CHERYL J VILLWOCK , Applicant
TRINITY MEMORIAL HOSPITAL OF CUDAHY
TRINITY MEMORIAL HOSPITAL OF CUDAHY
The procedural history and posture of this case is set out below. Based on its review, the commission makes the following:
1. Underlying facts and posture.
The applicant (Villwock) filed an application for hearing seeking compensation arising from a 1993 neck injury. The matter was initially heard in May 1999 by Thomas Jones, an administrative law judge (ALJ) from the Worker's Compensation Division of the Department of Workforce Development. ALJ Jones found a compensable injury, and the commission affirmed on that aspect of the case.
However, the parties also disputed whether the self-insured employer could be held liable for certain items of treatment expense under the choice of practitioner rules at Wis. Stat. § 102.42(2). That statute provides an injured worker is limited to two choices of treating doctors, and referrals from or partners of those two choices, but that an insurer is not liable for the expense of treatment with doctors beyond those two choices or the referral chains from those two choices. (1)
At the May 1999 hearing before ALJ Jones, there was testimony and evidence indicating that Villwock had originally treated with her family doctor (identified in the record as Sirus or sometimes Cyrus, hereafter Cyrus) and his partner (Steinman). Dr. Cyrus then referred Villwock to Dr. Krug, who is evidently an orthopedist or neurologist.
Villwock was dissatisfied with her treatment from Dr. Cyrus or Dr. Krug. On her own initiative, without a referral, she began treating with Dr. Tsuchiya. She considered Dr. Tsuchiya a "neck specialist" and had treated with him before. Dr Tsuchiya referred Villwock to Dr. Walsh, who referred her to Dr. Vasudevan, who referred her to a psychiatrist, Dr. Kim.
Thereafter, Villwock began treating with a family doctor, Aldred. Dr. Aldred, in turn, referred her to a pain specialist, Heydarpour, who referred her to a neurosurgeon, Maiman, who eventually performed surgery.
Villwock's position was that she was referred to Dr. Aldred by Dr. Kim, so that the treatment with Drs. Aldred, Heydarpour, and Maiman is compensable as part of the referral chain arising from Villwock's second choice of doctors beginning with Dr. Tsuchiya. The employer counters that the treatment with Dr. Aldred was a third choice, effectively starting a third referral chain for which it is not liable under Wis. Stat. § 102.42(2).
In other words, the issue is whether Villwock made only two "choices" of treating doctors, giving rise to two referral chains (as Villwock claims):
or three choices with three referral chains (as the employer claims):
If there were three choices, of course, the treatment under the third choice would not be compensable.
ALJ Jones found that the treatment with Dr. Aldred was a third choice starting a third referral chain. However, the commission after affirming ALJ Jones' decision on the causation and disability issues, remanded for further hearing on the issue of whether Dr. Kim referred Villwock to Dr. Aldred within the meaning of Wis. Stat. § 102.42(2).
ALJ Schneiders held the hearing on the referral issue in September 2000. She heard testimony from both Dr. Kim and Dr. Aldred. On the general question of what doctors consider a "referral," both doctors admitted that Dr. Kim did not really "refer" Villwock to Dr. Aldred in the strict "generalist-to-specialist-for-definitive-treatment" definition that doctors and dictionaries formally employ. However, Dr. Aldred, in particular, indicated that the doctors sometimes use a looser definition of "referral" that covered the situation between himself and Dr. Kim.
Regarding the specific facts in this case, Dr. Kim testified that during a discussion with Villwock, a medical question arose that he, a psychiatrist, felt would be better addressed by a family or primary care doctor. Transcript, page 9. He became aware she did not have a family or primary care doctor. Dr. Kim testified he then provided her with the names of three or four doctors whom he regarded as good clinicians. Transcript, page 9. He added that he regarded it as important she have a primary care doctor for good medical backup, transcript, pages 17-18, 27. He hoped she would see one of the doctors he named. Transcript, page 29.
