JULIANNE E KOSKI MD, Employee
MARINER MEDICAL CLINIC, Employer - Applicant
AMERICAN STATES INSURANCE CO, Insurer - Applicant
MARINER MEDICAL CLINIC/ST LUKES HOSPITAL, Employer
PHICO INSURANCE CO/STATE OF WI SECURITY FUND, Insurer
TRAVELERS PROPERTY CASUALTY CO OF AMERICA, Insurer
AMERICAN COMPENSATION/RTW, Insurer
This case arises on the "reverse application" of American States Insurance Company (American States), which paid disability compensation to Jullianne Koski based on a November 1, 1995 date of injury. In its reverse application, American States contends that the actual date of injury is June 27, 1996, by which time it had gone off the risk. As a result, American States asserts, it has paid substantial sums in disability compensation and for medical expenses on mistake of fact.
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on February 2, 2005. In addition to American States, insurers made parties to the hearing included:
At the hearing, the parties stipulated to a maximum average weekly wage in 1995 for the purposes of the disability indemnity rates under Wis. Stat. § 102.11. The employer and the insurers also conceded jurisdictional facts as to the alleged dates of injury pertaining to them.
The parties agreed that the hearing was held strictly to determine a date or dates of injury, and that the order would be interlocutory to permit Dr. Koski to make further claims against the parties liable for the specific date or dates of injury as ultimately determined. The parties also agreed in the words of the ALJ that:
the insurance companies' rights, of course, to deny any and all claims made in the future will not be affected, and the insurance companies' rights to challenge past claims shall not be affected. We are determining the date of injury or the dates of injuries and the issue of reimbursement.
Transcript, page 9. The parties also stipulated that the first two medical bills documented on Dr. Koski's exhibit A (in the amount of $103.00from University of Minnesota Physicians and in the amount of $256.00 from St. Luke's Hospital) -- which Dr. Koski paid out-of-pocket -- were reasonable and necessary and incurred as a result of the alleged injuries. Other stipulated issues are also set out in the transcript, at pages 4 to 20.
By order dated February 21, 2005, the presiding ALJ found Phico liable for certain medical expense based on a right upper extremity injury with a June 27, 1996 date of injury. He found American Compensation liable for certain other medical expense based on a left upper extremity injury with a July 29, 1999 date of injury. He dismissed the application as to the other alleged dates of injury and insurers. Phico and American Compensation submitted timely petitions for review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
Jullianne E. Koski was awarded her M.D., in 1979, and began working as a family doctor for the employer in 1986. Dr. Koski cannot recall exactly when her right and left hand and arm symptoms began, though she thought it was as early as August 1995. Her left arm symptoms were minimal, and while she recalled self-treating in 1995, the self-treatment was to the right arm only.
In the fall of 1995, Dr. Koski received therapy to her right arm from a physical therapist at another clinic who provided the service as a professional courtesy. Dr. Koski did not take vacation, sick time, or unpaid time for these visits. She testified she did not make up the time for the visits which varied in time from 20 minutes to an hour-and-a-half. Rather, her scheduler scheduled patient appointments around these visits, which occurred at least twice a week.
In late 1995, because of her arm problems, including most significantly her right arm, Dr. Koski changed her schedule by cutting back on certain procedures, such as pap smears. She testified also that she was seeing fewer patients.
Dr. Koski's pay is based on "relative value units" or RVUs. The procedures that Dr. Koski declined to do, or did less frequently, generated relatively higher RVUs, than other procedures or tasks. While the number of RVUs Dr. Koski generated ultimately affected her pay, there was a time lag before they were accounted for. The doctor received a periodic "draw" from her employer. Her monthly salary was based on a "draw" against the employer. Thus, while Dr. Koski drew at a base rate of $145,000 per year, that amount was adjusted periodically to account for the RVUs in what was termed in the contract as a "productivity adjustment." By contract, Dr. Koski was liable for any amount by which her salary exceeded a compensation rate based on $35 per RVU and conversely would be paid more if her RVU amount exceeded the draw. See American States exhibit 3, Physician Employment Agreement, part 3.
