CLARE GRIGNON, Applicant
ST ELIZABETH HOSPITAL INC, Employer
ST ELIZABETH HOSPITAL INC, Insurer
c/o SENTRY INSURANCE A MUTUAL COMPANY
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:
1. Prior decision.
The applicant, a nursing assistant, hurt her back trying to move a patient on May 11, 1996. The employer conceded the injury, and paid some medical treatment expense and temporary disability compensation. The applicant first treated with Richard Menet, M.D., who opined in February 1997 that she would heal with neither permanent disability nor the need for work restrictions. She later treated with a chiropractor, Charles Boyson.
The applicant eventually underwent a functional capacity evaluation (FCE) on July 6, 1999; Dr. Boyson subsequently opined that the applicant could work subject to permanent restrictions -- indicating an end of healing -- as of that date. However, the applicant continued to treat with her chiropractor in October 1999, and then took up treatment with another doctor thereafter.
The applicant then filed application for hearing seeking permanent partial disability on a functional basis of five percent, and additional medical treatment expenses including the treatment expense through October 1999. After a hearing in April 2000, ALJ Edward W.J. Falkner found the period of temporary total disability claimed, and previously paid, was paid correctly. ALJ Falkner also awarded permanent partial disability at two percent and all the claimed medical expenses, which included expenses as recently as October 1999. ALJ Falkner also reserved jurisdiction, consistent with his findings.
The commission, in a decision dated February 9, 2001, modified ALJ Falkner's decision to conclude that the applicant failed to establish any permanent disability from her work injury. In reaching its decision, the commission noted in its memorandum opinion:
Despite reversing the ALJ's findings on permanent disability, however, the commission did order payment of the claimed medical expenses, including expenses incurred in 1999, and affirmed the ALJ's interlocutory order reserving jurisdiction "for further claims." No further appeal was taken.
2. Hearing on current claim.
After the commission's February 9, 2001 order, the applicant continued to treat, incurring expense of diagnostic assessment and steroid injections. She has filed another application seeking compensation for those expenses, totaling about $8,000 (October 2002 exhibit G.)
ALJ Falkner heard the claim for additional medical expenses on October 28, 2002. At the hearing, the applicant testified she continues to experience pain in her back and numbness in her legs. The applicant provided an expert medical opinion from K.S. Paul, M.D, to the effect that all of the currently claimed medical expenses were related to the May 1996 work injury (October 2002 hearing, exhibit D). The employer provided contrary expert opinion from James Gmeiner, M.D., who believed that the applicant's examination was grossly indicative of symptom magnification. He opined that the expense is not related to the work injury, from which the applicant would have ended healing by October 1996 (October 2002 hearing, exhibit 4.)
ALJ Falkner dismissed the application. The applicant appealed.
3. Discussion; award.
The statutes permit the payment of post-healing plateau medical expenses. Wisconsin Stat. § 102.42 provides:
"102.42(1) The employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employee, if the employer has not filed notice as provided in sub. (4), Christian Science treatment in lieu of medical treatment, medicines and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury... The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed."
Further, medical expenses incurred in good faith on the advice of a doctor remain compensable, even if the commission credits the opinion of another doctor -- including a treating doctor -- that the treatment is not actually necessary. Spencer v. ILHR Department, 55 Wis. 2d 525, 531-32 (1972); Honthaners Restaurants v. LIRC, 2000 WI App 273, 19-23, 240 Wis. 2d 234, 246-50. (1) On the other hand, of course, if the treatment is for a condition not caused by the work injury, the expenses should not be paid. City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 300-01 (Ct. App. 1982). However, at least one court has reversed the commission's attempt to deny medical expense on the theory that continuing, post-injury symptoms for which an injured worker treats on the advice of doctors must no longer be attributable to the work injury because another doctor has opined the applicant has fully recovered without disability from the work injury. See Erwin Moore v. LIRC and Seek, Inc., case no. 01-CV-007797 (Milwaukee County Cir. Ct., March 29, 2002).
Under the facts of this case, the commission concludes that the treatment at issue here was reasonable and necessary, and sought by the applicant in good faith to cure and relieve the effects of her work injury. (2) The applicant testified at the October 2002 hearing that she has continuing pain; the doctors to whom she presented for treatment in 2001 credited her complaints of pain; the commission's February 9, 2001 order paid substantially similar medical expenses incurred nearly three years after the last payment of temporary disability in October 1996; and the commission's February 9, 2001 order, which also reserved jurisdiction, was not appealed.
The commission therefore finds that the employer is liable for the medical expenses outlined in exhibit G: from Affinity Medical Group, $375, of which $125.30 was paid by Network, and $249.70 was adjusted from the bill; from Anesthesia Services Fox Valley, $2,037.80, of which $1,551.30 was paid by Network, and $486.50 was adjusted from the bill; from St. Elizabeth Hospital, $4,842.31, of which $185.16 was paid by the applicant, $2,119.96 was paid by Network, $2,243.66 was adjusted from the bill, and $293.53 remains outstanding; from UW Health, $138, of which $30 was paid by the applicant, $81.36 was paid by Network, and $26.64 was adjusted from the bill; and from Valley Neuro/Microneurosurgery, $498.50, of which $45 was paid by the applicant, $298.68 was paid by Network, $55.20 was paid by BC/BS, and $99.62 was adjusted from the bill. In addition, the applicant incurred compensable medical mileage of $15.27.
However, the commission also concludes that based on the foregoing, any treatment undertaken after that claimed here would no longer be for the work injury. It specifically concludes that the applicant has fully recovered from the work injury without the need for any additional treatment, palliative or otherwise, and that treatment incurred after October 23, 2001 (the last date of the treatment documented in exhibit G) cannot reasonably be regarded as related to the work injury.
No claim for attorney fees was made.
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Clare Grignon, the sum of Two hundred sixty dollars
and sixteen cents ($260.16) in out-of-pocket medical expense and
Fifteen dollars and twenty-seven cents ($15.27) in medical mileage.
2. To St. Elizabeth Hospital, Two hundred ninety-three dollars and fifty-
three cents ($293.53) in medical treatment expense.
3. To Network, Four thousand one hundred seventy-six dollars and sixty
cents ($4,176.60) as reimbursement of medical expense paid.
4. To BC/BS Fifty-five dollars and twenty cents ($55.20) as
reimbursement of medical expense paid.
This order is final.
Dated and mailed June 6, 2003
grignon . wrr : 101 : 3 ND § 5.46 § 5.50
/s/ David B. Falstad, Chairman
James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility with the presiding ALJ, as his decision concluded, essentially as a matter of law, the commission's February 9, 2001, order precluded payment of the medical expenses.
cc:
Attorney John B. Edmondson
Attorney Daniel L. Zitzer
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(1)( Back ) The Spencer and Honthaners holdings were modified by the recent enactment of Wis. Stat. § 102.42 (1m), under which an insurer is not liable for disability indemnity for disability incurred as a result of unnecessary, noninvasive treatment undertaken in good faith. This provision first applies to treatment rendered after January 1, 2002, 2001 Wis. Act 37, SECTIONS 54(3) and 55, and so does not apply to the claimed expenses here which appeared to have been incurred before 2002. Further, the applicant is seeking the payment of the expense itself, not some disability caused by the treatment.
(2)( Back ) The commission considered, but declined, to remand this case for dispute resolution under Wis. Stat. §§ 102.16(2m) and 102.18(1)(bg)2. The commission is satisfied the treatment was necessary given the applicant's complaints; the issue is whether the complaints were related to the work injury.
uploaded 2003/06/13