, 1992 WI Wrk. Comp. 34 (LIRC, May 11, 1992), the commission affirmed an ALJ's finding that:

"The applicant's first treating practitioner was Dr. Gubitz.. Dr. Gubitz specifically referred the applicant to Dr. Buck. The applicant has asked for that referral. That was a perfectly proper referral under Wisconsin Statutes section 102.42(2). Nowhere in that section is it provided that it is not a referral as provided in the section, and therefore not a part of the first choice of the applicant, if the applicant specifically requests the referral."

Swenson, at 1992 WI Wrk. Comp LEXIS 34, *7 (ALJ, March 20, 1991).

In Swenson, the ALJ also discussed a situation where the worker asked a subsequent doctor, Gmeiner, for a referral. Dr. Gmeiner apparently wrote out some type of prescription for the worker saying that future care should be by another doctor. However, Dr. Gmeiner's testimony indicated he did not refer the worker anywhere and did not think the worker needed further treatment. The applicant then began treating with a Dr. An.  This situation, the ALJ concluded, did not constitute a referral. Treatment with Dr. An was a new choice. Swenson, at 1992 WI Wrk. Comp LEXIS 34, *9-*11. The commission's memorandum opinion in Swenson specifically adopted the ALJ's findings regarding referral.

In Marianne Olson v. Northern Engraving Corporation, WC claim no. 90-053450, 1992 WI Wrk. Comp. LEXIS 467 (LIRC, December 30, 1992), the injured worker treated initially with the Gunderson Clinic, but became dissatisfied and treated at the Skemp Clinic with a Dr. Phipps.  Dr. Phipps thought the worker might have a muscular problem that was "probably subjectively worse than objectively." Dr. Phipps went on to opine that the worker could return to work with the same restrictions as had been set by the Gunderson Clinic. However, Dr. Phipps also noted that:

"the applicant was not willing to accept his diagnosis 'so we are referring her for a third opinion from a hand surgeon at Mayo with these records.' "

1992 WI Wrk. Comp. LEXIS 467, *2. The commission concluded that Phipps had indeed referred the applicant to the Mayo Clinic under Wis. Stat. § 102.42(2), stating:

"An argument could be made that Dr. Phipps' referral of the applicant to the Mayo Clinic was not actually a referral, so much as a grudging recommendation of another doctor should she want a third opinion. One could therefore argue that the employe was essentially making a "third choice" when she sought treatment at the Mayo Clinic. If that were the case, she would need permission from the insurer not only because the Mayo Clinic is out-of-state, but because it also is outside of the scope of the first two "choices." In that case, the Administrative Law Judge's reasoning that the applicant had received "tacit" permission when the insurer did not object upon learning that she was seeking treatment at the Mayo Clinic would be at issue. However, the Commission concludes that Dr. Phipps referred the applicant to the Mayo Clinic. The Administrative Law Judge specifically found a referral by Dr. Phipps to the Mayo Clinic and the record supports that finding. Because that referral was still within the scope of the applicant's second choice of the Skemp Clinic, it is compensable under sec. 102.42 (2) , Stats."

1992 WI Wrk. Comp. LEXIS 467, *5-*6.

In Marie Sippel v. Terraceview Living Center, WC Claim no. 91023405, 1994 WI Wrk. Comp. LEXIS 369 (LIRC, May 6, 1994), the applicant treated with a Dr. Branham following her work injury, and also saw a second doctor without a referral. She returned to Dr. Branham who opined that she had plateaued, without disability or work restrictions. The applicant then asked Dr. Branham for a referral to another doctor, Engelking.  Dr. Branham noted:

"Marie is basically seen to inquire about an appointment with Dr. Engelking in Stillwater for an additional opinion and surgery if needed. I concur that this is appropriate at this time and ask that a copy of this opinion be provided."

Sippel, 1994 WI Wrk. Comp. LEXIS 369, *7 (ALJ, August 23, 1993).