Villwock did not testify at the remand hearing. However, her recollection on this point is memorialized in a letter to Dr. Kim signed by Villwock, which the employer introduced into evidence without objection from Villwock. September 2000 hearing, exhibit 4. Villwock recalled that in January or February 1995, Dr. Kim brought up the question of whether she had a family doctor. She told him she did not, as she had fired her last doctor for treating her rudely and inappropriately. She added she did not know who to see, but wanted to see someone as her neck and arm pains were increasing. He recommended a female doctor, but when Villwock contacted her office, she was told that doctor had left and Dr. Aldred was taking new patients. Villwock indicated in her letter that Dr. Kim told her to go ahead and treat with Dr. Aldred.
ALJ Schneiders found that Dr. Kim "referred" Villwock to Dr. Kim, and the commission affirmed. The commission's decision emphasized Dr. Kim's desire to have Villwock seen by a competent family doctor; prior cases in which the commission found "referrals" in situations falling short of the dictionary or formal definition of that term; and Supreme Court and Court of Appeals holdings that the statutes providing for reimbursement of medical expense should be liberally construed. See: UFE, Inc. v. LIRC, 201 Wis. 2d 274, 288-89 (1996); Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 622 (Ct. App., 1998). The commission's decision was affirmed at circuit court.
2. Remand order from the Court of Appeals; positions of the parties on remand.
The case went to the Court of Appeals. The Court of Appeals focused on the concern with "doctor shopping" that underlies restrictions on choices of doctors in workers compensation cases. See: Hermax, at 220 Wis. 2d 622-23. It therefore concluded the commission decision was incomplete. The Court of Appeals directed the commission to enter a new decision after considering:
(1) Villwock's decision to fire Dr. Tsuchiya, and
(2) Villwock's decision to wait one year between soliciting a recommendation from Dr. Kim for a new family doctor and acting on the recommendation.
The court noted that these facts speak both to the core issue of whether Dr. Kim's recommendation was a referral, and to whether Villwock's conduct was "unlimited doctor shopping." The court concluded:
"LIRC erred in its application of Wis. Stat. § 102.42(2)(b) [sic] to the undisputed record when it concluded that Dr. Kim referred Villwock to Dr. Aldred and that Villwock was not engaged in 'doctor shopping' when she requested the name of a new family physician without the agency first taking into account the nature and timing of Villwock's conduct related to the transaction."
The parties requested briefing to the commission following the remand from the Court of Appeals. Neither party suggests that further hearing is necessary to aid the commission in complying with the remand order. After going through the record of both the May 1999 and September 2000 hearings, the commission agrees further hearing is not necessary.
In its brief following remand, the employer asserts that the commission's assessment of whether a referral occurred must consider the "mindset" of the parties involved; that is Villwock's motivation in seeking a recommendation of another primary care doctor from Dr. Kim, the actual intention of Dr. Kim in providing the recommendation, and the circumstances regarding Villwock's election to follow the recommendation.
Regarding Villwock's motivation in seeking the recommendation from Dr. Kim, the employer asserts that she did not like her prior family doctor for unknown reasons and wanted to try another. The employer also observes that since treating with Dr. Aldred, Villwock has been receiving narcotic pain medication.
Regarding Dr. Kim's intention, the employer observes that Dr. Kim felt it important that Villwock see a family doctor, and hoped she would after firing her prior family doctor. This, the employer asserts is less than a referral. Indeed, the employer argues that Dr. Kim did not even provide Dr. Aldred's name to Villwock, as indicated by Villwock herself. September 2000 hearing, exhibit 4.
Regarding Villwock's actions in following through with the referral, the employer points out that Villwock did not follow through for over a year after first discussing the matter with Dr. Kim, so her intention "in seeking the recommendation from Dr. Kim was obviously not to address any immediate or pressing medical concern she had...." (2)
In her brief, Villwock points out that the Court of Appeals erred in finding that Villwock fired Dr. Tsuchiya, when in fact it was Dr. Cyrus she fired. Villwock goes on to assert that she fired Dr. Cyrus simply because she did not feel comfortable with his treatment, finding it ironic that the employer should question her motives in changing treating doctors as it changed examining physicians itself. Villwock pointed out that she did not fire any other doctors, indicating she was not really doctor shopping.
