MARGARET PAETOW, Employee

COUNTY OF MILWAUKEE, Employer-Applicant
SHERIFFS DEPT

COUNTY OF MILWAUKEE, Insurer-Applicant
DEPT OF RISK MANAGEMENT

In August 2000, Milwaukee County filed an application for hearing seeking reimbursement for the mistaken overpayment of benefits to the employee for the period from October 9, 1997 through December 13, 1997, in the amount of $5,990.40. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on March 27 and November 20, 2001. Thereafter, the ALJ concluded that benefits had not been overpaid by mistake for the period claimed, and issued a decision on January 10, 2002, which dismissed the application.

Milwaukee County 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 with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

The employee, a sheriff's deputy, suffered a conceded work injury on August 4, 1997, when the car she was in while on duty was struck from behind. The employee complained of headache and neurologic-like symptoms thereafter, and was kept off work by various doctors while she underwent diagnostic testing.

Among the doctors treating the employee was John Porter, M.D., a neurologist who saw the employee on November 4, 1997. He noted complaints of headache and pain in the left side of the head and left arm, as well as pain and discomfort in the left neck and upper shoulder on the left. He thought the employee's symptoms might correspond to a C4-5 radicular disturbance on the left, reflecting perhaps a C8-T1 component as well. He noted that EMG studies were unremarkable, and that MRI scans did not show any significant compromise of the exiting cervical nerve routes or any abnormality at the skull base.

Dr. Porter thought the employee might benefit from a greater occipital nerve block, and performed one on November 17, 1997. He reiterated that the MRI and EMG did not demonstrate any pathology that suggested a specific nerve route impingement.

The employee was eventually released to work on December 13, 1997. At that time, Milwaukee County's independent medical examiner, Gerald R. Zupnik, opined the employee could return to her normal duty, though she had residual headaches and discomfort secondary to a paracervical strain from the car accident. He thought it would take months for the problem to resolve, but that eventually she would recover with no permanent partial disability.

The employee took some vacation after December 13, 1997, and then returned to work in January 1998. Milwaukee County paid the employee's medical expenses, and conceded temporary total disability to December 13, 1997. However, in early October 1997, Milwaukee County received a letter, purportedly from an acquaintance of the injured employee who identifies himself or herself as "MH, Heatherridge Drive." The anonymous letter writer essentially states that the employee told MH that she was exaggerating her complaints to "play" the injury, and that from MH's own observance, the employee did not seem to be injured at all.

As evidence, an anonymous letter does not even rise to the level of inadmissible hearsay, and MH's letter plays no part in the commission's ultimate findings in this case. The letter was enough, however, to prompt Milwaukee County to hire a private investigator to observe the employee. The investigator took videos of the employee working around her home on October 9 and 15, and December 3, 1997. Based on these videos, Milwaukee County's independent medical examiner, Dr. Zupnik, reported that the employee would have been able to work in light duty in October 1997.

Indeed, Milwaukee County asked the employee's treating neurologist, John H. Porter, M.D., to watch the videotape surveillance. He concluded that the tapes showed an individual with no evidence of neurologic impairment whatever, and which was clearly at odds with the statements the employee made to him regarding her limitations. Exhibit R, letter from Porter dated July 28, 1998.

Under Wis. Adm. Code, DWD 80.47, an employer ordinarily must actually furnish light duty work if it wants to end its liability for temporary total disability while an injured worker is still healing. The commission has previously held that a worker is entitled to rely on the restrictions set by the treating doctor in determining whether to return to work, assuming he or she does so in good faith, even if another doctor suggests the worker may return to work. See for example Honthaners Restaurants v. LIRC, 2000 WI App 273, 240 Wis. 2d 234, and Olson v. Johnson Controls Inc., WC Claim No. 1997-035080 (LIRC Nov. 30, 1998). That approach grew out of Spencer v. ILHR Department, 55 Wis. 2d 525 (1972), which deals with the consequences of an employee's reliance on a treating doctor's opinion. The court in Spencer wrote:

"In setting aside the findings of fact and order of the department, the circuit court held as a matter of law that where an employee, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment (increased period of temporary total disability, increased permanent partial disability and the expense of the arthrodesis) because it finds the treatment was either unnecessary or unreasonable. This conclusion is evidently based on the court's earlier finding of an absolute right to consult a second panel physician without first tendering notice to the employer.

