BRUCE KREZMAN, Applicant

WIS DRYWALL DISTRIBUTORS, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURGH, 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, except that it makes the following modifications:

1. Delete the sixth sentence of the second paragraph beginning on page 15 of the ALJ's decision, and substitute:

"The fact that Krezman did not seek any treatment for the seven months from September 13, 1996 to April 11, 1997, supports the conclusion he had reached an end of healing as assessed by Dr. Langenkamp as of November 1, 1996."

2. After the second paragraph beginning on page 16 of the ALJ's decision, insert the following paragraph:

"Despite the conclusion that Krezman is not entitled to compensation for his current complaints, he nonetheless has suffered an injury resulting in an award of significant permanent disability and warranting significant work restrictions. This order shall be left interlocutory to permit Krezman to seek compensation for additional disability and medical expense from his crush injury which may arise in the future, and to bring a claim under Wis. Stat. §§ 102.43(5) and 102.61."

3. Delete the ALJ's ORDER substitute the second and third paragraphs of the commission's interlocutory order set out below.

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

The applicant's application for hearing requesting additional temporary total disability benefits and payment of additional medical expenses is dismissed. The applicant has already been paid temporary total and temporary partial disability benefits from January 2, 1996 to September 15, 1996, to which he was entitled along with permanent partial disability payments based upon 20 percent as compared to amputation at the right ankle. An overpayment exists of any temporary disability benefits paid by the carrier after September 15, 1996, as monies paid by mistake of fact.

Jurisdiction is reserved for further orders and awards as appropriate under this decision.

Dated and mailed September 30, 2003
krezma . wmd : 101 : 9    ND § 8.33  § 5.46  § 8.12 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Facts; posture.

The applicant was injured on January 2, 1996, when a forklift ran over his foot. The skin was not broken, however, and there were no fractures. His treating doctor, James Langenkamp, M.D., diagnosed a "crush injury." Dr. Langenkamp noted in March 1996 that the foot was discolored suggesting reflex sympathetic dystrophy (RSD), but that the applicant did not appear to have a full-blown case of RSD.

After several months of continuing treatment, on September 13, 1996, treating doctor Langenkamp found an end of healing from the "very severe crush injury with no fracture that has really responded fairly well to conservative treatment." The doctor did note residual loss of motion, numbness, and pain in the foot. He indicated the loss of motion might be scarring and tightness in the posterior tibial tendon and the Achilles tendon. Although the doctor saw no sign of RSD, he opined that some of the applicant's residual symptoms might be from partial RSD which the doctor felt should resolve in a year or two. Exhibit 9. On November 1, 1996, Dr. Langenkamp submitted a medical report on form WKC-16, rating permanent partial disability at 20 percent compared to amputation of the foot at the ankle. Exhibit 9.

The applicant did not treat again until April 11, 1997 when he sought treatment in an emergency room for symptoms of cramping in the foot and severe pain in the right leg to his calf. This led to considerable treatment, outlined at length in the ALJ's decision, leading ultimately to a diagnosis of RSD and a claim for more disability. Indeed, the applicant's claim was supported not only by treating doctors but also by a physician retained by the insurer, Joseph Burgarino, M.D., who opined the applicant had disability equivalent to a 100 percent loss of right leg.

However, the insurer also retained someone to do surveillance on the applicant. The resulting surveillance videotapes show the applicant moving about on several days with no apparent disability around the same time he was telling doctors he was disabled from the leg pain. The commission has reviewed the videotape exhibits, and cannot detect any impairment, let alone impairment approaching a total loss at the right leg. While the applicant presented himself at the hearing as limping severely on a cane and in great pain, the ALJ -- after watching the tapes and considering the applicant's explanation that he was heavily medicated when videotaped -- came to the conclusion that the entire RSD claim was unsupported.

Accordingly, the ALJ found that the applicant's permanent partial disability was limited to the 20 percent rated by treating doctor Langenkamp back in 1996; that the insurer had paid temporary total disability from January 2, 1996 to April 10, 1997, to which the applicant was entitled; that the applicant failed to show any RSD existed after April 10, 1997; and that any temporary disability payments the insurer made after that were paid by mistake of fact. She issued a final order, dismissing the application "for additional temporary total disability and medical expense benefits."