At the hearing, Dr. Koski testified it would be speculative to say her change in scheduling procedures reduced her pay, even if her RVU values were down. The commission reads that testimony, however, to mean that the doctor declined to say how or when a decrease in RVUs would affect her pay not that it was speculative to say there would eventually be an effect. Both the contract and her testimony establish that her pay was determined on a productivity component that was based on RVUs. However, the amount Dr. Koski drew in the last quarter of 1995 would not have been immediately affected by a reduction in RVUs in that quarter, as the calculation and adjustment for the RVUs would not be made until after the quarter closed. See American States exhibit 3, Physician Employment Agreement, part 3.
Even then, Dr. Koski testified, any deduction against the draw from decreased RVUs in the last quarter of 1995 might not occur in the first quarter of 1996; the employer might wait to see if the doctor generated a surplus in RVUs in the first quarter of 1996 to offset the deduction for the last quarter of 1995. In other words, the adjustments made to pay based on the RVU values were made after the fact, and even if the RVU numbers were down, the employer might not reduce her draw in that quarter on the belief the numbers might even out in later quarters.
One other significant point: Dr. Koski testified that her self treatment, the time away for physical therapy, and the adjustments in scheduling procedures were occurring in late 1995 were made based on her professional judgment as a medical doctor. Transcript, pages 87 to 90.
In early 1996, Dr. Koski asked other doctors about her condition who gave her advice again as a professional courtesy. None of the doctors she spoke with in 1996 recommended she restrict her job duties or cut back on hours. There were no charges, and are no records, for any of this advice.
In May 1996, Dr. Koski referred herself to David C. McKee, M.D., for a nerve conduction test, relating a history of pain and paresthesias in the wrist and fingers of the right hand. No left hand complaints are noted, and no testing was done to the left hand. The study was diagnostic of carpal tunnel syndrome on the right.
This led to a May 20, 1996, visit with P.G. Goldschmidt, M.D., for an evaluation of the right hand and wrist with a six month history of carpal tunnel type symptoms which have been confirmed by EMG. Dr. Koski told the Dr. Goldschmidt that her symptoms were nocturnal initially but now were occurring during the day and interfering with her ability to work.
Dr. Goldschmidt did an injection to the right wrist and his plan was to see how she responded clinically before proceeding to surgery. Dr. Goldschmidt subsequently did an endoscopic carpal tunnel release to the right wrist on June 28, 1996.
Dr. Koski continued to have symptoms thereafter, though Dr. Goldschmidt's notes refer only to the right wrist problems. An EMG was normal, though October 1997, Dr. Koski told Dr. Goldschmidt she was "considering modifying her practice pattern because of her symptoms." In early 1998, she underwent a radial nerve exploration on the right.
Dr. Koski returned to work with restrictions on both hours and the types of exams and procedures she did. Her symptoms continued and in March 1998 she began treating with another doctor, Matthew Putnam, M.D., who suggested the continuing problems were due to surgical scarring. Dr. Putman's diagnosis at that time was confined solely to the right arm.
Dr. Koski continued to treat with Dr. Goldschmidt also. His notes first mention left arm problems in April 1998. In late November 1998, Dr. Goldschmidt indicated Dr. Koski was at about 50 percent of her prior production. He was not optimistic that she would return to her former productivity level, and recommended retraining. In December 1998, Dr. Putnam noted Dr. Koski had attempted to work and was having pain at 4 of 10 in the right arm, and "now also has pain graded at 1 about the left upper extremity."
In July 1999, Dr. Putnam recommended permanent job modification. Indeed, he opined she could no longer work full time as a family doctor. Dr. Koski's employment contract was terminated and she went on non-industrial disability. She has occasionally obtained part-time work since.