Villwock's brief also explains her delay in beginning treatment with Dr. Aldred as due in part to the fact the employer had cut off her treatment expense, and also that it takes new patients a while to get in with a doctor.
3. Discussion.
a. Decision to fire Tsuchiya.
On remand, the Court of Appeals first directed the commission to consider "Villwock's decision to fire Tsuchiya." However, Villwock did not fire Dr. Tsuchiya, nor was Dr. Tsuchiya a family doctor like Dr. Aldred. Villwock did admit firing Dr. Cyrus in her letter to Dr. Kim. See September 2000 hearing, exhibit 4. The only other reference to "firing" the commission located in the record of either hearing is in an April 15, 1996 note from Vasudevan. May 1999 hearing, exhibit 9. (3) According to that note, Villwock told Dr. Vasudevan "I fired my previous family doctor."
At the first hearing before ALJ Jones, Villwock testified she treated with Dr. Cyrus who referred her to Dr. Krug; that she left Dr. Krug to see a "neck specialist;" that she did not ask for a referral because she was not aware of the two-doctor-choice rule under Wis. Stat. § 102.42(2); that she then treated with Dr. Tsuchiya; and that Dr. Tsuchiya sent her to Dr. Walsh because he (Tsuchiya) no longer did surgery. September 2000 hearing exhibit Dept. 3, (Synopsis from May 1999 hearing pages 2-3.) In his notes Dr. Vasudevan refers to Dr. Tsuchiya as a neurosurgeon. See for example May 1999 hearing exhibit 9, notes of Vasudevan dated May 19, 1994 and April 15, 1996. In other words, Dr. Tsuchiya is a surgeon (specifically a neurosurgeon), not a family doctor, and Villwock did not fire him but ceased treating with him when he referred her elsewhere.
Further, the record indicates why Villwock sought treatment with Dr. Tsuchiya when she became dissatisfied with the treatment she received in the Cyrus-Steinman-Krug chain. According to Dr. Vasudevan's May 19, 1994 note (May 1999 hearing exhibits K and 9), after Villwock tried conservative care with Dr. Krug, "on her own she saw Dr. Tsuchiya, a neurosurgeon, who had operated on her head before."
The commission emphasizes these facts because it does not believe the Court of Appeals inadvertently referred to firing Dr. Tsuchiya when it meant to refer to firing Dr. Cyrus. Rather, the commission assumes the Court of Appeals believed Villwock fired both Drs. Cyrus and Tsuchiya. The Court of Appeals decision states:
"On the day of her injury, Villwock sought treatment from an associate of her family physician. Subsequently, Villwock changed physicians and commenced treatment under Goro Tsuchiya, M.D. Thus, began a string of referrals to other physicians, including J.S. Kim, M.D., a psychiatrist whom Villwock saw as part of her pain rehabilitation treatment. After Villwock completed the pain rehabilitation treatment program she continued to see Dr. Kim. In early 1995, Villwock informed Dr. Kim that she had fired Dr. Tsuchiya and wanted Dr. Kim to recommend a new primary care physician.... [Emphasis added]"
Trinity Memorial Hospital, et al. v. Villwock, et al., case no. 02-3187 (Wis. Ct. App. May 23, 2003), page 2.
It is reasonable to conclude, then, that the Court of Appeals was under the misimpression that Villwock switched from -- or fired -- two doctors (Cyrus and Tsuchiya) when she only fired one (Cyrus). Villwock, of course, has a statutory right to a second choice of doctor under Wis. Stat. § 102.42(2), thus she has a statutory right to change -- or "fire" -- treating doctors once without referral.
It is also clear that the Court of Appeals understood that Dr. Kim (and if a referral is found, Dr. Aldred) was in the referral chain started with the choice of Dr. Tsuchiya. The Court of Appeals thus may have placed special significance on why Villwock discontinued treating with Dr. Tsuchiya, as he was the origin of the very referral chain Villwock is asserting to get the Aldred-Heydarpour-Maiman expenses paid.
