ANTHONY OVERTON, Applicant

INTERFAITH OLDER ADULT PROGRAMS INC, Employer

HIGHLANDS INSURANCE COMPANY, 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.

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

Dated and mailed February 27, 2004
overto . wsd : 101 : 2  ND § 2.4   § 9.1 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Background

The employer and its insurer (collectively, the respondent) conceded that the applicant sustained a compensable injury on October 19, 2001, when he lifted a table while working as a custodian for the employer. The respondent has paid medical expenses as well as temporary disability for various periods through February 19, 2002, when it stopped paying based on its doctor's opinion that the applicant ended healing then without permanent or residual disability.

The applicant seeks compensation for additional temporary disability after February 19, 2002, as well as compensation for permanent disability and additional medical expense.

The ALJ decided for the employer, and dismissed the application. The applicant appealed.

After the applicant appealed to the commission, and after the parties filed their briefs on appeal, the insurer went into receivership in Texas.  On November 6, 2002, the Travis County, Texas, Circuit Court with jurisdiction over the receivership issued a permanent injunction, a copy of which the insurer's attorney forwarded to the commission. The injunction is addressed to the insurer, financial institutions, and "all other parties, including but not limited to: ... claimants ... and all other persons ... or other legal entities... asserting claims or causes of actions" against the insurer. Such parties are restrained and enjoined "from making any claim or prosecuting any action [or] appeal ... including administrative proceedings ... or obtaining any preference [or] judgment ... against the [insurer]."

2. The effect of the Texas injunction

For the sake of this appeal, the commission assumes the language of the Texas injunction is broad enough to cover the applicant's appeal to the commission. So the question is whether the commission must comply with the injunction of the Circuit Court for Travis County, Texas, in this case?

Wisconsin Statute § 806.24 (1)  sets out a general procedure by which foreign judgments, decrees and orders entitled to "full faith and credit" may be enforced in this state. Setting aside the question of whether the Texas injunction is entitled to "full faith and credit," the statutory procedure requires filing a copy of the judgment, decree or order with a clerk of circuit court here in Wisconsin. Wis. Stat. § 806.24(2).

A similar procedure is also set out specifically with respect to "foreign decrees" from "reciprocal states" issued "against any insurer authorized to do business in this state" under Wis. Stat. § 618.61. (2)   That would seem to cover the Texas injunction here, which names the insurer as a party defendant. However, in order for the foreign decree to be enforceable under Wisconsin Stat. § 618.61, (3)   a copy of the decree must be filed in Dane County Circuit Court.

Further, the insurance code also sets out a procedure to be followed in cases of insurance rehabilitation and liquidations specifically. See Wis. Stat. Chs. 645 and 646. Wisconsin Stat. Ch. 645, in particular, contemplates that foreign receiverships may affect claims by Wisconsin residents against insurers domiciled in other states. See for example, Wis. Stat. § 645.83 et seq. (which is in a statutory subchapter IV entitled "Interstate Relations.") However, the commission located nothing in Wis. Stat. Ch. 645 that requires Wisconsin claimants -- let alone an agency like the commission -- to follow the terms of an injunction issued by the courts of another state which has not been filed in this state.

To the contrary, Wis. Stat. § 645.05(1) authorizes receivers to obtain injunctions in this state when necessary to prevent the transaction of business or the prosecution of actions. Wisconsin Stat. § 645.05(2) directs receivers to obtain such an injunction from "any court outside of this state" when necessary. The implication is that for an injunction effective in another state, application must be made to a court of that state. Even if injunctions issued by courts of other states (particularly "reciprocal states") in insurance liquidations are entitled to "full faith" and credit," the law seems to require, at a minimum, that the injunctions be filed with a clerk of court in this state to be enforceable. See the discussion of Wis. Stats. § § 618.61 and 806.24, above.

In conclusion, the commission cannot conclude that the Texas injunction -- at least in its current form -- is enforceable in this state. Or put another way, if the insurer desires the commission to dismiss an otherwise valid and timely appeal that the commission is required by statute to address, it must present either a local court order or clear Wisconsin authority indicating the commission is bound by the Texas injunction.

Accordingly, the commission turns to the merits of the applicant's appeal.

3. The Merits.

After he hurt himself moving the table on October 19, 2001, the applicant went to an emergency room, where a back strain was diagnosed. He treated with his primary care doctor, Lubsey, who referred him to an orthopedist, Wichman. By December 7, 2001, Dr. Wichman found it difficult to understand the persistence of the applicant's symptoms. Dissatisfied with the physical therapy ordered by Wichman, the applicant returned to Lubsey, who referred him to Mellencamp, an orthopedist.

Dr. Lubsey, meanwhile, issued a medical report dated November 20, 2001. He noted the ongoing pain, for which he had referred the applicant to an orthopedist. Dr. Lubsey nonetheless stated expressly there would be no permanent disability (see exhibit E), though he later revised his opinion on permanent disability to "don't know" (exhibit D, practitioner's report dated April 2, 2002.)

While he was treating with Dr. Mellencamp, the respondent's medical expert, Dr. Robbins examined the applicant, on January 29, 2002. Dr. Robbins diagnosed a sprain and felt the applicant would plateau with no need for further treatment by February 19, 2002. Dr. Mellencamp concurred in this opinion, and in April 2002 completed a medical report which opined the applicant had ended healing with no permanent disability, which is consistent with an earlier practitioner's report at exhibit C.

