MARVIN PAULIN, Applicant
MID STATES EXPRESS, Employer
VIRGINIA SURETY CO INC, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on January 21, 2004, with a close of record on February 18, 2004. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded a compensable injury on July 12, 2001, an average weekly wage of $798.38, temporary total disability from July 12, 2001 to December 22, 2003, permanent partial disability at 30 percent compared to loss of the arm at the shoulder, and certain medical expenses. At issue before the ALJ was the applicant's entitlement to additional temporary disability, and the appropriateness of an order directing the payment of medical expenses related to a reverse shoulder prosthesis procedure.
The ALJ issued his decision on May 24, 2004. Both sides appeal.
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 makes the following:
The applicant, a truck driver born in 1952, tore his left rotator cuff in a conceded injury on July 12, 2001. He has been taking Prednisone for over 20 years due to a kidney transplant. As a result, he was a poor candidate for rotator cuff repair surgery. An attempted repair on October 29, 2001, and a revision surgery on April 2, 2002, were unsuccessful.
The applicant is seeking pre-authorization under Wis. Stat. § 102.18(1)(b) for what is known as a reverse shoulder prosthesis, or RSP. This is an experimental procedure not performed by doctors in Wisconsin. The applicant wants to have the procedure done by a Mark A. Frankle of Tampa, Florida.
Two issues arise from this case: (1) whether the applicant is entitled to an order directing the respondent to pay for the proposed RSP procedure; and (2) whether the applicant is entitled to temporary total disability until that procedure is done.
1. Prospective order.
Dr. Frankle has not given an opinion on whether the procedure is reasonable and necessary in the applicant's case. Nor has he even said he would do it. However, the parties have obtained opinions from local doctors about the procedure, and they are evenly split.
The applicant saw Rick Papandrea, M.D., for a consultation. On August 29, 2002, Dr. Papandrea and a colleague (Dr. Manz) discussed various surgical procedures, and opined the applicant was quite young to undergo an arthroplasty and that it would be difficult for him to return to his heavy manual labor work. An MRI was ordered. Exhibit A, report of Manz.
After the MRI was done, the applicant returned to Dr. Papandrea. In a note dated September 10, 2002, Dr. Papandrea mentioned four surgical options, and seemed to favor a "total shoulder with a reverse prosthesis." The advantage of this procedure was that there was "increased predictability but decreased longevity" and that "it could be more durable if it is possible but I think there is a high likelihood that it could not be possible due to the severity of the tear."
When the applicant next saw Dr. Papandrea, he thought it was reasonable for the applicant to proceed with the RSP procedure. Exhibit C, note dated January 7, 2003. He did note, however, that the FDA has not approved the procedure for unlimited use, and that no one in Wisconsin can do it. In a follow-up note, Dr. Papandrea reported he had spoken personally with Dr. Frankle, who has been implanting the prosthesis for seven years, and was assured the applicant would be a good candidate.
The applicant also saw Owen B. Keenan, M.D. Dr. Keenan's note indicates the applicant saw him "independently" which means he self-referred. (1) Dr. Keenan is opposed to the surgery, at least at this point. Dr. Keenan notes that the applicant kept asking him if he would get more motion with the surgery, but the doctor told him that was unrealistic and that he might end up with no more motion. Dr. Keenan seems to suggest he would recommend the procedure to relieve pain, but the applicant's pain was minimal. Dr. Keenan, in short, tried to dissuade the applicant from having the surgery.
Even the respondent's own examiner, David Mellencamp, M.D., is of two minds about the procedure. His initial recommendation to the applicant was either to accept his shoulder as it is, or consider reverse arthroplasty. He specifically stated he felt the procedure was reasonable, but thought that there were three surgeons locally who could do it, so the applicant need not travel to Florida. Exhibit 4, October 21, 2002 report of Mellencamp, page 5.
In a follow-up report, Dr. Mellencamp was asked if there was another procedure that could be done as "apparently there are very few surgeons in the United States that are even performing this type of surgery." Dr. Mellencamp answered that nothing else would work and that even the reverse shoulder replacement might not work. Indeed, he added that a poor result from surgery was likely. Exhibit 4, December 18, 2002.
In a third and final report done on January 5, 2004, after an examination in December 2003, Dr. Mellencamp noted his initial opinion that "reverse shoulder arthroplasty might be a reasonable option or he should accept the shoulder as it is." Given that the procedure was experimental and not cleared by the FDA, however, Dr. Mellencamp stated he "[did] not think this is a reasonable option ... and hopefully he would be able to get along without it." Exhibit 2, January 5, 2004 report of Mellencamp, page 1.
In his report, Dr. Mellencamp then noted Dr. Keenan's intervening opinion that it was not realistic the procedure would improve the applicant's range of motion, and that its benefit in reducing pain was less significant here as the applicant had little pain. Dr. Mellencamp then stated his bottom line: he agreed with Dr. Keenan that the applicant's expectations from the procedure were unrealistic and that he did not think the applicant would ever be using the arm, even with the procedure. Noting again that the procedure was experimental and not FDA approved, he recommended against it.
In his decision, the ALJ found it "more likely than not that some medical improvement may be afforded the applicant should he submit to the procedure." He concluded, then, the reverse shoulder prosthesis procedure was reasonable and necessary, and prospectively approved it under Wis. Stat. § 102.18(1)(b). He approved it conditionally, though, with the caveat basically that while Dr. Frankle could charge for his services to put the prosthesis in (and for reasonable follow-up), the manufacturer of the device would have to provide it for free and that Dr. Frankle would have to remove it without charge if the prosthesis were found harmful.
