CAROLE GOHL, Applicant

FRANCISCAN CARE & REHABILITATION CENTER, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

In January 2002, the applicant filed an application claiming permanent total disability based on occupational exposure resulting in a latex allergy. Administrative law judge (ALJ) Edward W.J. Falkner of the Department of Workforce Development, Worker's Compensation Division (the department) has issued a prehearing order in this case suspending the applicant's right to proceed on her claim for benefits based on her refusal to attend a psychological evaluation on the terms previously ordered by the ALJ. The applicant has filed a petition for commission review.

Two issues are raised on appeal: (1) does the commission have jurisdiction on the petition, and (2) assuming the commission has jurisdiction, what action should it take under Wis. Stat. § 102.18(3) with respect to the ALJ's prehearing order.

The commission has reviewed the positions of the parties, and the material in the case file submitted to it for review. Based upon its review, the commission makes these:

1. Posture.

There has been no hearing in this case.  The commission assumes the following "facts" based on its review of the file to resolve the procedural issues raised on review.

The applicant was born in 1939. She claims she has an occupationally-caused allergy to latex and formaldehyde caused by work as a certified nurse's assistant. She evidently received temporary disability compensation for several weeks in 1997 and 1998.

The applicant is now claiming permanent total disability from her allergy. The respondent wanted to have the applicant examined by a medical doctor and a psychologist, and arranged for the examinations. (2)   The applicant did not object to the examination before the medical doctor, an occupational medicine specialist, but did object to the examination by the psychologist, as the applicant had not received psychological treatment, and was not presenting a claim for psychological disability or expense. (3)

A conference call was then held between the applicant's attorney (John Edmonson), the respondent's attorney (Robert Zilske), and ALJ Falkner. The upshot was that the ALJ ordered the applicant to attend the psychological evaluation requested by the insurer. There is nothing in the file to formally document this order when made, but it is clear that ALJ Falkner ordered the applicant to attend the psychological evaluation in a telephone conference on July 7. (4)

The psychological evaluation was scheduled before Thomas Lynch, Ph.D. for July 10, 2003. The applicant evidently went to Dr. Lynch's office, but told him she would not complete any forms or give him writings of any sort unless she were immediately provided with a copy of the writing or form. Dr. Lynch refused to administer psychometric testing under these circumstances.

Dr. Lynch's refusal to administer the testing was apparently driven by a fear that releasing a raw MMPI -- the testing materials or the questions asked in the testing -- could become available to the general population and affect the validity of the test. Indeed, Dr. Lynch felt he was ethically prohibited from releasing the test, or as the respondent's attorney (5)   states "the American Psychological Association has propounded a rule of ethics that precludes a psychologist from doing what Ms. Gohl demanded Dr. Lynch do."

According to the respondent, Dr. Lynch was willing to provide a complete copy of all test materials to a psychologist of the applicant's choice, and told the applicant that. She still demanded to get the material herself. Dr. Lynch thus did not proceed with the testing or apparently, the evaluation on July 10, 2003.

This resulted in another phone conference on July 15 between ALJ Falkner and the attorneys. At the conclusion, the ALJ issued another prehearing order. This order is documented in a letter dated July 15, 2003. The ALJ's order states in part:

I have ordered that the employee will take whatever tests propounded by Dr. Lynch without requesting or demanding that a copy of any writing be given to her as a prerequisite thereto. I have also indicated that, upon the worker's request, a complete copy of all test materials would be sent to a licensed psychologist of her choice.

The ALJ also stated that if the applicant failed to take whatever testing Dr. Lynch required without limitation, he would "deem that obstruction of the independent examination and will suspend proceedings in this matter until she does engage in such an evaluation."

Mr. Zilske went ahead and arranged for another psychological evaluation before Dr. Lynch. By letter dated July 23, 2003, Mr. Edmonson informed ALJ Falkner he had instructed the applicant not to attend, "as an unreasonable intrusion into her freedom, dignity and privacy" and because a psychological evaluation was not relevant. He forwarded a copy of a psychological report done in 1999 for the DVR which indicated that the applicant did not need psychological treatment, and asked the ALJ to reconsider his order.

Mr. Zilske then obtained a letter from its medical expert, David Drury, M.D., who opined psychological testing would be warranted, and he forwarded that to ALJ Falkner by letter dated July 24, 2003.

The applicant did not attend the July 25 examination before Dr. Lynch. Mr. Zilske then sent a letter to Falkner pointing out the applicant's non-attendance. Mr. Zilske's letter concludes:

"At this point, consistent with Section 102.13, it would appear as though Ms. Gohl's right to benefits has been barred as of 12:00 Noon on Friday. I also presume that dispositive proceedings are suspended."

Zilske letter dated July 28, 2003.