"As we see it, the conflict here is not with the amount of disability ultimately resulting, but whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming Dr. Braun was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. . ."

Spencer, at 55 Wis. 2d 531-32. (1)

In this case, however, the commission infers from Dr. Porter's July 1998 letter that the employee misrepresented her condition and symptoms so as to obtain treatment and work releases that were not necessary to prolong her claim. Stated another way, the commission finds, based on Dr. Porter's letter, that the employee did not seek treatment in good faith after October 19, 1997.

While it is true that Milwaukee County did not offer the employee work on October 9, 1997, Dr. Porter indicates, not just that she exaggerated her symptoms, but that she had no neurologic problems at all. In other words, Dr. Porter's letter leads the commission to conclude that no restrictions were necessary due to her work injury after October 9, 1997. Because her continued treatment -- and the recommendations of her doctors that she remain off work thereafter -- were both unnecessary and not obtained in good faith, her entitlement for temporary disability benefits ended, as Milwaukee County asserted, on October 9, 1997.

The commission therefore finds that the employee was overpaid temporary disability compensation from October 9 through December 13, 1997 (a period of nine weeks and three days.) At the statutory maximum weekly rate for temporary disability compensation of $509 in 1997 -- which would have applied given the employee's $832 average weekly wage-the amount of the overpayment is $4,750.67. (2)

The findings and order of the administrative law judge are reversed. The employer and its insurer overpaid the employee Four thousand seven hundred fifty dollars and sixty-seven cents ($4,750.67) in temporary total disability compensation from October 9, 1997 through December 13, 1997.

Dated and mailed October 31, 2002
paetwom . wrr : 101 : 8  ND  § 5.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. The ALJ, noting that Milwaukee County spent an unusual amount of time and effort following up on the anonymous letter of MH, was not impressed with Milwaukee County's proof. She noted its own examiner, Dr. Zupnik, still found a work-related injury despite watching the videotape. However, the commission put relatively more weight in the opinion of treating neurologist Porter, whose July 28, 1998 report led the commission to conclude that the employee was not acting in good faith when she obtained unnecessary treatment and time off work by misrepresenting her condition after October 9, 1997.

cc: 
Attorney D. Michael Guerin
Attorney Mark A. Grady

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(1)( Back ) Under Wis. Stat. § 102.42(1m), effective with treatment provided after January 1, 2002, an employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is non-invasive. 2001 Wis. Act 37, SECTIONS 35 and 54(3). The disputed treatment here, essentially the medical advice that the applicant remain off work, occurred in 1997.

(2)( Back ) Milwaukee County asks the commission to order repayment of $5,990.40 paid in temporary disability compensation after October 9, 1997. However, while the county may take whatever steps are proper to collect the overpayment, the commission lacks authority to order repayment. See County of Milwaukee v. Mavis Scott, WC Claim No. Claim No. 1998014521 (LIRC, September 27, 2000), where the commission explained: 

However, the commission has previously held that it has no authority to affirmatively order an injured worker to repay an insurer for amounts overpaid. See Gifford v. Gifford Enterprises, WC claim no. 1987046225 (June 30, 2000). While ALJs and LIRC are to determine the "rights of the parties" and can make "awards" under Wis. Stat. § 102.18(1)(b), and while that term is not specifically limited to awards to injured workers, the case law suggests that the authority of ALJs and the commission to account for overpayments is limited to providing a credit against additional amounts awarded. McCune v. Industrial Commission, 260 Wis. 499, 502 (1952). 

See also Neal & Danas, Worker's Compensation Handbook § 5.43 (4th ed., 1997), which states: "The department, however, lacks the authority to order an employee to reimburse a carrier for overpayment." 

Beyond that, while the $5,990.40 figure given by Milwaukee County reflects an 80 percent payment of her salary, compensation for temporary total disability under the Wisconsin worker's compensation act is limited to two-thirds of the average weekly wage up to a maximum compensation rate of $509 per week in 1997. 

uploaded 2002/11/08