DARLENE R HOEFS, Applicant

MIDWAY HOTEL/PAYTONS RESTAURANT, Respondent

WAUSAU UNDERWRITERS INS CO, 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 last sentence in the second paragraph on page 8 of the ALJ decision, and substitute:

"Hoefs is thus entitled to compensation for permanent disability at five percent compared to amputation of the leg at the knee, the rating given by the applicant's treating physical medicine specialist, Dr. Dillon."

2. Delete the first full paragraph beginning at page 9 of the ALJ's decision and substitute:

"Based on her permanent partial disability at five percent compared to amputation at the knee, Hoefs is entitled to 21.25 weeks of permanent partial disability compensation at the weekly rate of $140 (two-thirds of her wage of $210), or $2,975. Dr. Dillon imposed final restrictions as of June 6, 2000, in his practitioner's report at exhibit A, and that date is adopted as the appropriate end of healing date. Therefore, Hoefs is entitled to additional compensation for temporary total disability from September 23, 1999 to June 6, 2000, a period of 36 weeks and four days, also at the rate of $140 per week, or $5,226.67. The compensation for permanent partial and temporary total disability under this order thus equals $8,201.67. However, the insurer has a prior overpayment of temporary total disability of $295.57, leaving a total of additional disability compensation under this order of $7,906.10.

"Hoefs' attorney is entitled to a fee, set under Wis. Stat. § 102.26 at twenty percent of the additional compensation, or $1,581.22. After deducting the fee, plus attorney costs of $275.06, the amount remaining to be paid Hoefs for disability compensation is $6,049.82."

3. Delete the second sentence of the last paragraph on page 9 of the ALJ's decision, and substitute:

"Hoefs has, however, incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury on her knee and leg from Marshfield Clinic in the sum of $14,128.74, of which the insurer paid $1,909.40, NCHPP/WPS paid $8,730.25, Medical Assistance paid $612.36, and $2,765.93 was written off. She has also incurred $629.88 in medical mileage for treatment at Marshfield Clinic (in both the Mosinee and Marshfield locations.)"

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

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

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

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Darlene R. Hoefs, Six thousand forty-nine dollars and eighty-two cents ($6,049.82) in disability compensation.
2. To the applicant's attorney, William A. Wulf, the sum of One thousand five hundred eighty-one dollars and twenty-two cents ($1,581.22) in fees and Two hundred seventy-five dollars and six cents ($275.06) in costs.
3. To NCHPP/WPS, Eight thousand seven hundred thirty dollars and twenty-five cents ($8,730.25) in reimbursement of medical treatment expense.
4. To Medical Assistance, Six hundred twelve dollars and thirty-six cents ($612.36) in reimbursement of medical treatment expense.
5. To the applicant, Six hundred twenty-nine dollars and eighty-eight cents ($629.88) in medical mileage.

Jurisdiction is reserved.

Dated and mailed October 21, 2003
hoefsda . wmd : 101 : 8    ND § 5.46  § 9.2 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Posture; ALJ decision.

The applicant claims disability, including permanent disability, from a knee injury and back injury. The employer and its insurer (collectively, the respondent) conceded the knee injury, but asserted it did not result in any permanent disability. The respondent also asserted the applicant did not sustain a compensable back injury. The ALJ found a compensable knee injury requiring surgery, but not a back injury. She awarded additional temporary disability compensation, compensation for permanent partial disability at seven percent compared to amputation at the knee, and medical expenses.

2. Respondent's petition for review.

The respondent filed a timely petition, asserting that the commission should adopt the opinion of its medical expert, Dr. Barron, that the work injury caused only a calf strain, rather than a torn meniscus requiring surgery. Short of that, the respondent asks the commission to reduce the permanent partial disability award to five percent. The respondent also asks the commission to deny the applicant's expenses for treatment with Frank Chiropractic -- which it asserts were not for the work injury -- and to rewrite the order so it does not have to pay amounts written off.

a. Torn meniscus or sprain.

Like the ALJ, the commission cannot credit Dr. Barron's opinion the applicant only sprained her calf. Regardless of what the applicant may have told the insurer's adjuster during an interview six weeks after the injury -- or what unspecified portion of her leg she may have pointed to during that interview -- the fact is that physician's assistant Gilles noted pain in and behind the knee and swelling in the knee in her treatment of the applicant on the day after the June 2, 1999 injury.

In fact, Ms. Gilles suspected a meniscus tear (not a muscle problem as the applicant erroneously told the adjuster) already on June 3, 1999. Ms. Gilles reiterated the complaints of knee pain and the observation of knee effusion on June 11. When Dr. Wisnefske saw the applicant on June 23, he too noted complaints of knee pain and he too diagnosed a meniscal tear.

Moreover, a meniscal tear and other knee problems were disclosed in surgery. Neither Ms. Gilles nor Dr. Wisnefske ever mentioned calf problems. The commission declines to elevate the applicant's self-description of a muscle problem above the contemporary medical records documenting a more serious problem warranting surgery. Like the ALJ, the commission credits Dr. Dillon's opinion stated at exhibit A over Dr. Barron's on this point.

b. Amount of PPD

The ALJ awarded permanent partial disability at seven percent compared to amputation at the knee, noting that the applicant did not have a good result from surgery. On this point, the ALJ noted a peroneal nerve stretch injury diagnosed by Drs. Rao and Vriesendorp-VanAssen. In addition, the commission notes that Wis. Admin. Code § DWD 80.32(4), sets a minimum five percent award for total or partial meniscectomy with excellent to good results.