In short, this is not a case where Villwock fired family doctor Cyrus, replaced him with family doctor Tsuchiya, then fired Tsuchiya, and then replaced Tsuchiya with family doctor Aldred. Villwock never fired Dr. Tsuchiya. Rather, dissatisfied with the treatment she was getting from the Cyrus-Steinman-Krug chain, Villwock made her second choice contemplated in Wis. Stat. § 102.42(2). She quite reasonably chose to seek treatment instead with neurosurgeon Tsuchiya, from whom she had had prior treatment. Her treatment with Dr. Tsuchiya ended only because he referred her to another surgeon.
The choice to stop treating with Dr. Cyrus to commence treatment with Dr. Tsuchiya may be regarded as "doctor shopping" in its broadest sense. If so, the commission concludes it is the type permitted by Wis. Stat. § 102.42(2). Indeed, it is the choice of an informed consumer or patient to return to a provider who previously rendered care she apparently regarded as satisfactory.
b. The delay in treating beginning treatment with Aldred
The Court of Appeals also directed the commission to consider "Villwock's decision to wait one year between soliciting a recommendation from Dr. Kim for a new family doctor and acting on the recommendation."
The commission first addresses the facts underlying Villwock's solicitation of a recommendation for a new family doctor from Dr. Kim. According to Dr. Kim's testimony, a medical -- as opposed to psychiatric -- question arose during his treatment of Villwock; he told her she needed evaluation by her primary care doctor; she told him she had no primary care doctor; and he (Kim) provided her with some names including Dr. Aldred's. Transcript, page 9. (4)
Villwock's version of events is that Dr. Kim initially gave the name of a female primary care doctor, then told Villwock to see the female doctor's colleague, Dr. Aldred, when she (Villwock) informed Dr. Kim that the female doctor had left town. However, Villwock also indicated that Dr. Kim first brought up the question of Villwock's family or primary care doctor. See September 2000 hearing, exhibit 4.
In other words, the question of needing a family or primary care doctor was raised in first instance by Dr. Kim when Villwock asked Dr. Kim for medical advice and Dr. Kim declined to provide it himself. The implication of this is clear. Treatment with Dr. Aldred is less likely to be "doctor shopping," much less "unlimited doctor shopping," if Dr. Kim, rather than Villwock, first raised the necessity or desirability of treatment with a primary care doctor.
Turning more directly to the reason why Villwock did not see Dr. Aldred until February 1996 even though Dr. Kim had recommended him in early 1995, the record indicates that Villwock learned she was pregnant shortly after Dr. Kim made the recommendation, and gave birth several months later.
Specifically, Villwock told Dr. Kim in March 1995 that she suspected she was pregnant, and Dr. Kim referred her to an OBGYN for a pregnancy test which turned out to be positive. She was five months pregnant on June 12, 1995, which would put her due date in October 1995. Dr. Kim's notes indicate Villwock in fact followed with an OBGYN and a neurologist during her pregnancy. May 1999 hearing, exhibit 8, Kim's summary and progress note dated June 15, 1996. The pregnancy went to term, and a daughter was born in October 1995. May 1999 hearing exhibit 9, note of Vasudevan, dated April 15, 1996 (stating "she apparently became pregnant and now has a six month old daughter.") Not immediately starting treatment with a new family doctor under these circumstances is understandable, especially as Villwock had apparently not seen a family or primary care doctor since she had "fired" Dr. Cyrus in 1993, over a year before Dr. Kim gave her Dr. Aldred's name.
Under these circumstances, the commission cannot conclude that the delay in acting on Dr. Kim's recommendation indicates Villwock was doctor-shopping. Indeed, if Villwock were really trying to get unnecessary treatment, or shopping around for a favorable medical opinion, it seems unlikely she would have delayed by waiting. Certainly, if Villwock had actually anticipated that Dr. Aldred would prescribe narcotics and desired to treat with him for that reason as the employer implies in its brief, one would expect she would have sought his treatment immediately.
c. Conclusion.