The applicant then began treating with a pain specialist, Jeffrey Gorelick, M.D. Dr. Gorelick ordered an EMG, which turned out to be unremarkable. In a note dated July 15, 2002, Dr. Gorelick opined that permanent disability ratings would be indicated for the applicant's injury. Diagnosing chronic back and neck pain and sprain, the doctor allowed only sedentary work with frequent positional changes, and a five percent permanent partial disability at both the back and neck, for a total of 10 percent.

The applicant's claim for additional benefits beyond February 19, 2002 is first confronted with the fact that, in addition to an adverse opinion from the employer's doctor, a treating doctor (Mellencamp) opined he had plateaued with no permanent disability at that point. Treating doctor Lubsey, too, opined at one point that the applicant would have no permanent partial disability.

However, that is not the only problem with this case. In addition, the medical record is inconsistent about exactly what part of the spine the applicant hurt. The applicant reported pain in the thoracic spine, just below the scapula, to Dr. Mellencamp. Indeed, the applicant specifically denied a low back injury or any low back pain on that occasion. See exhibit C, report of Mellencamp dated January 15, 2002. See also exhibit 4, "summary of physical medicine evaluation" dated December 11, 2001, referring to scapular pain. On the other hand, a slightly later physical therapy examination placed the injury in the lower back.

See exhibit E, January 10, 2002 physical therapy evaluation. Similarly Dr. Lubsey's practitioner's report documents an acute LS [lumbosacral or low back] sprain.

Dr. Gorelick, for his part, rates disability for both a lumbosacral strain and a cervical sprain. This is glaringly at odds with Dr. Mellencamp's report which documents a thoracic injury and expressly states there was no low back or lumbosacral injury. The commission emphasizes that Drs. Mellencamp, Lubsey and Gorelick are all treating doctors.

The ALJ, in his decision, also noted the applicant had spine problems predating his injury. The ALJ quite clearly felt the applicant kept changing doctors until finally Dr. Gorelick rated permanent partial disability. The ALJ, in short, did not credit the applicant's complaints or at least his testimony about how they were related to the work injury on October 19, 2001. The commission sees no reason to disturb that credibility finding in this case.

The commission did consider the applicant's contention on appeal that more medical tests should have been ordered before the doctors declared him healed. Besides x-rays, the only test seems to be the EMG ordered by Dr. Gorelick. However, the applicant's inconsistent complaints may indicate why the treating doctors reasonably declined to order more testing. Further, Dr. Wichman noted no clear radicular pain, which may specifically explain why no MRI was ordered. Further, even Dr. Gorelick has not suggested an MRI.

In sum, it may well be that the applicant is prone to spine pain on a chronic basis. However, the record does not establish his chronic pain was caused by the October 19, 2001 work injury.

cc: 
Attorney David M. Turim
Attorney Michael D. Stotler

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(1)( Back ) That statute provides in relevant part: 

806.24 Uniform enforcement of foreign judgments act. (1) DEFINITION. In this section "foreign judgment" means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state. 

(2) FILING AND STATUS OF FOREIGN JUDGMENTS. A copy of any foreign judgment authenticated in accordance with the act of congress or the statutes of this state may be filed in the office of the clerk of circuit court of any county of this state. The clerk shall treat any foreign judgment in the same manner as a judgment of the circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner.

(2)( Back ) Worker's compensation insurers apparently are not excluded from the insurance code (Wis. Stat. Chs. 600 et seq.) generally, or Wis. Stat. § 618.61 specifically. See Wis. Stat. § 600.01. Further, Wis. Stat. Ch. 102 contemplates some degree of oversight of worker's compensation insurers under the insurance code. See for example Wis. Stat. § 102.31(4) and (6). At any rate, Wis. Stat. § 618.61 provides in relevant part: 

618.61 Reciprocal enforcement of foreign decrees. (1) DEFINITIONS. In this section: (a) "Foreign decree" means any decree or order of a court located in a reciprocal state, including a court of the United States located therein, against any insurer authorized to do business in this state. 

     (b) "Reciprocal state" means any state the laws of which contain procedures substantially similar to those specified in this section for the enforcement of decrees or orders issued by courts located in other states against any insurer authorized to do business in the reciprocal state, and which in turn recognizes this state as a reciprocal state under its law. 

(2) LIST OF RECIPROCAL STATES. The commissioner shall determine which states qualify as reciprocal states and shall maintain a list of them. 

(3) ENFORCEMENT OF WISCONSIN DECREES OR ORDERS. The attorney general upon request of the commissioner may proceed in the courts of this state or any other state to enforce an order or decision issued in this state in any court proceeding or in any administrative proceeding before the insurance commissioner. 

(4) ENFORCEMENT OF FOREIGN DECREES OR ORDERS. (a) Filing. A copy of any foreign decree authenticated in accordance with the statutes of this state may be filed in the office of the clerk of the circuit court for Dane County. The clerk, upon verifying with the commissioner that the decree or order qualifies as a "foreign decree", shall treat it in the same manner and it shall have the same effect as a decree of a circuit court of this state. It is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a decree of a circuit court of this state and may be enforced or satisfied in like manner. 

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