The ALJ found a referral from Branham to Engelking, and the commission affirmed, stating:

"The respondent further maintains that it should not be held responsible for the medical expenses associated with treatment by Dr. Engelking because his treatment was not pursuant to referral by another doctor. Respondent maintains that Dr. Branham's notation of June 12, 1992, does not suffice to establish that applicant was referred to Dr. Engelking. The commission disagrees. The commission believes that a reasonable interpretation of the notation is that although the applicant approached the doctor regarding seeking another opinion and surgery, Dr. Branham concurred that [*5] such actions would be appropriate. There is no requirement that the doctor invoke magic words that applicant has been referred in order for applicant to establish such referral."

Sippel, 1994 WI Wrk. Comp. LEXIS 369, *4-*5.

In Jack Falluca v. Palmero Villa Inc, WC claim no. 88013914 (LIRC, December 6, 1995), the applicant's treating doctor, Ulrich, noted about the time of the applicant's last office visit that the applicant "should consider obtaining either more testing locally or an opinion from the Mayo Clinic." The applicant subsequently treated at the Mayo Clinic. Dr. Ulrich was not listed as a referring doctor on the Mayo Clinic's Master Sheet and General History, though the applicant did request he be sent copies of the records. The commission declined to find that Dr. Ulrich referred the applicant to the Mayo Clinic under these facts.

In Linda Van Mun v. Caregivers Home Health, WC claim no. 96013487, 1997 WI Wrk. Comp. LEXIS 12 (LIRC, November 6, 1997), the applicant began treating with another chiropractor upon relocating to another city. She claimed she had a referral from her former chiropractor, but it was not established. The applicant's attorney argued that the referral was open-ended; the commission declined to find a referral under these facts. In Kerry Simien v. Milwaukee Mustangs Arena Football, WC claim no. 1997008796 1998 WI Wrk. Comp. 285 (LIRC, September 29, 1998), the commission similarly refused to find a referral from a Wisconsin doctor to a Texas doctor, based only the applicant's testimony that he had been referred in the absence of any corroborative medical notes.

In Soccoro Cruz v. Friday Canning Company, WC Claim no. 1998042723 (LIRC, March 29, 2000), the injured worker, a migrant worker who lived in Texas, was injured while working in Wisconsin. She treated in Wisconsin with a Dr. Combs, then in Texas with a family doctor, Tijmes. The worker testified that Dr. Combs had verbally referred her to Dr. Tijmes. The commission accepted the applicant's testimony and found a referral to Dr. Tijmes in that case, noting a corroborative treatment note and "recommended treatment form" from Dr. Combs indicating the applicant would follow-up with her own physician, a family doctor in Texas.

In Richard E. Kopp v. Spectrum Electric, WC claim no. 1997020312, 1998 WI Wrk. Comp. LEXIS 341 (LIRC, October 29, 1998), the applicant first treated with William F. Stineman, M.D., at a walk-in clinic about two weeks after his work injury. Dr. Stineman diagnosed neck pain, told the applicant he should see a specialist if his condition worsened, then marked a box on a treatment note listing a follow-up recommendation as "No immediate follow up advised, may-up with physician or clinic as needed." The doctor did not mark other boxes on the form which provided for referrals to other clinic doctors or named specialists.

Thereafter, the applicant began treating with a Dr. Simkowski. He claimed this treatment was under referral based on Dr. Stineman's treatment note. The ALJ held there was no referral, so that Dr. Simkowksi was the "second choice" under Wis. Stat. § 102.42(2). The commission agreed, stating:

"Exactly what constitutes a referral may be open to interpretation, but prior commission decisions provide some guidance. On one occasion, the commission found a referral to the Mayo Clinic based on a doctor's note that the applicant did not accept his diagnosis `so we are referring her for a third opinion from a hand surgeon at Mayo with these records.' Marianne Olson v. Northern Engraving Corporation, WC claim no. 90-053540 (LIRC, December 30, 1992). On another occasion, the commission found that a treating doctor's statement that a worker 'should consider obtaining either more testing locally or an opinion from the Mayo Clinic' did not constitute a referral. Jack Falluca v. Palermo Villa, Inc., WC claim no. 88013914 (LIRC, December 6, 1995).