On appeal, the respondent argues that the applicant has not met his burden of proving the RSP procedure is reasonable and necessary as required for a prospective award under Wis. Stat. § 102.18(1)(b). It also suggests it would deny due process to order payment of the procedure without having the chance to cross-examine Dr. Frankle. The applicant responds that he has provided substantial medical evidence to the effect that the proposed procedure is reasonable and necessary, and that respondent could have examined Dr. Frankle if it wished.
However, the fact that the applicant has never actually been examined by Dr. Frankle cannot be disputed. Before prospectively awarding the expenses for the RSP procedure under these facts -- where the procedure has not been generally approved by the FDA and only a very limited number of surgeons can perform the procedure -- an opinion from the doctor who will actually perform the surgery is warranted. Accordingly, the commission finds that future treatment is warranted in the form of an examination by Dr. Frankle to give an opinion about whether the applicant is a reasonable candidate for the RSP procedure. Under Wis. Stat. § 102.18(1)(b), the commission shall therefore direct the insurer to pay for the expenses of treatment, including reasonable travel expenses, with Dr. Frankle to only that extent at this point.
If as a result of the examination, Dr. Frankle determines that surgery is warranted and provides an opinion to that effect, the applicant may pursue his claim for the prospective authorization of the RSP treatment expense. Within 30 days from the date that the applicant submits Dr. Frankle's report to the department and the respondent, the respondent may submit a report from its own expert in response to Dr. Frankle's report or may arrange for further hearing to cross-examine Dr. Frankle.
At the end of the 30 day period--or after the hearing if cross-examination of Dr. Frankle is obtained--the department shall transmit the record to the commission for decision on whether to issue an order prospectively ordering payment of the expense of the RSP procedure under Wis. Stat. § 102.18(1)(b).
2. TTD
The parties also raise the issue of temporary disability compensation. The ALJ found that the applicant was not entitled to temporary disability while he was awaiting surgery, but would be entitled to TTD after he underwent the RSP procedure which the ALJ authorized. The applicant contends he will not reach a healing plateau until after he undergoes the RSP, and should be receiving TTD on a continuing basis until he recovers from that procedure. (2) The respondent, on the other hand, objects to the ALJ's order to the extent it prospectively ordered disability indemnity.
The supreme court has held that the commission cannot order payment of TTD after a worker's condition has stabilized and he or she is awaiting surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994), while the commission has held that an insurer cannot deny payment of a surgery causing the procedure to be delayed, then try to assert the applicant has stabilized. Carole Lee v. Famous Fixtures, WC Claim No. 96000857 (LIRC, July 2, 1997). (3) The difference between Larsen Co. and GTC Auto holdings and situation in Carole Lee in a practical sense turns on whether a doctor credibly opines the applicant has reached a healing plateau and is subject only to permanent disability during the period at issue. ITW Deltar v. LIRC, 226 Wis. 2d 11, 21 (Ct. App. 1999). (4) In Larsen Co. and GTC Auto, doctors -- including treating doctors -- were willing to rate permanency. That has happened here as well.
Specifically, following examination on January 7, 2003, Dr. Papandrea opined the applicant had a 60 percent permanent partial disability at the shoulder, due to pain, decreased range of motion, and dysfunction. The doctor noted the applicant's condition was guarded and would not change without surgery, but that the applicant would likely benefit from a reverse shoulder replacement. Exhibit C, WKC-16-B of Papandrea, dated January 14, 2003.
To be sure, Dr. Papandrea later opined the applicant in fact remained in a healing period until the RSP procedure would be performed and the applicant recovered from surgery, exhibit E, March 20, 2003 note of Papandrea. However, the commission credits Dr. Papandrea's original opinion, noting it is relatively consistent as to end of healing set in Dr. Mellencamp's report dated December 18, 2002.
The commission concludes, however, that TTD should be paid through January 14, 2003, the date Dr. Papandrea rated PPD. The applicant is therefore entitled to TTD from December 22, 2003 (the date the respondent stopped paying based on Dr. Mellencamp's report) and January 14, 2003, a period of 3 weeks and 2 days at the weekly rate of $532.25 (two-thirds of the conceded average weekly wage of $798.38). This totals $1,774.18, which shall be paid to the applicant subject to a 20 percent attorney fee of $354.84, and subject to an appropriate credit for any payment of PPD during this period.
Regarding the question of TTD while the applicant recovers from the RSP procedure, that issue is premature under this decision because the commission has not yet decided to order prospective payment of the RSP procedure. Further, Wis. Stat § 1021.18(1)(b) is limited to payment of the treatment expense, and does not allow for an order prospectively awarding temporary disability indemnity. The commission notes, however, that a worker's compensation insurer must generally pay ongoing disability indemnity from a compensable injury -- including disability as a result of treatment for the injury -- timely and in good faith.
This order shall be left interlocutory to deal with the medical expense issue concerning the RSP procedure, and to permit the payment of any additional permanent disability, temporary disability and medical expense as may be appropriate.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Marvin Paulin, ($1,419.34), in temporary disability compensation.
2. To the applicant's attorney, Daniel Schoshinski, ($354.84) in fees.
The employer and its insurer shall also pay for future medical expenses for an examination by Mark A. Frankle, M.D., as outlined in this decision.
Dated and mailed April 28, 2005
paulima . wrr : 101 : 8 ND § 5.47
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
No credibility conference was held, as the commission's decision in this case did not involve the credibility of the applicant, the only witness who testified before the ALJ.
cc:
Attorney Daniel R. Schoshinski
Attorney Timothy J. Schumann
Appealed to Circuit Court. Affirmed November 28, 2005.
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