The commission maintains its conclusion that Dr. Kim referred Villwock to Dr. Aldred within the meaning of Wis. Stat. § 102.42(2)(a). Additionally, the commission concludes, after considering the facts set out in the remand order from the Court of Appeals, that Villwock did not engage in "doctor shopping," at least not the type of "doctor shopping" prohibited under Wis. Stat. § 102.42(2). (5)
In sum, the medical expense from treatment with Drs. Aldred, Heydrapour, and
Maiman is not beyond the second choice under Wis. Stat. § 102.42(2)(a),
and is therefore compensable to the extent it was rendered to cure and relieve the
effects of the work injury.
4. Specific items of expense; award.
The last issue is whether all of the claimed expense was incurred to cure and relieve the effect of the work injury. The commission's findings on this issue in its March 6, 2002 decision were not questioned by the Court of Appeals, and are reiterated.
At the hearing before ALJ Jones, the parties agreed to the post-hearing submission of medical expense itemization. On June 8, 1999, then, Villwock submitted an updated itemized statement of treatment expense on form WC-3. On June 16, 1999, the employer submitted a letter objecting to numerous specific items of the expenses claimed by Villwock on the ground that they were not incurred to treat Villwock's work injury.
Because many of the specific items objected to arose from treatment after the disputed referral from Dr. Kim, the commission did not address the objections in its May 5, 2000 decision in this case. Because ALJ Schneiders believed the objections fell outside the narrow scope of the remand order on the referral issue, she likewise did not address the objections in her October 2, 2000 decision. At this point, however, the employer's objection to the specific items of expense claimed is now ripe for decision.
In the June 16, 1999, letter setting out its objections, the employer concedes that the expenses claimed for treatment with Milwaukee Radiologists, Froedtert Memorial Lutheran Hospital, EMPI, and Bluemound Magnetic Imaging, were incurred to cure and relieve the effects of the work injury, but disputed these expenses on the referral issue resolved in Villwock's favor. The only objection stated with respect to the claimed expenses from Walgreens is the referral issue resolved in Villwock's favor. Accordingly, these expenses shall all be paid.
In the June 19, 1999 letter, the employer also challenged specific items of expense
from the Medical College of Wisconsin, CMG United Internists, and
Dr. Heydarpour. Villwock has not responded to the employer's objections.
However, the commission cannot resolve these objections on the record as it
stands, because (a) the commission is not certain how the objections to the
treatment expense affect the amounts paid on the bills by nonindustrial insurers
(Bankers Life and Aetna), for which the nonindustrial insurers would be entitled to
reimbursement under Wis. Stat. S 102.30(7); and (b) in some cases, the amount of
the expenses to which the employer objected actually exceeds the expenses
claimed by Villwock. Jurisdiction shall be retained with respect to these bills,
therefore, to permit further appropriate action by the department on the bills,
including hearing and decision if necessary, if the parties cannot resolve them.
The employer also contested pharmacy "charges totaling $312.10 for Tegretol prescriptions," and co-pays of $27.00 for that medication, as not related to Villwock's work injury. Villwock has not responded to this objection, and it is definite enough to permit resolution. Accordingly, $312.10 shall be deducted from the total pharmacy claim, with $27 deducted from Villwock's out-of-pocket pharmacy expense and $285.10 from the amount to be reimbursed to Bankers Life.
The employer also challenged $4.80 in mileage expense. Again, Villwock has not responded. Accordingly, this amount shall be deducted from the award for medical mileage.
In sum, then, Villwock incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury as follows: from Milwaukee Radiologists, $1,056.20, of which Bankers Life paid $694.07, and $362.13 remains outstanding; from Froedtert Memorial, $25,035.06, all of which Bankers Life paid; from EMPI, Inc., $1,312, of which Villwock paid $259.86 and $1,052.50 remains outstanding; from Bluemound Imaging, $2,563, of which Bankers Life paid $1,045 and $1,518 remains outstanding; from Walgreens, $207, all of which Villwock paid; from "pharmacy" $2,885.26 (after deducting the $312.10 challenged by the employer), of which Villwock paid $243, and Bankers Life paid $2,642.26. In addition, Villwock incurred $13.92 in medical mileage (after deducting the $4.80 challenged by the employer).
