JOSE J CARABALLO, Applicant

RACINE STEEL CASTING CO, Employer

FIRE & CASUALTY INS. OF CONN, Insurer

Pursuant to the timely petition for review filed by the applicant in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

That the findings and order of the administrative law judge are hereby affirmed.

Dated and mailed November 1, 1993  
ND § 5.46  § 5.48

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The applicant asserts in his petition for commission review that the employer, by refusing to pay for any of his medical expenses prior to the hearing failed to tender treatment as provided under section 102.42 (1), Stats., and therefore the applicant's choice of treating physician was not restricted pursuant to section 102.42 (3), Stats. The commission agrees. It was undisputed that the employer had refused to pay any of the applicant's medical expenses from June 1991 until the beginning of May 1992, after the hearing. The employer did not agree to pay any of the medical expenses until it reached a limited compromise agreement on some of the medical expenses after the hearing. The employer did not agree to pay the medical expenses from Dr. Kanshepolsky in the limited compromise.

The employer made a choice not to pay any of the medical expenses despite the fact that it was informed of the applicant's work injury. In addition, the employer could have paid the medical expense and still contested the necessity of the treatment or whether there was a work-related injury at the hearing, and claimed an overpayment.

The employer contends that if the applicant's assertion is allowed that whenever there is a dispute about the medical bills or the necessity for treatment or the work-related nature of the injury, the employer's decision to contest such issues would permit the applicant unlimited doctor shopping. However, the employer may still litigate the issue of an overpayment at the hearing. The applicant must still establish that the treatment from any practitioner was reasonable and necessary to cure and relieve the effects of the work injury. Nothing in the act indicates that the employer is free to disregard medical expenses incurred in an alleged work injury until a hearing has been held to adjudicate the underlying issues of causation and necessity for medical expenses. By refusing to pay the applicant's medical expenses beginning in June, 1991, the employer took the risk that it would be liable for failing to tender treatment and that the applicant would have an unrestricted choice of treating physicians pursuant to section 102.42 (3), Stats.

However, although the applicant's choice of treating physician was not restricted to two physicians, the commission does not believe that the treatment expense from Dr. Kanshepolsky was necessary to cure and relieve the applicant's work injury. Dr. Lippman, who examined the applicant on behalf of the employer indicated that his examination demonstrated that the applicant had no evidence for soft tissue injury to the back nor did he have any evidence for acute lumbosacral strain or radiculopathy. Dr. Lippman indicated that he reviewed all charges stemming from the applicant's care by Dr. Kanshepolsky and that based on his neurologic evaluation of the applicant just prior to his seeing Dr. Kanshepolsky, that the applicant was entirely normal and did not require any of the testing, therapy and physical modalities provided by Dr. Kanshepolsky. The commission credits Dr. Lippman's opinion and therefore finds that the applicant's treatment from Dr. Kanshepolsky was not necessary to cure and relieve the effects of his work injury.

cc:
Attorney Richard A. Fortune
Schoone Fortune & Leuck SC

Attorney Craig W. Nelson
Nelson Dries & Zimmerman SC

175 - CD5817

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