STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROBERT NITSCHKE, Applicant

PARKWAY GARAGE, Employer

WEST BEND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95005279

The administrative law judge issued his findings of fact and order in this case on August 29, 1996, following a hearing on August 8, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Neither party has submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $400, and a December 26, 1994 compensable injury. The respondent paid temporary disability to June 3, 1995 in the amount of $5,395.60, which it now contends was overpaid in the amount of $755.57.

The issues in dispute at the hearing included the nature and extent of disability. Liability for medical expenses was also at issue.

The commission has carefully reviewed the entire record in this case. Having done so, the commission hereby affirms the administrative law judge's findings of fact and order, except as modified herein:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first six paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The seventh paragraph of the administrative law judge's Findings of Fact is deleted and the following substituted therefor:

"The applicant has submitted a statement of treatment expense on form WC-3 showing charges from Mercy Medical Center in the amount of $6,871.10, of which $154.35 has been paid by the insurer leaving $6,716.75 outstanding; from Joel Jacobson, M.D., s.c., in the amount of $616.00, all of which is outstanding; from Orthopaedic Associates of Oshkosh in the amount of $2,975.36, of which $841.86 has been paid by the insurer, leaving $2,133.50 outstanding (1); from Oshkosh Pathology in the amount of Twenty-five dollars, all of which is outstanding; from LaSalle Clinic Pharmacy in the amount of $61.66, all of which is outstanding; and from Radiology Associates, the amount of $461.27, all of which is outstanding.

"The respondent has submitted a copy of a paid and canceled check, payable to and endorsed by Radiology Associates, in the amount of $428.30. Because the itemized billings from that provider show no reason to believe payment was not actually received, the amount outstanding to Radiology Associates is found to be $32.97.

"The respondent has also submitted copies of paid and canceled checks, payable to and endorsed by Mercy Medical Center. The canceled checks show that, in addition to the $154.35 payment conceded by the applicant, the respondent has paid Mercy Medical Center $2,381.71. Because the itemized billings from that provider show no reason to believe the additional payments were not actually received, the amount outstanding on the Mercy Medical Center bill is found to be $4,335.04.

"The respondent also contests the necessity of the treatment represented by the entire amount of the outstanding bills from the providers described above, with the exception of Mercy Medical Center. With respect to Mercy Medical Center, the respondent only contests the necessity of $4,057.35 for treatment after March 6, 1995. To this end, the respondent has submitted documents showing that it has begun the `necessity of treatment dispute resolution process' under sec. 102.16 (2m), Stats., and sec. DWD 80.73, Wis. Adm. Code, with respect to the outstanding bills. Consequently, the contested bills may not be paid under this order. Instead, the department may order payment of the bills only after resolving the necessity of treatment dispute under the process set out in sec. 102.16 (2m), Stats., and sec. DWD 80.73, Wis. Adm. Code.

"A letter in the file suggests that the respondent contests the reasonableness of the remaining $277.69 outstanding medical treatment expense from Mercy Medical Center. However, the record does not establish that the applicant has formally begun the that process under sec. 102.16 (2), Stats., and sec. DWD 80.72, Wis. Adm. Code. Consequently, the amount of $277.69 shall be ordered paid."

The eighth and ninth paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The tenth paragraph of the administrative law judge's Findings of Fact is modified by deleting the fourth sentence thereof. As modified, the tenth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.

The administrative law judge's order is deleted and the second, third and fourth paragraphs of the Modified Interlocutory Order set out below are substituted therefor.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

MODIFIED INTERLOCUTORY ORDER

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 from the date of this order, the employer and the insurer shall pay all of the following:

(1) To the applicant, Robert Nitschke, the sum of Five thousand four hundred twenty-seven dollars and fifty- eight cents ($5,427.58) for disability compensation.

(2) To the applicant's attorney, Ronald Lampe, the sum of One thousand three hundred fifty-six dollars and eighty-nine cents ($1,356.89) as an attorney fee.

(3) To Mercy Medical Center, the amount of Two hundred seventy-seven dollars and sixty-nine cents ($277.69) for medical treatment expense.

