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

TODD MICHAEL LEMMENS, Applicant

GREAT NORTHERN CORPORATION, Employer

WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-048478

Great Northern Corporation and Wausau Underwriters Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 25, 2001. A compensable back injury was conceded as having occurred on January 10, 1999, and an average weekly wage of $645.91 was also conceded. The issues noticed for hearing were medical expense and average weekly wage, with the latter issue having been resolved prior to the beginning of the hearing. The administrative law judge's decision also listed as an issue the nature and extent of the applicant's disability attributable to the work injury. However, there was no indication in the synopsis of the hearing, nor in the administrative law judge's handwritten notes of the hearing, that the parties ever stipulated to this as an issue. The administrative law judge indicated in consultation with the commission that prior to the taking of testimony, he asked respondents' counsel whether respondents were disputing nature and extent of disability in defense of the applicant's claim for chiropractic expense, and received an affirmative answer. However, this exchange is not in the record before the commission. It is also not a persuasive indication that the nature and extent of disability, except as it relates to the claimed chiropractic expense, was properly placed at issue.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's ultimate finding that the claimed chiropractic expense should be awarded with an interlocutory order, but sets aside his findings and substitutes therefor the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is October 20, 1968, was employed as a forklift operator for the employer. His duties required him to drive a forklift from a loading dock into and out of semi-trailers. On January 10, 1999, the applicant drove his loaded forklift into a semi-trailer but did not notice until he tried to stop that the floor of the trailer was covered with ice. As a result, the forklift slammed into the metal wall of the trailer and each fork penetrated through the wall approximately one foot. He braced himself for the collision by placing his left arm and hand on the forklift steering wheel, but his back was jarred by the impact. He felt stiff, but after reporting the incident and completing an accident report he went back to his duties. He has never lost any work time due to this incident.

The applicant thereafter developed a sore back, which was worse after sleeping but would loosen up while he was working. The pain was located near or between the shoulder blades and would wake him up at night. He would also experience sharp back pain with "certain movements." He described the back pain as regularly being at six on a scale of ten, and indicated that it has continued since the work incident.

The applicant further testified that "approximately a week or two" after the work incident he began developing migraine-type headaches, mostly at night, which also woke him up from his sleep. These caused pain most often to eight on a scale of one to ten, and lasted one hour on average. He testified that these occurred daily, and that he never had headaches like them prior to the incident.

On January 25, 1999, the applicant saw his family physician, Dr. Mark Hallett, to seek treatment for heartburn, weight gain, snoring, and hypertension. No mention was made of back trouble or headaches. On February 16, 1999, the applicant saw
Dr. Hallett again for hypertension, heartburn, and snoring. Again, no mention was made of back trouble or headaches.

On March 10, 1999, the applicant saw a chiropractor, Dr. James Rouse, for mid-back pain and headaches. Dr. Rouse's notes indicate that the headaches occur "sometimes" rather than all of the time. Dr. Rouse diagnosed a thoracic spine strain and began chiropractic treatment which continued until July 21, 1999. On March 15, 1999, Dr. Rouse completed a x-ray report which indicated there was anterolisthesis of C2 on C3, as well as C3 on C4. Dr. Rouse completed an undated WC-16-B in which he found direct work causation with no permanent disability and no need for further treatment.

At respondents' request, Dr. Kelly Hollander, also a chiropractor, examined and evaluated the applicant on July 14, 1999. In her report dated July 28, 1999, Dr. Hollander opined that the applicant sustained a mild sprain/strain injury as a result of the work incident. The history Dr. Hollander took was of headaches developing approximately two months after the incident, when the applicant had gone to a sports medicine specialist to have his blood pressure checked because he suspected it was high, and he was starting to notice headaches. High blood pressure was ruled out as a cause. Dr. Hollander opined that the headaches were probably related to the applicant's insomnia, but she did not address the cause of the insomnia. Dr. Hollander further opined that the applicant's mid-back pain was a manifestation of his preexisting condition, since she describes this as episodic mid-thoracic pain dating back to 1994. She opined that a healing plateau had been reached by January 31, 1999, with no permanent disability. Finally, she opined that the chiropractic treatment rendered by Dr. Rouse was not related to the work injury.

The applicant filed an application for unpaid chiropractic bills from Dr. Rouse in the amount of $2,581. Respondents conceded a sprain/strain and paid medical expenses of $1,775. The administrative law judge ordered a "tie breaker" exam under Wis. Stat. § 102.17(1)(g). Dr. James Leonard performed this exam and submitted a written report dated April 23, 2001.