Dr. Putman's opinion that Dr. Koski was disabled from work in July 1999 was based on her right arm symptoms. His July 29, 1999 note states:
ASSESSMENT: Permanent dysfunction, radial nerve, posterior interosseous nerve, and radial sensory nerve, right upper extremity. New onset of nerve irritation within the left-upper extremity is noted.
The patient has made improvement as compared to presurgical evaluation right upper extremity. However, she continues to have sensitivity about the area of nerve abnormality which is likely aggravated by activity and is unlikely to change in the foreseeable future. She requires permanent job modifications.
In October 1999, Dr. Putman noted Koski "now has developed symptoms about the left upper extremity in the region of the index and middle finger." Subsequently, in January 2000, Koski underwent a carpal tunnel release in the left upper extremity.
The reports from the doctors retained by the insurers -- William H. Call, M.D., Nolan Segal, M.D., Matthew Monsein, M.D., Robert B. Hartman, M.D., and Marc Aschliman, M.D. -- all agree that Koski has bilateral carpal tunnel syndrome. See American States exhibit 2; Travelers exhibit 1; American Comp. exhibits 1, 2 and 3. They all confirm that the symptomatic complaints Dr. Koski was having in late 1995 were part of the same bilateral carpal tunnel condition or disease for which she treated in 1996. Drs. Monsein, Hartman, and Segal seem to agree on a 1995 date of injury, but this is based on her symptoms at that time -- neither doctor directly opines whether she was physically disabled from work in 1995 or whether the changes she made in her schedule at that time were reasonable and necessary to relieve the effects of her injury.
At issue, again, is the appropriate date of injury or dates of injury, in this occupational disease case.
Wisconsin Stat. § 102.01(1)(g) provides:
102.01(1) (g) Except as provided in s. 102.555 with respect to occupational deafness, "time of injury", "occurrence of injury", or "date of injury" means:
...2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.
The most recent reported case discussing the issue of date of injury in an occupational disease case is Virginia Surety Co., Inc., v. LIRC, 2002 WI App 277, 259 Wis. 2d 655. Discussing the question of disability from an occupational disease, silicosis, the court noted:
¶15 ... [The injured worker's] disability, however, did not emerge in an instant, as industrial accidents generally do. See Kohler Company v. Department of Indus., Labor & Human Relations, 42 Wis. 2d 396, 400, 167 N.W.2d 431, 432 (1969) ("An industrial injury or accident is an event, fixed as to time and place.") Rather, it developed slowly. As Kohler Company observed:
"An occupational disease is a process, usually extending over a considerable span of time. It has a beginning, relevant on the issue of causation. It has a progression but this can vary in individual cases. There can be a steady deterioration, swift or slow but uninterrupted. There can be improvement and relapse. There can be recovery and re-occurrence. There can be recovery, period. On a claim for benefits for permanent disability, most important is the question, When did the occupational disease ripen into a disabling affliction?"
Ibid. Where disability results from such a progressive disease, like silicosis, where there is a continuum of impairment that slowly ripens into a barrier to further work, there is a "conclusive presumption" that the "date of disability" under the statute is "when the employee first suffers a wage loss due to" that condition. General Cas. Co., 165 Wis. 2d at 181, 477 N.W.2d at 325. This is because there cannot be a "date of disability" unless there is a "disability" and evidence of "disability" is the inability to work and resulting non-compensation. See Montello Granite Co. v. Industrial Comm'n, 227 Wis. 170, 186, 278 N.W. 391, 398 (1938) ("no disability in an occupational-disease case in the absence of a showing of a wage loss"); North End Foundry Co. v. Industrial Comm'n, 217 Wis. 363, 369-371, 377, 258 N.W. 439, 441-442, 445 (1935) (workers fired because employer feared that they would become disabled on the job not entitled to worker's compensation when there was no "inability to perform" their work at time of termination). Of course, the "wage loss," need not be actual loss of dollars; loss of remunerative compensation, whether "sick leave, vacation time, or flexibility of schedule," suffices. General Cas. Co., 165 Wis. 2d at 181-182, 477 N.W.2d at 325-326. [Emphasis in original.]
