RICHARD POSPICHAL, Applicant

ASHLEY FURNITURE INDUSTRIES, Employer

EMPLOYERS INSURANCE OF WAUSAU, 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 ninth paragraph of the ALJ's Findings of Fact and Conclusions of Law, and insert:

"The carrier also argued that it is liable for a discount that Chiropractor Froehle of Trempealeau Family Chiropractic had initially taken on her treatment expense but then retracted when this matter came on for hearing. On this point, the carrier cites Hoefs v. Midway Motor Hotel, WC Claim No. 1999-029146 (LIRC, October 21, 2003).

"In Hoefs, the commission stated:

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.

"In Hoefs, then, the insurer argued that by "writing off" or adjusting expenses from a bill, a medical provider admits the bill is unreasonable. In setting out this argument, the commission noted that it has authority to pass on reasonableness under Wis. Stat. § 102.18(1)(bg) and that insurers are only liable for reasonable medical expenses under Wis. Stat. § 102.42(1). The commission did not, however, hold or pronounce any general rule that, by making adjustments to a bill, a provider admits that the original bill including the "unadjusted" or "undiscounted" expenses is per se unreasonable.

"Rather, the commission addressed the situation where: (1) a bill is attached in support of a medical expense claim on a "Medical Treatment Statement" (form WKC-3), (2) the bill indicates that some expenses have been adjusted or adjusted from the medical charges, and (3) the record does not indicate why the expenses were adjusted or discounted. In such a case, the commission held, the charges, after deducting the written off amounts, reflect the expense that may be ordered paid under Wis. Stat. § 102.42(1).

"In this case, the amended medical treatment statement on form WKC-3 at exhibit G is supported by a bill from the Trempealeau Family Chiropractic clinic which does not include any adjustments, deductions or write-offs. In other words, the former adjustments have been withdrawn and the most recent billing and medical treatment statement at exhibit G supports a higher award than the earlier billing and statement at exhibit H.

"Since the amended medical treatment statement supports the expense claimed, it shall be ordered paid in full. On this point, it is noteworthy that the procedure for resolving the "reasonableness" of medical expense billings under Wis. Stat. § 102.16(2m) has not been invoked. At least as significant, however, is that there is no evidence in the record--other than the fact of the now-retracted adjustment itself--to support a finding that the Trempealeau Family Chiropractic billing is unreasonable in amount. For example, the opinion of chiropractor Court--which served as a partial basis for the finding that denied the claimed expense for chiropractic treatment after May 1, 2003 as unnecessary--does not indicate the amounts billed for chiropractic treatment before that date were unreasonable."

2. Delete the sixteenth (last) paragraph of the ALJ's Findings of Fact and Conclusions of Law.

3. Delete the heading of the ALJ's "INTERLOCUTORY ORDER," substitute "ORDER" therefor, and delete the second (last) paragraph of that order.

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.

Dated and mailed November 30, 2004
posp . wmd : 101: 9  ND § 5.46  § 8.33

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer and its insurer (collectively, the respondent) conceded the applicant sprained his back unloading furniture from trucks for a truck sale on May 19, 2002. The respondent also conceded about $1,500 in temporary disability ending July 15, 2002. At issue before the ALJ was the respondent's liability for disability compensation beyond what was conceded and for medical treatment expense.

The ALJ found the applicant's end of healing -- setting the end of temporary disability liability -- occurred on August 10, 2002. She explained this date was supported by both the treating and insurer-retained chiropractor. The ALJ declined, however, to award permanent disability despite the rating given by the treating chiropractor. She explained that an occupational medicine specialist, Steve Bowman, D.O., (whom the applicant saw on referral from his treating doctor) was skeptical about the applicant's ongoing complaints and felt the applicant could return without restriction. Exhibit C, January 27 and May 1, 2003 notes of Bowman. Despite not awarding permanent disability compensation, the ALJ reserved jurisdiction for a possible "vocational claim."