"Dr. Stineman's follow-up recommendations did not constitute a referral in this case. Among the alternative choices on the form he used to recommend follow-up treatment, Dr. Stineman clearly chose the most open-ended which was essentially advice to seek medical treatment if the applicant thought it necessary. Dr. Stineman's recommendation did not result in 'treatment by a practitioner on referral from another practitioner.'"

Kopp, at LIRC website HTML page 3 of 4, 1998 WI Wrk. Comp. LEXIS 341, *6-*7.

4. Discussion.

To summarize the prior commission cases, it is evident that no particular words or formal procedures are necessary to make a referral. Sippel. It is not even necessary to have a written referral. Rather, the commission may base a finding of a referral on the injured worker's own testimony he was referred, at least where there are corroborative medical notes indicating follow-up treatment is necessary. Cruz. On the other hand, the commission may choose to disbelieve a worker's testimony about a referral in the absence of such corroborative notes. Simien and Van Mun.

Vague recommendations about possible future treatment, such as "follow-up if necessary" or "patient may wish to consider further evaluation" are generally not considered "referrals," even when a specific clinic is named. Copp and Falluca. A "referral" made at the patient's request, even if the doctor does not think further treatment is necessary, has been considered a referral, though the doctor may refuse to refer, as Dr. Gmeiner did in Swenson. Further, the commission has found referrals when a doctor directs a patient to another for a "second opinion," even though it does not involve definitive treatment. Olson and Sippel. Finally, the commission has previously found a "referral" based on a doctor's direction to follow up with a family doctor (as opposed to a specialist.) Cruz.

In other words, the commission has not previously limited the definition of "refer" in Wis. Stat. § 102.42(2) to situations where a doctor, at his impetus, refers an injured worker to a specialist for definitive treatment. On the other hand, the consensus among physicians would be that Dr. Kim did not "refer" the applicant to Dr. Aldred as that term is used in the medical community in any formal sense. Dr. Aldred's testimony makes most clear the difference between what he regards as a "referral" and a "recommendation." Although Dr. Aldred himself characterized his treatment of the applicant as on "referral" from Kim in correspondence, the testimony of both Kim and Aldred indicates that they regard Kim as making a recommendation which did not amount to a formal referral.

The commission notes, too, the dictionary definition "the process of directing or redirecting (as in a medical case, a patient) to an appropriate specialist or agency for definitive treatment." Webster's Third New International Dictionary Unabridged (1993). This is similar to what Dr. Kim and Dr. Aldred' regard as a "formal referral": the situation where a doctor sends a patient to another doctor and "ask[s] for a specific opinion about a medical problem." Transcript, page 39.

The commission also notes that the supreme court's "liberal construction" rule applies in cases arising under the choice of practitioner statute, Wis. Stat. § 102.42(2)(a). Thus, the court of appeals has recently stated:

"When resolving statutory ambiguities, courts should advance the legislature's basic purpose in enacting the legislation. See UFE, 201 Wis. 2d at 288, 548 N.W.2d at 63. 'The Worker's Compensation Act was created to ensure that employees who become injured or ill through their employment receive the prompt and comprehensive medical care that is necessary for their well-being.' Id. (citations omitted). The Wisconsin Supreme Court has repeatedly held that the Act should be construed liberally in order to fully effectuate this purpose. See id."

Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 622 (Ct. App., 1998). The court went on to state that "a term is ambiguous if reasonable minds could differ as to its meaning," Hermax, at 220 Wis. 2d 621.

The first question, then, is whether the term "referral" as used in Wis. Stat. § 102.42(2)(a) is ambiguous, and so subject to the liberal construction rule. It could be argued that the term is not ambiguous, and limited to the dictionary definition set out above.

However, one need look no further than Dr. Aldred's own testimony for evidence of ambiguity. Dr. Aldred himself stated in Exhibit A that Dr. Kim "referred" the applicant to him, though he testified that that was a "loose" use of the term. Dr. Aldred also testified that there "are lots of definitions of referral," and Dr. Kim likewise sought clarification of the meaning of the term.