Virginia Surety, 258 Wis. 2d at 677-78.
The Virginia Surety court went on to state:
¶18 We agree that the Commission's distinction between nonincapacitating symptoms on the one hand and incapacity to work on the other is a reasonable interpretation and comports with the intent of the statute. Indeed, Montello Granite Co., upon which General Cas. Co. relied, noted that the supreme court had "consistently held" that under the worker's compensation act as it then existed, "'in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results.'" Montello Granite Co., 227 Wis. at 187, 278 N.W. at 398 (quoted source omitted) (emphasis added); General Cas. Co., 165 Wis. 2d at 181, 477 N.W.2d at 325. Montello Granite Co. recognized the distinction, echoed by the Commission's decision here, "between medical or pathological disability which has resulted in no wage loss and actual disability, i.e., physical incapacity to work." Id., 227 Wis. at 188, 278 N.W. at 399. See also Schaefer & Co. v. Industrial Comm'n, 220 Wis. 289, 297, 265 N.W. 390, 393 (1936) (recognizing need to "distinguish carefully between medical or pathological disability and actual physical incapacity to work."). Here, as the Commission recognized, [the injured worker] had a ripening affliction that, ultimately, caused his physical incapacity to work. Until that time, however, although his disease may have been a "medical or pathological disability," it "resulted in no wage loss"... [Citation omitted; emphasis in original.]
¶19 The distinction between symptoms that are not disabling and those that are is a logical application of the worker's compensation law....
Virginia Surety, 258 Wis. 2d at 680-81 (noting further that the primary purpose of the law as of all Worker's Compensation Acts, is to compensate in some measure injured workers for loss of wage-earning power sustained in the industry.)
The physical incapacity to work need not be total, but only enough to result in a wage loss. Thus, the supreme court has
consistently held that disability occurs ... when the employee is disabled from rendering further service; that is when he no longer has the present physical ability to perform his work in the usual and customary way.
North End Foundry Co. v. Industrial Commission, 217 Wis. 363, 372, 258 N.W. 439 (1935).
The commission concludes that the appropriate date of disability with respect to Dr. Koski's right upper extremity disability is November 1, 1995 -- the date originally assigned by American States. This date ties in with Dr. Koski's testimony that she began seeing a physical therapist -- albeit as a professional courtesy -- during work hours about that time. Again, even where wages are made up by "flexibility of schedule," a wage loss for the purpose of establishing date of disability results. General Casualty, at 165 Wis. 2d 182; Virginia Surety, 258 Wis. 2d at 678 ¶15. In this case, Dr. Koski's absence from work or lost time to seek that treatment thus meets the twin requirements of a physical incapacity from disease as rendering Dr. Koski incapable of performing her services to the extent that a wage loss resulted.
In addition, a November 1, 1995 date of disability for the right upper extremity is supported by Dr. Koski's changes to her schedule resulting in few patients and fewer procedures with higher RVUs in late 1995. Dr. Koski's compensation was directly affected by, and in fact is dependant upon, her RVUs. While Dr. Koski received a draw of $145,000 per year in 1995, again that amount was adjusted periodically to account for the RVUs, with Dr. Koski liable for any amount by which her draw exceeded the "productivity compensation" based on RVUs. See American States exhibit 3, Physician Employment Agreement, part 3. Even if Dr. Koski still generated enough RVUs in the last quarter of 1995 to allow for a positive adjustment to her pay in the first quarter of 1996, it would not be as high of an adjustment as she would have received had she not foregone the higher RVU procedures. In sum, because Dr. Koski saw fewer patients and did fewer procedures as a result of her condition, a wage loss necessarily resulted. While the resulting wage loss would not have been accounted for until a later calendar quarter, that does not change the fact the physical incapacity resulting in a wage loss occurred in the last quarter of 1995.
