KAY ELLEN JOURDAN, Applicant

ONEIDA TRIBE OF INDIANS, Employer

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer

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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

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

Dated and mailed October 30, 2002
jourdka . wsd : 101 : 3  ND § 8.32   § 8.33 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

This appeal involves only one issue, which is whether the ALJ correctly retained jurisdiction with a final order.

The applicant was born in 1958. She hurt her shoulder while reaching overhead to knock ice out of a jammed ice machine on March 23, 1999. A tear, or partial tear, of the rotator cuff was discovered on MRI. The applicant has undergone two shoulder surgeries: (1) a debridement of the tear in April 2000 which left her with restricted motion and pain, and (2) a left distal clavicle excision in July 2000 which provided good results.

How good were the results of the second surgery? When the applicant last saw her surgeon, Mark Schick, M.D., on October 23, 2000, he noted she had none of the pain she had pre-operatively and was improving her range of motion. He noted an excellent range of motion with flexion and abduction to 170 degrees, a negative impingement sign, and minimal discomfort and mild tenderness at the AC joint. The doctor released her to work without restrictions, and told her to see him for further treatment only as needed.

However, the applicant testified that motion in her shoulder bothers her, though she can handle it; that her pain in her shoulder on a daily basis is about 4 of 10; that sleeping, particularly, bothers her shoulder; that she takes Ibuprofen on a daily basis (which she did not do before the injury), though she does not take prescription medications; and that her physical therapist instructed her to continue strength and range of motion exercises. The applicant admitted, however, that she had not seen a doctor since her last visit with Dr. Schick, and that Dr. Schick did not tell she needed to return for medical treatment or physical therapy.

At the hearing, the extent of disability was in dispute. The applicant's treating doctor rated permanent partial disability at eight percent at the shoulder; the independent medical examiner rated permanent disability at one percent. The ALJ awarded permanent disability five percent compared to loss at the shoulder. No one disputes that finding on appeal.

The ALJ also retained jurisdiction, explaining:

"It is true that the applicant had a good surgical result and has not sought any formal treatment since October 2000. However, she suffered a partial rotator cuff tear and excision of the distal clavicle. She has a permanent disability. She has many years left in the workforce. She continues to perform physical labor that may trigger recurrent symptoms. In the event she re-injures her left shoulder, it would be within her best interest to have all rights reserved related to this injury. She continues to take pain medications and such medications are reasonably necessary to cure or relieve her from the effects of the injury. The respondent is liable for such ongoing expenses. If her symptoms worsen, she may need to return to the doctor."

The employer and its insurer (collectively, the respondent) appeal this aspect of the ALJ's order. The respondent contends that there really is no evidence from a doctor that further treatment will be necessary or that additional periods of disability are expected. It notes that the relatively recent holding in Lisney v. LIRC, 171 Wis. 2d 499, 522 (1992) suggests that an order may be final on disability, but not on medical expenses; or put another way, the fact that a worker may incur medical expense on an ongoing basis does not rule out the possibility of a final order on disability.

Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:

". . . Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards."

In general, an interlocutory -- as opposed to final -- order to permit future disability and medical expense awards is appropriate when it may not definitely be determined 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). However, the level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is not great. When the words "in its discretion" were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included one of its explanatory notes to its annotated version of the Worker's Compensation Act stating:

"This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate."

DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27. The text of the note has been substantially retained through the current version of the annotated act, see DWD, Worker's Compensation Act of Wisconsin, with amendments to January 1, 2000 (WKC-1-P (r. 7/2002)), note 99. (1)

In short, concrete medical proof may not be strictly necessary to reserve jurisdiction. It is a discretionary decision that may even be based on evidence regarded as "inadequate." On the one hand, a decision-maker has the discretion to issue a final order citing, perhaps, the absence of medical proof as at least part of its rationale, as happened in the commission's Zentgraf decision cited by the respondent. However, a decision-maker also has the discretion to retain jurisdiction in the absence of "adequate" medical proof (assuming that there is something to support the factual inference on which the reservation of jurisdiction is based). (2)

The commission, on review, exercises its discretion in the same manner as ALJ Smiley. The applicant has had two surgeries to the shoulder following her compensable injury, and the surgeries involved excising and debriding the internal soft tissue structures of that joint. She has testified -- credibly to the ALJ -- to residual pain, and the notes of the treating surgeon document residual pain to at least some degree. On these facts, the commission concludes that it "may not be definitely determined" that the applicant will not sustain additional periods of disability with respect to the injury. In other words, the commission affirms ALJ Smiley's reservation of jurisdiction.

cc: 
Attorney Dennis H. Wicht
Attorney Kenneth R. Baumgart

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(1)( Back ) Reviewing courts give great weight to these interpretative notes. Pigeon v. DILHR, 109 Wis. 2d 519, 524 (1982).

(2)( Back ) This was the standard of review in the courts as used in Felber v. LIRC, case no. 92-1325-FT, (Wis. Ct. App. Dec. 28, 1992), where the court of appeals affirmed the commission's decision not to issue an interlocutory order for further treatment. 

uploaded 2002/11/08