KEVIN BULLOCK, Applicant

BERGSTROM CADILLAC HUMMER INC, Employer

AMERICAN & FOREIGN INSURANCE CO, 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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 16, 2005
bulloke . wsd : 132 : 1  ND § 8.24

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant has petitioned for review of the adverse findings and order of the ALJ. The applicant asserts that he was never informed that a physican assistant's opinion could not be used. The applicant submitted a WKC-16-B completed by a physician assistant. As noted by the ALJ, a physician assistant cannot give an opinion as to causation and extent of disability. A physician assistant can submit a report addressing the issues of diagnosis and necessity of treatment.

Wis. Admin. Code § DWD 80.22 deals with the use of physicians' reports as evidence. Wis. Admin. Code § DWD 80.22(3) provides "an applicant shall be informed of the provisions of s. 102.17(1)(d), Stats., and the department's rules and also that a form for reporting will be supplied to the applicant upon request."

On February 20, 2004, the department sent the applicant a "Notice of Application" which stated:

If the cause of the injury or extent of the disability is disputed, you must submit medical evidence from a medical doctor, chiropractor, licensed psychologist or podiatrist to prove your claim. Practitioners may testify in person at a hearing, or complete a WKC-16-B. This case will schedule for a hearing in due course when we receive adequate medical documentation supporting this claim.

On April 19, 2004, the department sent the applicant a letter noting his file did not contain a medical report and that medical documentation that supported his claim had to be filed. The letter stated, "Please have your doctor complete the practitioner's report form that was sent to you along with your application for hearing and return a copy to this office and also send a copy to the American Foreign Insurance Company."

On May 25, 2004, the department sent the applicant a WKC-16-B with a cover letter stating:

Attached is a practitioner's or vocational expert's certified report form for service. Under Wis. Stat. § 102.17(1)(d), this report may now become evidence if it is received into the record at the hearing.

The party submitting the report will rely upon it and not have the doctor, chiropractor or vocational expert present to testify in person at the time of hearing.

If you wish to cross-examine the practitioner or vocational expert on any information in the report, you must arrange to have that person present at the hearing and pay costs involved with his/her appearance.

The WKC-16-B form also indicates that the form may be used as prima facie evidence and, if the form is not timely filed "it will be necessary to produce the doctor to give oral testimony at the time of the hearing."

The letters sent to the applicant and the WKC-16-B refer to a medical doctor, chiropractor, licensed psychologist or podiatrist. There is no reference to physician assistant or to any other type of practitioner as being qualified to complete the WKC-16-B. Indeed, prior to the 2003 Wisconsin Act 144 effective March 30, 2004, which renumbered, Wis. Stat. § 102.17(1)(d) to Wis. Stat. § 102.17(1)(d)1., and amended that section to permit reports by physician assistants and advance practice nurse prescribers, a physician assistant was not mentioned in Wis. Stat. § 102.17(1)(d) as a type of practitioner that could offer any opinion on a WKC-16-B.

The applicant submitted a WKC-16-B prior to the hearing. The department repeatedly referred to the need for a doctor to complete the form. The department cannot review every report filed to ensure that the information provided and certified to is by a medical doctor or other practitioner qualified to provide the opinions advanced therein. Further, the applicant has the option of having the doctor appear in person in lieu of completing a WKC-16-B.

The applicant was advised of the provisions of Wis. Stat. § 102.17(1)(d) and provided the necessary form, WKC-16-B.

Respondents' IME Dr. O'Brien opined that applicant sustained a contusion and reached a healing plateau on August 20, 2003. Dr. O'Brien found that applicant's ongoing problems and disability were related to his preexisting condition. The ALJ accepted Dr. O'Brien's opinion as it was the only qualified medical opinion on causation and disability. The applicant attacks the opinion of Dr. O'Brien. However, even if the commission found Dr. O'Brien's opinion less than credible, the record would be devoid of a medical opinion on causation and disability favorable to the applicant. The applicant failed to meet his burden of proof.

cc: Attorney James W. Goonan

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