STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID YUNK, Applicant

MOLD RITE PRODUCTS INC, Employer

ACUITY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-024100

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 11, 2004. Mold Rite Products, Inc. and Acuity Insurance Company (respondents) submitted a timely cross-petition, and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of May 28, 2003.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified. The commission makes the following:

MODIFIED FINDINGS OF FACT


Delete the paragraph which begins with the next-to-last line of page 4 of the administrative law judge's decision and substitute the following paragraph therefor:

Pursuant to the discretionary authority granted in Wis. Stat. § 102.18(1)(bg)2., the applicant's claims for additional medical expense, with respect to the necessity of such expense, shall be resolved pursuant to the dispute resolution procedures set forth in Wis. Stat. § 102.16(2m). The insurance carrier shall initiate the resolution process by notifying the providers that the necessity of treatment is in dispute, in accordance with Wis. Stat. § 102.18(2m)(b).

Delete the administrative law judge's ORDER and substitute therefor the commission's MODIFIED ORDER set forth below.

The rest and remainder of the administrative law judge's Findings are affirmed and reiterated as if set forth herein.

NOW, therefore, this

MODIFIED ORDER


The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The applicant's claim for additional disability is dismissed. The applicant's claims for additional medical expense shall be resolved pursuant to the dispute resolution process, as noted in the above findings.

Dated and mailed February 3, 2005
yunkda . wpr : 185 : 8   ND § 5.47

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

Dr. Wooten's opinion concerning the applicant's behavior is credible and consistent with the objective observations he made of the applicant's left hand, wrist, and arm on July 29, 2004. No other physician gave a credible explanation of the extraordinary and anomalous "ballooning" of the applicant's hand, the demarcation of this "ballooning," or the linear bruises at the applicant's wrist, all observed by Dr. Wooten. The applicant's claim for additional, ongoing temporary total disability is rendered incredible based on Dr. Wooten's credible observations of malingering behavior.

Applicant's counsel argues that even accepting Dr. Wooten's explanation of what occurred on July 29, 2004, this merely shows that the applicant attempted to embellish the appearance of his hand on that date, but does not demonstrate that the applicant never suffered from complex region pain syndrome (CRPS). The commission and the administrative law judge found credible Dr. Zeman's opinion that at the time Dr. Zeman examined the applicant, it was clear that he had sustained a "mild residual reflex sympathetic dystrophy." However, the commission and the administrative law judge also found credible Dr. Zeman's assessment of a healing plateau as of December 31, 2003, as well as Dr. Wooten's opinion that as of the date of his examination of the applicant, the CRPS had resolved without permanency. Dr. Wooten acknowledged that prior medical records indicated sporadic mention of some CRPS signs and symptoms, but nothing so consistent or pronounced as to support a diagnosis of ongoing disability, particularly given the applicant's presentation on July 29, 2004.

Respondents previously paid five percent permanent partial disability in accordance with Dr. Zeman's opinion, and did not request reimbursement. In any case, the commission has no authority to order reimbursement of previously-paid compensation, but may offset previous payments against awards of additional compensation. No such offset is herein ordered.

The commission modified the administrative law judge's order to place the issue of the necessity of the claimed medical expenses into the dispute resolution process under Wis. Stat. § 102.16.   Wis. Stat. § 102.18(1)(bg), which became effective January 1, 1998, gives the department and the commission the discretionary authority to resolve the reasonableness and necessity of disputed medical treatment either directly or by ordering the claims into dispute resolution. The commission chose the latter option in this case because there is a lack of direct medical evidence in the record, from either the applicant or the respondents, with regard to the necessity for treatment during the period in question. Accordingly, the commission concluded that this issue would be more appropriately addressed in the dispute resolution process.

cc:
Attorney Brian J. Henderson
Attorney Richard T. Mueller

Appealed to Circuit Court. Affirmed August 4, 2005.

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