However, in his practitioner's report at exhibit A, treating physical medicine specialist Dillon explained that his five percent rating took into account the applicant's off and on pain, and indicated he was cautiously optimistic. Dr. Rao indicated that he believed the applicant's peroneal stretch injury would heal with time. Exhibit A, August 25, 1999 report of Rao. The synopsis of the hearing testimony suggests that at least some of the applicant's residual symptoms in her
leg (numbness and a feeling as if her legs are in knots) are associated with her back condition, which the ALJ found was pre-existing and not related to the work injury. Finally, on appeal, the applicant acknowledges that the record supports at most a five percent award at the knee. Consequently, the commission reduced the permanent partial disability award to five percent. (1)

c. Chiropractic expense.

The commission also modified the ALJ's award to eliminate payment of the chiropractic expense. These are clearly related to treatment for the applicant's back condition, which the ALJ found not work-related, not the knee injury. First, the itemized statement in Exhibit C supporting the chiropractic bill lists diagnosis of sprain and strain lumbar, subluxation of lumbar vertebra, and sciatica -- all back or lumbar spine conditions. Second, the treatments listed in the itemization uniformly refer to spinal or lumbar x-rays, ultrasound, or electrical stimulation. Third, Dr. Dillon's February 2, 2000 note strongly suggests the treatment with Dr. Frank was for the back.

d. Written-off medical expenses.

On appeal, the respondent asserts that because Marshfield Clinic has written off part of its bill, it is admitting that only the bill as adjusted was reasonable in amount. Because an employer is liable only for reasonable medical expenses under Wis. Stat. § 102.42(1), and because the commission has the authority to decide reasonableness of fees under Wis. Stat. § 102.18(1)(bg), it follows from the respondent's argument that the commission should limit the award of medical expense to the Marshfield Clinic to the charges that were not written off. The applicant takes no position on this issue.

The commission agrees that the respondent need not reimburse the Marshfield Clinic for the amounts it has written off. Under Wis. Stat. § 102.42(1), an employer has the duty to supply necessary medical treatment or pay the reasonable expense of such treatment. "Expense" in this context means the cost or price to the applicant of the treatment. The record in this case does not indicate why Marshfield Clinic wrote off a portion of the expenses; there is no indication that Marshfield Clinic regarded the expense as uncollectable, as for example might occur if the respondent had refused payment and the applicant declared bankruptcy. On this record, then, the commission concludes the charges, after deducting the written off amounts, reflect the expense of the actual cost or price in terms of the Marshfield Clinic treatment.

3. Applicant's assertion of ALJ error

The last issue is the applicant's assertion that the ALJ improperly denied her claim for compensation for a back injury. The applicant did not file a timely cross-petition, a procedure contemplated under Wis. Admin. Code LIRC § 1.026. The respondent contends the commission therefore should not consider the applicant's argument the ALJ erred regarding the back claim. The applicant, on the other hand, asserts the commission review under Wis. Stat. § 102.18(3) is not limited to issues raised by the parties in petitions, but may review the whole case on appeal. In addition, the applicant's attorney asserts he was lulled into not petitioning by a promise from the employer's attorney that he would provide advance notice if the employer appealed. The respondent denies any agreement regarding prior notice of appeal.

The commission need not resolve what was agreed between the parties concerning notice of appeal. The time deadlines for appeal are jurisdictional; the commission must dismiss a late petition, unless good cause is shown that the failure was beyond the late petitioner's control. See Wis. Stat. § 102.18(3). Notwithstanding its assertion of a promise or agreement from the other side, the applicant has not shown a timely appeal was beyond anyone's control. The commission therefore declines to treat the applicant's arguments as part of an excusably late petition for review.

However, the applicant correctly points out that the commission's review authority is not restricted to arguments made by the parties, timely or not. As the court of appeals, citing Wis. Stat. § 102.18(3), has noted:

LIRC, not the ALJ, bears the ultimate responsibility for finding facts.... The position taken by the parties at the administrative proceedings does not control the agency's ultimate resolution of the case.... LIRC has the duty to "find the facts and determine the compensation irrespective of the presentation of the case by the attorneys." [Citations omitted.]

UPS v. Lust, 208 Wis. 2d 306, 313-14 (Ct. App., 1997). See also: Nystrom v Industrial Commission, 196 Wis. 406, 409 (1928). On the other hand, the commission has traditionally accorded assertions of error not raised in a timely petition relatively less weight for the reasons explained in Deborah Polakowski v. Clearview Nursing Home, WC case no. 96028025 (LIRC, December 17, 1997). See also: Robert Wilson v. Urban Artifacts Inc., WC Claim No. 1998000072 (LIRC, February 24, 1999), aff'd sub nom. Wisconsin Worker's Compensation Uninsured Employer's Fund v. Urban Artifacts, Case No. 99-2413 (Wis. Ct. App., May 9, 2000).

In this case, the commission must reject the applicant's argument that her back condition is work related, regardless of how much weight is given to her argument on the issue. The treating doctors do not all agree the applicant injured her back on June 2, 1999. Dr. Lao opined that the non-knee related leg complaints (numbness and a knotting feeling) are from a peroneal nerve problem. Dr. Dillon originally indicated the leg complaints were of uncertain etiology. Further, as the ALJ pointed out, the applicant had a history of back problems, and was restricted from second floor work due to back complaints even before the work injury. Under these circumstances, even if the applicant had filed a timely cross-petition, the commission would have affirmed the ALJ's finding on this issue.

cc:
Attorney William A. Wulf
Attorney Mark Parman

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(1)( Back ) The commission also modified the temporary disability award. While the applicant reached a healing plateau on June 6, 2000, the department apparently calculated benefits based on a June 16, 2000 healing plateau date. 

uploaded 2003/10/27