Moreover, applying the strict dictionary definition of referral would be inconsistent with the prior decisions by the commission and worker's compensation ALJs. Patient-requested referrals have been accepted by ALJs and this commission as a "referral" under Wis. Stat. § 102.42(2)(a). Likewise, referrals for second opinions, which of course are not "definitive treatment," have been accepted. A recommendation that a worker follow up with a family doctor who is not a specialist has been accepted. "Verbal referrals" which do not contemplate the exchange of information about the injured worker between the doctors have been accepted.

In short, the commission must decline to apply or adopt the dictionary definition of "referral." The purpose of the Workers Compensation Act in general is to ensure that injured workers receive prompt and comprehensive medical care. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 288 (1996). The purpose of the choice rules in Wis. Stat. § 102.42(2)(a) is to limit "doctor shopping" leading to "unnecessary medical costs" and "unneeded medical treatment." Hermax, at 220 Wis. 2d
622-23. On the other hand, the supreme court has indicated that Wis. Stat. § 102.42(2)(a) should be interpreted to allow injured workers to receive the treatment they need, and to allow the injured worker's practitioner more flexibility in determining appropriate treatment. UFE Inc., at 201 Wis. 2d 288-89.

Examining the facts of this case, the commission cannot conclude that Dr. Kim's recommendation that the applicant treat with Dr. Aldred, even at the applicant's request, constituted doctor-shopping leading to unnecessary expense and unneeded treatment. The applicant did not treat simultaneously with Dr. Aldred and another family doctor. Seeking the recommendation of Dr. Kim, the pain specialist with whom the applicant was treating for the work injury, concerning a primary care doctor who would be coordinating the applicant's continuing care, in fact seems quite reasonable.

The commission also notes that while Dr. Kim did give the applicant three names, his testimony indicates he always tries to give his patients choices even on formal referrals, unless only one practitioner is available to do the work. Moreover, this was not simply a vague recommendation regarding the possible need for a family doctor. Psychiatrist Kim testified that it was important that the applicant have a competent family doctor to work clinically with him. While he did give the applicant three names, he hoped the applicant would follow up with one of them. Dr. Kim's recommendation was not the type of "may wish to consider further testing" or "seek follow-up from a specialist if condition worsens" type of recommendation the commission has previously rejected as a "referral" under Wis. Stat. § 102.42(2)(a).

In sum, the commission, like ALJ Schneiders, concludes that Dr. Kim referred the applicant to Dr. Aldred within the meaning of Wis. Stat. § 102.42(2)(a). The medical expense from treatment with Drs. Aldred, Heydrapour, and Maiman is not beyond the second choice under Wis. Stat. § 102.42(2)(a), and is therefore compensable to the extent it was rendered to cure and relieve the effects of the work injury.

5. Specific items of expense; award.

The last issue is whether all of the claimed expense was incurred to cure and relieve the effect of the work injury. At the hearing before ALJ Jones, the parties agreed to the post-hearing submission of medical expense itemization. On June 8, 1999, then, the applicant submitted an updated itemized statement of treatment expense on form WC-3. On June 16, 1999, the respondent submitted a letter objecting to numerous specific items of the expenses claimed by the applicant on the ground that they were not incurred to treat the applicant's work injury.

Because many of the specific items objected to arose from treatment after the disputed referral from Dr. Kim, the commission did not address the objections in its May 5, 2000 decision in this case. Because ALJ Schneiders believed the objections fell outside the narrow scope of the remand order on the referral issue, she likewise did not address the objections in her October 2, 2000 decision. At this point, however, the respondent's objection to the specific items of expense claimed is now ripe for decision.

In the June 16, 1999, letter setting out its objections, the respondent concedes that the expenses claimed for treatment with Milwaukee Radiologists, Froedtert Memorial Lutheran Hospital, EMPI, and Bluemound Magnetic Imaging, were incurred to cure and relieve the effects of the work injury, but disputed these expenses on the referral issue resolved in the applicant's favor. The only objection stated with respect to the claimed expenses from Walgreens is the referral issue resolved in the applicant's favor. Accordingly, these expenses shall all be paid.