ALJ Falkner then wrote a letter dated July 30, 2003, suspending the applicant's right to begin or maintain a proceeding for the collection of compensation. Specifically, he wrote:

"Applicant's attorney instructed his client to disobey my directive, and I have therefore determined, and in fact I almost have no choice in the matter, that the worker's right to begin or maintain the proceeding for collection of compensation in this matter is suspended."

The applicant filed a petition for commission review of this decision. She first asserts that ALJ Falkner's order to take the tests "without requesting a copy of any writing be given to her as a prerequisite thereto" was in error in light of Wis. Adm. Code § 80.24 which allows workers to obtain copies of statements they give. She also argues that since the applicant is not claiming compensation for a psychological disability, making her attend a psychological evaluation "is an unreasonable intrusion into her freedom, dignity, and privacy.

The respondent answers that ALJ Falkner's orders are not orders that award or deny compensation, but are merely procedural, and so are not reviewable. He argues too that the applicant mischaracterizes the effect of ALJ Falkner's order, noting that the ALJ specifically allowed the applicant to request Dr. Lynch to send a copy of any testing materials to his or her own psychologist.

Neither side requests briefs.

2. Discussion.

a. Jurisdiction

The first issue is whether the commission has jurisdiction. The respondent correctly points out that Wis. Stat. § 102.18(3) limits the right to petition for commission review to decisions awarding or denying compensation. Thus, the commission must determine whether ALJ Falkner's letter of July 30, 2003 is a "decision" that awards or denies compensation.

The commission concludes that ALJ Falkner's letter is a "decision," even though it is not styled as a formal order following findings of fact. Even if the term "order" had been used in Wis. Stat. § 102.18(3), the term "order" is broadly defined to include "any decision made by the department." Wis. Stat. § 102.01(2)(dm).

The term "decision" itself is not defined in Wis. Stat. § 102, but the reference to "any decision made by the department" in the definition of "order" suggests a very broad meaning for the term "decision". ALJ Falkner's letter, made after prehearing conferences where he collected the facts, considered argument, prehearing, and then reached a determination about whether proceedings should continue, cannot reasonably be considered to be something other than a "decision." (6)

Does the decision award or deny compensation? ALJ Falkner's letters expressly only refer to suspending the applicant's right to begin or maintain a proceeding for the collection of compensation in this matter. Suspending the right to bring a claim for benefits might be viewed as different than actually denying them. By analogy, the commission usually routinely finds it lacks jurisdiction to review ALJ decisions dismissing applications without prejudice, (7)   on the theory the applicant may always refile and so compensation has not been denied. Likewise, the commission held it had no jurisdiction in a case where an ALJ denied an employer's request to go ahead on an application seeking increased compensation for a safety violation, and instead kept the case in "not ready" status. Wischer (deceased), et al., v. Mitsubishi Heavy Industries, Claim Nos. 1999-136134, 1999-036140, 1999-036128 (LIRC, November 29, 2001).

However, in this case, the effect of ALJ Falkner's July 30, 2003 letter goes beyond simply postponing the point at which the applicant's case can be heard. Wis. Stat. § 102.13((1)(c) (8)  does not only suspend the applicant's right to proceed on a claim for benefits while he or she refuses to attend an IME. In addition, the statute provides that -- where as here an ALJ orders a worker to attend an IME and the worker refuses -- the worker's right to the weekly indemnity accruing during the period of the refusal is barred. ALJ Falkner may not have expressly provided for the barring of indemnity accruing during the time the applicant refuses to comply with his order to attend the psychological evaluation, but both parties recognized that was the effect of the ALJ's July 30 letter. (9)

In other words, one consequence of ALJ Falkner's letter of July 30, 2003 is to bar her right to weekly indemnity accruing from the point the applicant refused to comply with ALJ Falkner's order to attend the psychological evaluation with Dr. Lynch on July 25, 2003 until she finally attends the evaluation. Because the applicant's claim is for permanent total disability beginning in February 1999 and ongoing, ALJ Falkner's letter would finally deny her right to compensation for at least some of that period.

In sum, ALJ Falkner's July 30, 2003 letter is a decision that denies compensation. The commission thus has jurisdiction.

b. Should ALJ Falkner's decision be affirmed?

The next question is whether the commission should affirm ALJ Falkner's July 30, 2003 decision. The applicant argues essentially that ALJ Falkner erred in ordering her to attend the psychological examination by Dr. Lynch because she is not making a psychological claim.