Further, Dr. Koski's expert medical testimony about her condition establishes that her right arm carpal tunnel disease was the reason she sought physical therapy, saw fewer patients, and stopped doing the higher RVU procedures in the last quarter of 1995; it was the reason for incapacity to work such that a wage loss resulted. Indeed, the experts retained by the insurers relate the symptoms in 1995 -- symptoms which as set out above resulted in incapacity to work causing a wage loss -- to her carpal tunnel condition.
Regarding the left upper extremity, the commission like the ALJ finds the appropriate date of injury is her last day of work in July 1999 pursuant to Wis. Stat. § 102.01(1)(g). American Compensation, the insurer on the risk on that date, contends the left upper extremity date of disability should be the same June 1996 date of injury the ALJ found for the right upper extremity (or, presumably, the November 1995 date of injury adopted above.) American Compensation based its contention on two assertions: (1) the left wrist was independently disabling and causing wage loss as of June 1996, and (2) even if it was not, Dr. Koski's disabling disease was bilateral carpal tunnel, not discrete injuries to the wrists separately, so one date of injury with the earliest wage loss and incapacity to work should apply.
However, while Dr. Koski's left arm and wrist may have been symptomatic before her last day of work, those symptoms did not disable her from work. As the court recognized in Virginia Surety, symptoms which are not disabling and do not cause wage loss do not establish a date of disability. Dr. Koski did not treat for a left wrist condition as such -- as opposed to merely mentioning left wrist symptoms while treating for the right wrist -- until well after she stopped working in July 1999. According to the treatment records and Dr. Koski's testimony, it does not appear the left arm symptoms would have caused a physical incapacity to work resulting in a wage loss until January 2000 or October 1999 at the earliest. Since these days are after the July 29, 1999 last day of work, that is the appropriate date of disability for the left upper extremity under Wis. Stat. § 102.01(1)(g)1.
Is it appropriate to use two dates of disability -- one for each wrist -- in this case? The commission answers that question affirmatively in this case, for two reasons. First, the commission views Dr. Koski as having separate injuries, and thus justifying separate dates of injury, despite the diagnosis of a bilateral carpal tunnel condition. The initial treatment and diagnosis was right arm and wrist problems. While Dr. Koski testified she had left arm pain back to 1995, the records from 1998 and later refer to her "now developing" or having a "new onset" of left arm problems. Dr. Koski also attributed her problems to having to do more lifting because of the limits on her right arm suggesting that the left arm injury and disease process -- while identical in the diagnosis or description of the injury -- is a separate injury or disease process.
However, even if Dr. Koski does have a single occupational disease, that does not rule out two dates of disability or injury. In a case involving a claim of tuberculosis from occupational exposure to dust, the supreme court stated:
Upon a full reconsideration of the entire matter, it is considered that it should be held that the "time of accident" within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. If the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, then it will be necessary for the commission to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by a subsequent exposure. If it finds that the disability is due to a new onset, the employer and the carrier on the risk at the time the total disability manifests itself shall be liable accordingly. If, however, there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employee is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account.
Zurich General Accident & Liability Insurance Co. v. Industrial Commission, 203 Wis. 135, 146-147 (1930).
In other words, the court held that if the subsequent work exposure caused the new onset of disability, there would be another date of disability triggering the liability of another insurer.
In discussing what constitutes "recovery," the commission has previously held:
The commission concludes that the meaning of the term "recovery" in occupational disease cases is intertwined with the factual circumstances to which it is applied. An individual may "recover" in an occupational disease process by reaching a healing plateau and returning to work after sustaining one of a series of traumatic injuries, or after sustaining a period of disability due to work exposure. In Zurich, the employee recovered after the latter. In such cases, until the occupational disease process has reached completion there is no occupational disease date of injury, and the acute injuries and recoveries merely represent contributory elements in the occupational disease process. Based on the particular facts and circumstances of [the injured worker's] case, the commission finds that his acute injuries, disabilities, and periods of recovery prior to November 6, 1991, were contributory elements in his occupational back disease process. His occupational back disease process did not reach completion until November 6, 1991.