In the June 19, 1999 letter, the respondent also challenged specific items of expense from the Medical College of Wisconsin, CMG United Internists, and Dr. Heydarpour. The applicant has not responded to the respondent's objections. However, the commission cannot resolve these objections on the record as it stands, because (a) the commission is not certain how the objections to the treatment expense affect the amounts paid on the bills by nonindustrial insurers (Bankers Life and Aetna), for which the nonindustrial insurers would be entitled to reimbursement under Wis. Stat. S 102.30(7); and (b) in some cases, the amount of the expenses to which the respondent objected actually exceeds the expenses claimed by the applicant. Jurisdiction shall be retained with respect to these bills, therefore, to permit further appropriate action by the department on the bills, including hearing and decision if necessary, if the parties cannot resolve them.

The respondent also contested pharmacy "charges totaling $312.10 for Tegretol prescriptions," and co-pays of $27.00 for that medication, as not related to the applicant's work injury. The applicant has not responded to this objection, and it is definite enough to permit resolution. Accordingly, $312.10 shall be deducted from the total pharmacy claim, with $27 deducted from the applicant's out-of-pocket pharmacy expense and $285.10 from the amount to be reimbursed to Bankers Life.

The respondent also challenged $4.80 in mileage expense. Again, the applicant has not responded. Accordingly, this amount shall be deducted from the award for medical mileage.

In sum, then, the applicant incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury as follows: from Milwaukee Radiologists, $1,056.20, of which Bankers Life paid $694.07, and $362.13 remains outstanding; from Froedtert Memorial, $25,035.06, all of which Bankers Life paid; from EMPI, Inc., $1,312, of which the applicant paid $259.86 and $1,052.50 remains outstanding; from Bluemound Imaging, $2,563, of which Bankers Life paid $1,045 and $1,518 remains outstanding; from Walgreens, $207, all of which the applicant paid; from "pharmacy" $2,885.26 (after deducting the $312.10 challenged by the respondent), of which the applicant paid $243, and Bankers Life paid $2,642.26. In addition, the applicant incurred $13.92 in medical mileage (after deducting the $4.80 challenged by the respondent).

Consistent with the terms of the commission's May 5, 2000 order, this order shall be left interlocutory to permit claims for additional compensation, including additional medical expense. This order is also left interlocutory to permit resolution of the current medical expense issues identified above.

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

INTERLOCUTORY ORDER

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

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

1. To Milwaukee Radiologists, Three hundred sixty-two dollars and thirteen cents ($362.13) in medical treatment expense.
2. To EMPI, Inc., One thousand fifty-two dollars and fifty cents ($1,052.50) in medical treatment expense.
3. To Bluemound Imaging, One thousand five hundred eighteen dollars ($1,518) in medical treatment expense.
4. To Bankers Life, Twenty-nine thousand four hundred sixteen dollars and thirty-nine cents ($29,416.39) in reimbursement of medical treatment expense paid.
5. To the applicant, the sum of Seven hundred nine dollars and eighty-six cents ($709.86) in out-of-pocket medical treatment expense and Thirteen dollars and ninety-two cents ($13.92) in medical mileage.

Jurisdiction is reserved to permit future orders and awards as are consistent with the terms of this order.

Dated and mailed March 6, 2002
villwoc . wrr : 101 : 3   ND § 5.46  § 5.48 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Charles J. Graf
Attorney Bonni D. Fredrick


Appealed to Circuit Court. Affirmed October 14, 2002. Appealed to the Court of Appeals. LIRC decision set aside and case remanded, unpublished summary disposition, May 23, 2003. 

(LIRC decision on remand)

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Footnotes:

(1)( Back ) 1993-94 Wis. Stat. § 102.42(2)(a) provides "102.42(2)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employe his or her choice of any physician, chiropractor, psychologist, dentist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employe may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employe shall be given his or her choice of attending practitioner at the earliest opportunity. The employe has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner." 

 


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