On appeal, the applicant contends the ALJ erred in finding the applicant did not sustain permanent disability from his injury. However, the commission does not agree. As the ALJ explained, the practitioners retained by the insurer (Drs. Court and Barrons) both opined the applicant reached an end of healing with no permanent residuals and no need for work restrictions. These opinions are supported in this case by the opinion of Dr. Bowman, an occupational medicine specialist whom the applicant saw on referral from his treating neurologist. When he first examined the applicant on January 27, 203, Dr. Bowman noted his reluctance to set permanent work restrictions. When he re-examined the applicant on May 1, 2003, Dr. Bowman opined the applicant had an accentuated focus on every ache, pain or twinge he felt in his back. Further, Dr. Bowman reported his examination disclosed "a healthy 20-yr-old back," and concluded that if he were the treating doctor he would return the applicant to regular duty immediately. On this record, the commission, like the ALJ, concludes that the record does not support an award for permanent partial disability compensation.

This leaves two issues raised by the respondent in its response to the applicant's petition. Specifically, the respondent asserts the ALJ erred in paying the full amount of the medical expense claimed for treatment at Trempealeau Family Clinic and in issuing an interlocutory order.

The commission begins by emphasizing that both of these arguments are raised only in responsive briefing, not in a timely petition or cross petition. As explained in Larry Schmidt v. Metropolitan Milwaukee Auto Auction, WC Claim No. 1998-012175 (LIRC April 13, 2001), while the commission retains the authority to review all issues in a case in which a timely petition has been filed by one of the parties, arguments of ALJ error or for affirmative relief raised by a nonappealing party are given less weight than if they had been made in a timely cross-petition or petition. See also: Deborah Polakowski v. Clearview Nursing Home, WC Case No. 96028025 (LIRC, December 17, 1997), and 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).

Although the respondent raised the issue of the Trempealeau Family Chiropractic bill only in a responsive briefing, the commission carefully considered the issue and both parties' arguments on appeal. Having done so, the commission affirmed the ALJ determination that that bill should be paid in full, as explained in the material included in its amendment of her order.

The commission notes, however, that the respondent did not raise any issue -- even in its responsive briefing -- with respect to the Franciscan Skemp Clinic bill which included a $64.44 adjustment. Consequently, the commission declines to address sua sponte any issues arising from the "adjustments" to the Franciscan Skemp Clinic bill.

The last issue is the appropriateness of an interlocutory order, which the respondent also raised in its responsive briefing. The respondent asserts that because the ALJ found the applicant reached an end of healing with no permanent disability, it was an error to reserve jurisdiction and leave open the issue of a vocational claim. The applicant responds that while ALJ Endter did not find permanent disability she "was recognizing that there was potential, upon further care, to reach a different conclusion."

The decision whether to reserve jurisdiction is discretionary, and the standard applied sets a very low evidentiary burden. See Wis. Stat. § 102.18(1)(b) and Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Here, however, the commission reads the ALJ's order to hold that the applicant does not have any permanent disability, and to credit the opinions of the doctors who opined that the applicant could work without permanent restrictions. The commission also believes the ALJ did not intend to allow those issues -- the applicant's permanent disability on a "functional" basis and his permanent restrictions from the work injury -- to be relitigated despite her reservation of jurisdiction for a vocational claim.

Under these circumstances, the commission concludes that the order should be final. In the absence of permanent disability or permanent restrictions, the applicant may not bring a claim for "vocational" permanent disability for loss of earning capacity under Wis. Stat. § 102.44(3), nor does the applicant appear to assert otherwise. He instead suggests that the ALJ meant to reserve jurisdiction on the issues of the extent of "functional" permanent partial disability and work restrictions, a contention which the commission rejects. Finally, the application for hearing does not seek compensation for vocational retraining under Wis. Stat. § § 102.43(5) and 102.61, and even if it had, an interlocutory order would not be necessary to preserve those claims. See Wis. Stat. § 102.18(4)(a).

cc:
Attorney David Blackey
Attorney Steve A. Cotton

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/12/06