However, the fact she is not claiming psychological injury does not rule out the relevance of her psychological state of being to her claim for permanent total disability, either based on the assertion that there is a psychological basis for her functional disability on the assertion that her psychological condition may affect her ability to work or find work and thus her claim for permanent total disability. Indeed, the applicant's prior psychological evaluation in 1999 was requested by DVR -- which was providing services based on the applicant's "complex set of skin reactions to latex and formaldehyde" -- to determine her "current level of cognitive and pyschoemotional functioning, along with any input . . . into the vocational or rehabilitation planning and service provision process." Psychological evaluation of Steven P. Kaplan, Ph.D., dated May 26, 1999, pages 1 and 2. While Dr. Kaplan concluded in 1999 that the applicant did not require mental health intervention at the time, that does not mean the employer and the insurer are required to accept his conclusions without further evaluation.

The test is one of reasonableness. Wisconsin Statute § 102.13(1) requires a worker to attend reasonable adverse examinations requested by an employer or insurer, assuming the insurer or employer pays for it and otherwise follows the necessary steps. Given that this is a permanent total disability claim, that the employer's medical examiner has stated psychological testing is warranted, that she previously had a psychological evaluation in 1999 -- albeit one which found no psychological diagnosis or need for treatment at that time -- , and that the commission traditionally gives some degree of deference to ALJs in prehearing issues of this type which involve the ALJ's control of his or her calendar, (10)  the commission concludes that the ALJ could reasonable order the applicant to attend the psychological evaluation.

The next question involves the language in the ALJ's July 15, 2003 order (which is carried forward into his July 30, 2003 order) instructing the applicant not to demand a copy of any writing from the doctor as a precondition to the psychological evaluation. The applicant argues that the instruction exceeded the ALJ's authority, pointing to Wis. Admin. Code § DWD 80.24. (11)  That rule states that whenever an employee gives a statement signed by him or her, which in any way concerns his or her claim, a copy of the statement must be given to the employee.

Wis. Admin. Code § DWD 80.24 was repealed in late 2002 due to the enactment of Wis. Stat. § 102.123 by 2001 Wis. Act 37, effective January 1, 2002. While the repeal occurred after the date of injury, it was prior to the events at issue in this case. Because Wis. Admin. Code § DWD 80.24 is a procedural rule not directly affecting the amount or right to compensation, the commission is not certain that Wis. Stat. § 102.03(4)   (12)  governs its application in this case. Moreover, new Wis. Stat. § 102.123 uses somewhat different language than former Wis. Admin. Code DWD 80.24, and in particular seems limited to statements provided to the employer or the employer's insurer.

The commission need not determine whether Wis. Admin. Code § DWD 80.24 has continuing application in this case, or whether new Wis. Stat. § 102.123 applies to the MMPI or similar testing administered by an examining psychologist retained by the employer or insurer. The applicant has the right under Wis. Stat. § 102.13(2)(a)   (13)  to demand from Dr. Lynch any information or written material reasonably related to any injury for which she claims compensation. The ALJ erred in ordering her not to make that demand on Dr. Lynch, but instead to undergo the examination ‘without requesting or demanding that a copy of any writing be given to her as a prerequisite thereto...' Accordingly, his orders of July 15 and July 30, 2003 must be set aside. 

The respondent is free, of course, to request another order compelling the applicant to attend a psychological evaluation. ALJ Falkner may, in his discretion, order the applicant to undergo the psychological evaluation as long as he does not order her not to give up her right to demand copies of statements or other writings.

The commission anticipates that if the applicant again demands that Dr. Lynch provide her with copies of the testing materials, the doctor will again refuse. In that event, the commission expects that the applicant will continue with the evaluation in good faith. If she does not, she faces possible suspension of her claim and forfeiture of compensation under Wis. Stat. § 102.13(1)(c).  On this point, the commission notes that the penalty for failing to provide a copy of a ‘statement' to an employee under old Wis. Admin. Code § DWD 80.24 and new Wis. Stat. § 102.123 is to exclude the statement; neither those provisions nor Wis. Stat. § 102.13(2)(a) permit the worker to refuse to undergo a psychological evaluation ordered by an ALJ on that basis. Simply demanding copies of the material, however, cannot in and of itself be considered "obstructing" the evaluation within the meaning of Wis. Stat. § 102.13(1)(c).

The commission does not decide at this point what the effect of Dr. Lynch's anticipated continued refusal to provide the MMPI or other psychological testing material will eventually have on the applicant's claim. Instead, that issue -- assuming it arises -- should be raised and decided if and when the respondent attempts to use the statements given in the MMPI or other psychological testing "in any manner in connection with that claim."

In sum, the commission shall set aside ALJ Falkner's July 30, 2003 order suspending the applicant's claim. The respondent may request another order compelling the applicant to undergo a psychological evaluation, and the ALJ may order it, provided he does not order her to give up her right to demand copies of statements or other writings. If the psychological evaluator refuses to provide copies of such statements or writings for any reason, the applicant must still undergo the evaluation in good faith. Thereafter, the applicant may raise the issue of noncompliance with Wis. Admin. Code § DWD 80.24 or other applicable law when the respondent attempts to use the statements in connection with the claim.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The ALJ's orders of July 15 and July 30, 2003 in this matter are set aside. Jurisdiction is reserved.