Consistent with the terms of the commission's May 5, 2000 order, this order shall be left interlocutory to permit claims for additional compensation, including additional medical expense. This order is also left interlocutory to permit resolution of the current medical expense issues identified above.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of Administrative Law Judge Nancy Schneiders dated October 2, 2000, are modified to conform to the foregoing and, as modified, are affirmed.
Within thirty days, the self-insured employer shall pay all of the following:
1. To Milwaukee Radiologists, Three hundred sixty-two dollars and thirteen cents ($362.13) in medical treatment expense.
2. To EMPI, Inc., One thousand fifty-two dollars and fifty cents ($1,052.50) in medical treatment expense.
3. To Bluemound Imaging, One thousand five hundred eighteen dollars ($1,518) in medical treatment expense.
4. To Bankers Life, Twenty-nine thousand four hundred sixteen dollars and thirty-nine cents ($29,416.39) in reimbursement of medical treatment expense paid.
5. To the applicant, the sum of Seven hundred nine dollars and eighty-six cents ($709.86) in out-of-pocket medical treatment expense and Thirteen dollars and ninety-two cents ($13.92) in medical mileage.
Jurisdiction is reserved to permit future orders and awards as are consistent with the terms of this order.
Dated and mailed January 20, 2004
villwoc . wrr : 101 : 8 ND § 5.46 § 5.48
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Charles J. Graf
Attorney James P. Reardon
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(1)( Back ) Wis. Stat. § 102.42(2)(a) (1993-94) provides: "102.42(2)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employe his or her choice of any physician, chiropractor, psychologist, dentist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employe may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employe shall be given his or her choice of attending practitioner at the earliest opportunity. The employe has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner." Unapproved treatment expense beyond the second choice is noncompensable. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996); Ruby Rodgers v. WA Krueger Co. Brookfield, WC case no. 94036726 (LIRC, December 4, 1996).
(2)( Back ) The employer's brief also suggests that Villwock has obtained too much treatment for what it considers a questionable work injury. However, the employer did not appeal the commission's first decision that resolved the causation issue in Villwock's favor. Nor did it dispute the necessity of treatment using the mechanism available under Wis. Stat. § 102.16. Instead, it chose to attack the medical expenses on the referral issue now before the commission, which is analytically separate from the questions of causation and whether the treatment was excessive in an objective medical sense.
(3)( Back ) Citing to the record of the first hearing before ALJ Jones in May 1999 raises an evidentiary concern. At the second hearing in September 2000, ALJ Schneiders took administrative notice of the synopsis from the first hearing before ALJ Jones, but not the actual exhibits from that hearing. However, in order to consider fully the facts directed to its attention by the Court of Appeals, the commission considered the record of the May 1999 hearing before ALJ Jones. Further, both parties refer to the exhibits from record of the May 1999 hearing before ALJ Jones in their briefs to the commission following the Court of Appeals remand. The commission therefore concludes it may fairly take administrative notice of them at this point.
(4)( Back ) Dr. Kim's precise testimony on cross-examination by the employer's attorney was: "....I do know that the discussion occurred that she appeared in need of some evaluation from medical treatment for primary care issue, namely, that it's nothing in psychiatric care per se. And the discussion occurred in such a way that I am not really able to provide as good advice at that point other than you need a good evaluation by primary physician. "And throughout the process that she -- I was of the knowledge that at that point she doesn't have anybody. Therefore, I give a name, and it was not -- she was given 3, 4 names, that she picks one of them, and it happened to be Dr. Aldred. And the names I provide is a simple reason is that all the physicians I provide is a good clinician and good physician...." Transcript, page 9.
(5)( Back ) In addition, the process of obtaining a doctor's referral under Wis. Stat. § 102.42(2)(a) itself places some limits on doctor shopping. A doctor may decline to refer; if not, presumably a doctor would only refer to another competent doctor, not one who would overtreat an injured worker for improper reasons.
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