The application for hearing which the applicant filed on October 6, 1999, contained a claim for outstanding chiropractic expenses in the amount of $2,581.00. No other issue was raised in the application, and the notice of hearing listed only "Medical Expense" and "Wage 102.11" as the issues for hearing (respondents had disputed the average weekly wage figure in their answer to the application). One of the required elements for a fair hearing is the right to reasonably know the charges or claims proffered. Theodore Fleisner, Inc. v. DILHR Dept., 65 Wis. 2d 317, 326, 222 N.W.2d 600 (1974). The issue of nature and extent of disability was not noticed for hearing. Accordingly, the respondents have a valid objection to the admission of Dr. Leonard's opinion, which comments on nature and extent of disability.

It is clear that at the hearing the administrative law judge became concerned with the fact that the pro se applicant, who alleged ongoing difficulties with his back and with headaches, had not understood that bringing his claim for outstanding chiropractic expense could result in a final order which would preclude any further claims dealing with nature and extent of disability. This concern prompted the administrative law judge to order the "tie breaker" medical examination.

However, the commission concludes that without proper notice having been given that the issue of nature and extent of disability would be addressed at the hearing, it was not a proper exercise of discretion to order the "tie breaker" exam to address that issue. (1)   There was sufficient evidence in the record concerning the reasonableness and necessity of the claimed chiropractic expense to have resolved that issue without an additional medical opinion. The administrative law judge's legitimate concern that a final order might prevent the pro se applicant from bringing any additional claims which he may have wished to bring, should have been addressed by simply leaving the order interlocutory with respect to all issues other than the claimed chiropractic expense and average weekly wage. In fact, that would have been the appropriate action to have taken, because neither the application for hearing nor the department's notice of hearing indicated an intention to resolve anything beyond the issues of outstanding chiropractic expense and average weekly wage. The department possesses discretionary authority to issue orders which may be final with respect to one or more issues, but interlocutory with respect to one or more additional issues. See Wis. Stat. § 102.18(1)(b). Also see, Lisney v. LIRC, 171 Wis. 2d 499, 518-19, 493 N.W.2d 14 (1992); Gallenberg v. DILHR, 269 Wis. 40, 42-43, 68 N.W.2d 550 (1955).

Accordingly, the "tie breaker" examination by Dr. Leonard is stricken from the record of this proceeding. The commission accepts as credible Dr. Rouse's opinion that the chiropractic treatment that he rendered to the applicant up through July 21, 1999, was reasonably required by the effects of the thoracic spine strain he sustained at work on January 10, 1999. Dr. Rouse's opinion concerning the outstanding chiropractic treatment expense is accepted over Dr. Hollander's opinion because the commission finds that Dr. Rouse's treatment was reasonable in kind and duration given the type of injury the applicant sustained. In addition, Dr. Hollander based her opinion of an early healing plateau on conjecture, since she did not examine the applicant until July 14, 1999, only one week prior to the last treatment by Dr. Rouse. This order will be left interlocutory with respect to all issues arising from the conceded back injury of January 10, 1999, except the issues of average weekly wage and the chiropractic treatment expense claimed through July 21, 1999.

Now, therefore, this

INTERLOCUTORY ORDER

The findings made by the administrative law judge are set aside and the commission's findings are substituted therefor. The administrative law judge's Interlocutory Order, which awarded the claimed chiropractic expense, is affirmed. Within 30 days from this date, respondents shall pay the sum of two thousand five hundred eighty-one dollars ($2,581.00) to Rouse and Associates Chiropractic, S. C.

Jurisdiction is reserved with respect to all issues except average weekly wage and chiropractic expense claimed through July 21, 1999.

Dated and mailed March 14, 2002
lemmeto . wpr : 185 : 8 ND § 8.15  § 8.18  § 8.33 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

If the applicant believes that he may be entitled to additional worker's compensation benefits, the interlocutory nature of this order allows him to file an additional claim within the twelve-year period set forth in Wis. Stat. § 102.17(4).

The above decision is limited to the issues noticed for hearing; namely, the claimed chiropractic expense from Dr. Rouse extending through July 21, 1999, and the issue of average weekly wage which was resolved through concession.

cc: Attorney Wayne R. Luck

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Footnotes:

(1)( Back ) A "tie breaker" exam could properly have been ordered had the administrative law judge desired an additional medical opinion addressing only the issue of the outstanding chiropractic expense, and had Dr. Leonard been directed to limit his opinion to that issue. 

 

uploaded 2002/03/18