Dated and mailed October 16, 2003 
gohlca . wpr : 101 : 1  ND § 9.2  § 8.12  § 8.14 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney John Edmondson
Attorney Robert Zilske

N.B.:  On October 30, 2003, the commission issued an order amending the text in several paragraphs of the decision.  The decision is shown here as affected by those amendments.

Appealed to Circuit Court.

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(1)( Back ) There has been no hearing, so the "facts" are dependent largely on letters and other documents in the department's file.

(2)( Back ) Zilske letter dated July 2, 2003.

(3)( Back ) Edmonson letter dated July 7, 2003.

(4)( Back ) Edmonson letter dated July 8, 2003.

(5)( Back ) Zilske letter dated July 10, 2003.

(6)( Back ) The supreme court has held the statute governing judicial review of an administrative decision under the Wisconsin Administrative Procedure Act (Wis. Stat. Ch. 227) contemplates "a decision which must be supported by a record and be based on findings of fact and conclusions of law," though not necessarily rendered after a "contested case." Wisconsin Environmental Decade v. PSC, 93 Wis. 2d 650 (1980) on motion for reconsideration, 93 Wis. 2d 659a-659b. Worker's compensation cases, of course, have their own separate rules of procedure and are not governed by the Wisconsin Administrative Procedure Act. The commission's analysis turns more on the broad "any decision of the department" language in Wis. Stat. § 102.01(2)(dm) than the court's holding under Wis. Stats. Ch. 227. In any event, Falkner's letter can be viewed as supported by a record and based on findings of fact and conclusions of law.

(7)( Back ) Lawrence v. A-One Cleaning Services, (LIRC, November 19, 1997); Urban v. County of Door, WC Claim No. Claim No. 1998-066802 (August 27, 1999); Zastrow v. Universal Brixius, WC claim no. 1999-025230 (LIRC, July 24, 2003).

(8)( Back ) 102.13 (1) (c) So long as the employee, after a written request of the employer or insurer which complies with par. (b), refuses to submit to or in any way obstructs the examination, the employee's right to begin or maintain any proceeding for the collection of compensation is suspended, except as provided in sub. (4). If the employee refuses to submit to the examination after direction by the department or an examiner, or in any way obstructs the examination, the employee's right to the weekly indemnity which accrues and becomes payable during the period of that refusal or obstruction, is barred, except as provided in sub. (4). [Subsection (4) provides that a worker may not be compelled to attend an IME more than 100 miles away, not an issue here.]

(9)( Back ) See Zilske letter of July 28, 2003 (stating: "consistent with the provisions of Wis. Stat. § 102.13, it would appear as though Ms. Gohl's right to benefits has been barred as of 12:00 Noon on Friday");  Edmonson letter of August 5, 2003 (stating: "This is an appeal of a prehearing order which has suspended the claim and barred the applicant's right to compensation.")

(10)( Back ) Belknap v. Wisconsin Tissue Mills, WC Claim nos. 1989069201, 1998029690, 1995052832 (January 29, 1999), Neala Winchel v. Franciscan Sisters, WC Claim No. 93066564 (LIRC, October 31, 1996); and Cerny v. Stoughton Trailers, WC Claim No. 95017166 (LIRC, 1997); Jenkins v. Modern Building Materials, WC Claim No. 1995-067462 (LIRC, May 4, 2001). Regarding the right of DWD to control its calendar, see also Baldwin v. LIRC, 228 Wis. 2d 601, 615-17 (Ct. App. 1999).

(11)( Back ) DWD 80.24 Statement of employee. When an employee gives a statement signed by him, which in any way concerns his claim, a copy of such statement must be given to the employee. When such statement is taken by a recording device and is not immediately reduced to writing, a copy of the entire statement must be given to the employee or to his attorney within a reasonable time after application for hearing is filed, and the actual recording must be available as an exhibit if formal hearing is held. Failure on the part of the employer or insurance carrier to comply with the above will preclude the use of such statement in any manner in connection with that claim.

(12)( Back )  Wis. Stat. § 102.03(4) provides in relevant part:

"The right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury..."

(13)( Back )  Wis. Stat. § 102.13(2)(a) provides in relevant part:

"Notwithstanding ss. 51.30 and 146.82 and any other law, any physician, chiropractor, psychologist, dentist, podiatrist, hospital or health care provider shall, within a reasonable time after written request by the employee, employer, worker's compensation insurer or department or its representative, provide that person with any information or written material reasonably related to any injury for which the employee claims compensation."

uploaded 2003/10/20