LAURA ELSINGER, Applicant
AMCAST INDUSTRIAL CORPORATION, Employer
AMCAST INDUSTRIAL CORPORATION, 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 fifth full paragraph starting on page 11 of the ALJ's decision, and substitute:
"In his practitioner's report at exhibit O, Dr. Chamoy stated the applicant's prognosis was good, and that he expected no further treatment, referring back to his January 9, 2003 treatment note. While the doctor released her from treatment after that visit, his treatment note does document then-current complaints of pain anterior to the lateral epicondyle. The doctor recommended the applicant wear a brace and avoid lifting in a pronated position.
"On this record, the additional treatment resulting in additional disability cannot be ruled out. While the doctor may not have felt at that time that further treatment was needed on a regular basis, his final note does document continuing symptoms requiring her to wear a brace and avoid certain postures. Accordingly, this order shall be left interlocutory to permit the payment of compensation for disability and medical expense that may arise in the future."
2. Delete the ALJ's order and substitute the commission's Interlocutory Order set out below.
The findings and order of the administrative law judge, as modified, are affirmed.
Within 30 days, the self-insured employer shall pay all of the following:
1. To the applicant, Laura Elsinger, Ten thousand five hundred sixty-one dollars and fifty-nine cents ($10,561.59) in disability compensation.
2. To the applicant's attorney, Israel Ramon, the sum of Two thousand seven hundred eighty-three dollars and eighty-four cents ($2,783.84) in fees and Five hundred seventy-three dollars and seventy-eight cents ($573.78) in costs.
3. To Physicians Accounting, Four hundred forty dollars ($440.00) in medical treatment expense.
4. To Advanced Health and Wellness, One thousand, five hundred forty- nine dollars and fifty-five cents $1,549.55) in treatment expense.
5. To Hand Surgery, Ltd., Five thousand, one hundred sixty dollars and thirty-nine cents ($5,160.39) in treatment expense.
6. To Harrington Benefits, Twenty-two thousand, fifteen dollars and seventy-six cents ($22,015.76) in reimbursement of medical treatment expenses paid.
7. To the applicant Two thousand, three hundred and twelve dollars and eleven cents ($2,312.11) in out-of-pocket medical expense.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed October 27, 2004
elsingl . wmd : 101 : 1 ND § 8.33 § 10.9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Overview.
The applicant sought compensation for epicondylitis/cubital tunnel syndrome affecting the left elbow after an October 10, 2000, injury. She eventually underwent surgery. Both the treating doctor and doctor retained by the self- insured employer agreed that the post-surgery permanent disability was two percent. Causation, however, was at issue, as was a question of whether the applicant exceeded her two choices of practitioner.
The ALJ resolved the causation dispute in the applicant's favor, by crediting the opinion of the treating surgeon, Lewis Chamoy, M.D., over that of the two employer-retained experts, Richard Lemon, M.D., and Sean Keane, M.D. He also found the employer had agreed to treatment by the third choice doctor. Accordingly, the ALJ awarded temporary disability, permanent partial disability, the medical expenses outstanding to providers, and the applicant's out-of-pocket medical expenses.
The applicant appealed. She seeks an interlocutory order, and also an order that the self-insured employer reimburse her non-industrial health insurer for the expenses it paid for the treatment for her work injury.
2. Interlocutory order.
The standard for deciding whether to reserve jurisdiction is discretionary. Wisconsin Stat. § 102.18(1)(b) provides that "pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders, and awards.." In general, an interlocutory 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, when the words "in its discretion" were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included an explanatory note 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.
In this case, while Dr. Chamoy did not expect further treatment and said the prognosis was good, the applicant had undergone surgery and was left with permanent residuals. As of the last pre-hearing doctor's visit, she still had continuing symptoms and in fact Dr. Chamoy told her to avoid certain postures to wear a brace as a result. The commission understands why the presiding ALJ -- acting in his discretion -- declined to reserve jurisdiction on that record. However, the commission -- exercising its discretion -- concludes otherwise, (1) and so amended the ALJ's order.
3. Reimbursement of the non-industrial insurer.
The next issue is whether to reimburse the non-industrial (that is the non-workers compensation) insurer, Harrington Benefits, for its medical expense payments. Following the final day of hearing, the ALJ left the record open to permit the applicant to submit a final amended "Medical Treatment Statement" on form WKC- 3. The final statement so submitted by the applicant on May 1, 2003, lists treatment expense incurred by provider; payments made to the provider by the applicant, the employer, and Harrington Benefits; amounts written off or adjusted from the bills; and the outstanding amounts, if any, owed to the provider. In his order, the ALJ paid the outstanding expenses and the applicant's out-of-pocket expenses, but did not order payment of the $22,015.76 paid in total by Harrington Benefits to various providers towards the claimed treatment expenses.
The expenses at issue were reasonable and necessary as a result of the work injury. Indeed, the employer does not contend otherwise. Rather, the employer raises an argument based on the statute that allows reimbursement of medical expenses paid by non-industrial insurers, Wis. Stat. § 102.30(7), which provides:
102.30(7)(a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
(b) An insurer who issues a nonindustrial insurance policy described in par. (a) may not intervene as a party in any proceeding under this chapter for reimbursement under par. (a)
In this case, the employer contends, the applicant has not proven the payments made by Harrington Benefits were improper -- that is, that the Harrington Benefits policy did not cover the injuries at issue. Nor, the employer asserts, did the applicant ever consent at the hearing to have Harrington Benefits reimbursed. So, the employer argues, it should not have to pay the $22,015.76.
The commission cannot agree.
First, the WKC-3 form refers to Wis. Stat. § 102.17(8), and that statute refers to medical expenses and incidental compensation under Wis. Stat. § 102.42 claimed by the injured employee. By preparing a WKC-3 listing the payments made by Harrington Benefits, the commission concludes the applicant implicitly consented to its reimbursement, at least under the facts of this case.
Second, as the applicant points out, while treating practitioners and non-industrial insurers are not allowed to intervene in workers compensation cases, they may make claims directly against the injured workers under Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 740 (Ct. App. 1991). The point of Wis. Stat. § 102.30(7)(a) is to provide an administrative mechanism for paying those claims directly. (2) Given that the worker's compensation statutes are to be construed liberally to fully effectuate their purpose of providing prompt, compehrensive medical care, (3) the commission declines to read Wis. Stat. § 102.30(7) to immunize the workers compensation insurers or self- insured employers from liability for expenses of treatment of compensable injury when an applicant does not expressly "consent" on the record to direct payment to the non-industrial insurer.
Indeed, Wis. Stat. § 102.30(2) provides that "Liability for compensation is not affected by any insurance contribution or other benefit due to or received by the person entitled to that compensation. [Emphasis supplied.]" In one of its footnotes, the department explains: "Liability is not reduced because the employee carries insurance." DWD, Worker's Compensation Act of Wisconsin, with amendments to January 1, 2002 (WKC-1-P (r. 7/2002)), note 136. Thus, if a workers compensation insurer or self-insured employer is not going to reimburse a non-industrial insurer (here Harrington Benefits) under Wis. Stat. § 102.30(7), then it should pay the applicant directly the amounts of expense he or she incurred that was covered by other insurance obtained for his or her benefit. Wisconsin Stat. § 102.42 requires the employer to repay all reasonable and necessary medical expenses, not just out-of-pocket expenses or outstanding expenses not paid by another source. An employer (or its worker's compensation insurer) cannot avoid liability altogether, as the employer suggests here. Accordingly, the commission amended the ALJ's order to reimburse Harrington Benefits.
cc:
Attorney Israel Ramon
Attorney John G. Pawley
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