SUSAN L CORDTS, Applicant

DONALD L MAINS, Employer

BADGER MUTUAL INSURANCE CO, Insurer

Donald L. Mains and Badger Mutual Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on November 29, 2004. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue before the administrative law judge were whether the applicant sustained a compensable right shoulder injury, and if so, what were the nature and extent of disability and liability for medical expense. Respondents' petition does not dispute the administrative law judge's finding that the applicant sustained a compensable right shoulder injury on January 5, 2003. Respondents argue before the commission that the administrative law judge erred by ordering temporary total disability paid through the date of hearing.

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

Dated and mailed July 21, 2005
cordtsu . wpr : 185 : 8 ND § 5.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Respondents assert that temporary total disability should be cut off as of March 13, 2003, when Dr. Joseph Lemker indicated the applicant would have to remain off work until she had undergone an arthroscopic rotator cuff repair. Respondents further assert that the applicant chose not to go ahead with this surgery, and therefore the ALJ's award of temporary total disability (TTD) through the date of hearing is unjustified. They attempt to analogize the applicant's case that to that of the employee in GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 516 N.W.2d 393 (1994). In GTC, the court reversed the commission's order that respondents keep paying TTD indefinitely, until either the employee (Bartosh) decided he wanted to undergo a recommended back surgery, or until the employer agreed to pay for vocational retraining. Bartosh had also reached a point where no additional healing could occur unless he underwent surgery, but Bartosh decided that he didn't want the surgery. In the case at hand, the applicant has always wanted to go ahead with the right shoulder surgery, but was unable or unwilling to pay for it herself. Respondents assert that she was unwilling rather than unable, because she had qualified for Medicare by January 2004. They further assert that if she could not have come up with the deductible amount that Medicare would not have paid, she could have gone ahead with the surgery anyway, and taken her chances on being successful in her worker's compensation claim. Finally, respondents complain that it is unfair for them to have to bear the burden of the department's delay in scheduling a hearing (the application was filed on July 18, 2003, requests for an expedited hearing were allegedly made on October 24, 2003 and April 27, 2004, and the hearing was finally held on August 30, 2004).

In two commission decisions subsequent to the GTC case, the commission has explained that GTC does not stand for the proposition that an employee loses eligibility for temporary disability because she has healed as much as she can without surgery, and desires to undergo the recommended surgery but is unable or unwilling to pay for it herself. See Christopher Holborn v. Super Value, Inc. and Kemper Insurance Company, WC Claim No. 2000-009429 (LIRC Aug. 15, 2001); and Carole Lee v. Famous Fixtures and Lumbermens Mutual Casualty Company, WC Claim No. 9600-0857 (LIRC Aug. 2, 1997). This is the precise circumstance of the applicant's case. Respondents argue that the applicant should have borne the cost of the surgery herself, presumably with the assistance of Medicare payments. They argue that since she did not, she should not receive the requested TTD that goes up to the date of hearing. Wis. Stat. § 102.42 requires respondents to pay reasonably required medical expense, and if full healing cannot be attained without surgery, surgery is a reasonably required expense. Wis. Stat. § 102.43 requires payment for temporary disability, and in the applicant's case she continues to be temporarily disabled until she receives the needed surgery. Respondents are free to dispute liability and withhold payment for medical expenses until the issue of causation is resolved, but just as the applicant assumes the risk that she may receive nothing if causation is decided against her, respondents assume the risk that they will be liable for all compensation due if causation is decided against them. That includes compensation in the form of TTD that accrues due to the surgery delay, which in a worker's compensation setting, is attributable to respondents' refusal to accept liability.

It is unfortunate that a hearing was not scheduled sooner in this matter, but the record before the commission does not contain any evidence of improper conduct by the department. The department adjudicates large numbers of worker's compensation cases each year, and it must be equally responsive to all of the claims filed. It is not uncommon for the issue of ongoing temporary total disability to be part of a claim.

cc:
Attorney Gary J. Halom
Attorney David A. Piehler

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