In other cases, an occupational disease process may reach completion and liability for compensation become fixed. However, subsequent work exposure may change the nature of the occupational disease or accelerate it. Such change or acceleration would constitute a new occupational disease, and one could call the period between the first and second occupational diseases a "recovery" period.
Bruendl v. Simplicity Mfg. Co. Inc., WC Claim No. 91070786 (LIRC, November 25, 1996).
Here, even assuming that Dr. Koski has only an injury from occupational disease, she had a period of disability from the right wrist carpal condition, followed by a recovery with treatment and a return to work, followed by more work exposure causing the "development" or "new onset" -- or which was at least a material contributory causative factor in the progression of -- her left upper extremity condition.
In summary, the date of disability and date of injury with respect to Dr. Koski's disabling right upper extremity condition is November 1, 1995, when American States was on the risk. The date of disability and date of injury with respect to Dr. Koski's left upper extremity condition is July 29, 1999, when American Compensation was on the risk. There are no dates of disability or injury in calendar years 1996, 1997, and 1998, when Phico and Travelers were on the risk, and the application shall be dismissed as to these dates of injury and insurers.
Based on the stipulated items of medical expenses, American States shall reimburse Dr. Koski for $103 for out-pocket medical expense, and American Compensation shall reimburse Dr. Koski $256 for out-pocket medical expense.
Pursuant to stipulation of the parties as set out above, this order shall be left interlocutory to permit the litigation of claims and defenses with respect to the dates of injury as found herein.
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, are affirmed in part and reversed in part.
Within 30 days, the employer and American States Insurance Co. shall pay Jullianne E. Koski, M.D., the sum of One hundred three dollars and no cents ($103.00) in reimbursement of medical expense.
Within 30 days, the employer and American Compensation/RTW shall pay Jullianne E. Koski, M.D., the sum of Two hundred fifty-six dollars and no cents ($256.00) in reimbursement of medical expense
The application is dismissed as it pertains to Phico Insurance Co/State of Wisconsin Insurance Security Fund and the alleged June 27, 1996 date of injury, and as it pertains to Travelers Property Casualty Co. of America and the alleged April 24, 1997 date of injury.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed November 8, 2005
koskiju . wrr : 101 : 8 ND § 3.4 § 5.18
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He explained that her testimony was credible to the extent of her ability to remember events and times. He told the commission he was satisfied she received physical therapy in 1995 as a professional courtesy, though it could have been as early as August 1995 or as late as November. He stated too, that she was credible in her testimony that she limited the number of higher-RVU procedures she performed in late 1995 due to right arm symptoms. He also believed her testimony that she took these actions based on her professional judgment regarding her condition.
Regarding whether the effect of declining to perform procedures with the higher RVUs was merely speculative, the ALJ pointed to Dr. Koski's testimony at the end of the hearing. However, the commission reads that testimony, in conjunction with her employment contract and her earlier testimony, to mean that if her RVUs were down, her pay would be less though she declined to say when or how that reduction would be accounted for by a deduction from her pay in the first quarter of 1996, by an offset against a future payment, or by some other method. As set out above, the commission concluded that while how and when the wage loss would ultimately be accounted for might be speculative, it was not speculative that Dr. Koski's physical incapacity from her right upper arm condition caused a wage loss from the changes to her procedure and patient schedule.
cc:
Attorney Cynthia K. Thurston
Attorney William J. Westerlund
Attorney John A. Griner IV
Attorney Lisa F. Kinney
Appealed to Circuit Court.
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