On appeal, the applicant makes two arguments:

First, that the ALJ should have issued an interlocutory order to permit future claims, including possibly a claim for vocational rehabilitation benefits based on the restrictions treating doctor Langenkamp set.

Second, that no support exists for an end of healing on April 10, 1997.

2. Discussion

a. Interlocutory order.

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). Moreover, 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 in 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 amendments 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, 2002 (WKC-1-P (r. 7/2002)), note 99.

With respect to the applicant's argument that the ALJ should have issued an interlocutory order, the respondent asserts that it should not be subjected to additional claims for vocational rehabilitation benefits based on medical reports obtained by fraud. However, Dr. Langenkamp's report, at least, was not based on fraud. Indeed, the ALJ credited Langenkamp's report, and it does set restrictions which could serve as the basis for a vocational rehabilitation claim.

It is true that Dr. Langenkamp described the applicant's prognosis as good, and did not have further treatment options in his medical report (though he did mention pain clinic trial in his September 13, 1996 note.) But that prognosis does not warrant a final order cutting off a potential vocational rehabilitation claim under the standards set out above, given that Dr. Langenkamp did set permanent restrictions for a serious crush injury that limit standing to two hours at a time, walking to four hours a day, and prohibit kneeling, squatting, and ladder and stair climbing. Further, the ALJ's order as drafted would not have prevented a claim for vocational rehabilitation under Wis. Stat. § 102.18(4)(a) in any event. In short, the commission reserves jurisdiction to permit the applicant to raise not only a potential vocational rehabilitation claim, but also possible future disability from the injury itself which is not related to the current RSD claim.

b. TTD/End of healing.

The applicant's arguments regarding temporary total disability and the end of healing is another matter. Here, the applicant asserts that no doctor set an end of healing on April 10, 1997. On this point, the applicant argues that a second examination for the insurer done by Dr. Novom was unauthorized and that the insurer improperly profited from withholding the report of the first examination done by Burgarino.

However, the examination by Dr. Novom was not really "unauthorized." If the applicant did not want to attend, he could have forced the matter to an order compelling or excusing attendance under Wis. Stat. 102.13(1). While the department has broad discretion in determining whether second examinations for insurers are necessary, (1)   the statute does not specifically prohibit second examinations and in fact requires an employee claiming compensation to submit to reasonable examinations.  Further, while the current law requires insurers to provide copies of such reports to applicants immediately and without demand by the applicant, that law change did not take effect until early 1998. (2)    Dr. Burgarino's examination was in August 1997.

More to the point, the ALJ concluded -- and the commission fully agrees with the conclusion -- that the applicant's whole claim for RSD beginning on April 11, 1997 was unsupported. Based on that conclusion, the ALJ did not credit IME Burgarino's opinion, in spite of its status as an "insurer's doctor" issuing a report in favor of an injured worker.

Finally, the ALJ's order did not find that the applicant remained in a healing period until April 11, 1997. Rather, her findings indicated she believed that he had reached an end of healing on September 13, 1996, as Dr. Langenkamp's treatment note for that date and his November 1996 medical report both indicate. Department records show temporary total disability payments made to the applicant from the date of injury until the September 13, 1996 plateau date set by Dr. Langenkamp, and then resuming from April 1997 to October 1999. This later period, the ALJ determined, was paid in error. However, no temporary disability was paid between September 1996 and the erroneous resumption of temporary total disability in April 1997, and the ALJ properly did not order payment of temporary disability during that period.

cc: 
Attorney Patrick R. Griffin
Attorney Michael C. Frohman

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) Neal & Danas, Worker's Compensation Handbook § 8.12 (5th ed., 2003), citing Dane County Hosp. & Home v. LIRC, 125 Wis. 2d 308 (Ct. App. 1985).

(2)( Back ) 1997 Wisconsin Act 370, SECTIONS 11 and 49.

uploaded 2003/10/06