This matter is remanded to the department for implementation of the dispute resolution procedure under secs. 102.16 (2m), Stats., and sec. DWD 80.73, Wis. Adm. Code, for a determination of the necessity of treatment with respect to the bills from:

(1) Mercy Medical Center in the amount of $4,057.35 for treatment from June 5 through June 7, 1995.

(2) Joel C. Jacobson M.D., s.c., in the amount of $616.00 for treatment on June 6, 1995.

(3) Orthopaedic Associates in the amount of $2,133.50 for treatment after May 15, 1995.

(4) From Oshkosh Pathology in the amount of $25.00 for treatment on June 6, 1995.

(5) From Radiology Associates in the amount of $32.97 for treatment on June 5, 1995.

(6) From LaSalle Clinic Pharmacy in the amount of $61.66 for treatment from January 3, through June 9, 1995.

Jurisdiction is reserved for further findings and orders consistent with this decision, as modified.

Dated and mailed November 7, 1996
nitschk.wrr : 101 : 6  ND § 5.47

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Although the applicant did not respond to the petition for review, the administrative law judge discussed the primary legal issue raised on appeal at length in a memorandum to his synopsis. He first noted that remanding medical treatment bills for dispute resolution, once a hearing has been commenced, is inefficient and could lead to inconsistent results. He also suggests that the commission has no authority to order the department to proceed with the dispute resolution process because there is no appeal to the commission under sec. 102.16 (2m)(e), Stats., and because such a remand is not one of the powers specifically enumerated in sec. 102.18 (3), Stats. He concludes by asking the commission to overrule its holding in Sommerfeldt (2) before an administrative nightmare results.

The commission is satisfied its order in this case is within it jurisdiction, and not in excess of its powers. First, of course, the commission has jurisdiction in this case generally as the administrative law judge's order awarded compensation as, indeed, does the commission's order affirming the order. The administrative law judge's order was not a determination under sec. 102.16 (2m), Stats., so the jurisdictional limit under sec. 102.16 (2m)(e), Stats., does not apply. The commission cannot agree that simply because it has no authority to review a determination under sec. 102.16 (2m), Stats., it may not consider the issue of whether the dispute resolution process generally should be complied with, when the issue is raised on appeal of an order granting or denying compensation.

Second, while it might be argued that a remand for a determination under the dispute resolution process does not "direct the taking of additional evidence" under sec. 102.18 (3), Stats., the commission believes otherwise. That issue aside, though, the commission's order in this case, as in Sommerfeldt and Hull, in fact sets aside the administrative law judge's findings in part. The commission believes that the power to set aside includes the power to direct further action. Along these lines, the circuit court hearing the judicial appeal in Sommerfeldt rejected the argument that the commission had acted in excess of its authority in that case by setting aside the administrative law judge's decision and directing further action. (3) In short, while the administrative law judge may believe the action the commission directs is wrong or unreasonable, that does not mean the commission lacks the power to do so.

This leads to the administrative law judge's more central contention that the action directed by the commission in Sommerfeldt was incorrect or unreasonable. However, after giving the matter further consideration, the commission cannot agree. First, of course, the commission's practice in this regard has been affirmed by the circuit court in Copps Corporation v. Judianne Hull, Portage County circuit court case no 95CV-93 (October 3, 1995). In that case, in fact, the circuit court required the commission to remand even more expenses for dispute resolution than the commission had done in its original order.

Second, the fact remains that the dispute resolution process, once begun, gives the parties additional rights. (4) Section 102.16 (2m), Stats., as currently drafted, does not specifically provide that those rights may denied or withdrawn for the sake of administrative efficiency by ending the sec. 102.16 (2m), Stats., process and having the "necessity of treatment" dispute decided by an administrative law judge under sec. 102.17, Stats. If anything, sec. DWD 80.73 (7)(f), Wis. Adm. Code indicates that the dispute resolution process is not preempted by a hearing on causation or disability issues, but only delayed until the completion of the hearing.

In sum, the commission appreciates the administrative law judge's concerns and has given them careful consideration. The bifurcated process set out in sec. 102.16 (2m), Stats., may well lead to administrative inefficiency, as well as the appearance of inconsistent results. (5) Nonetheless, these concerns cannot overcome what the commission believes to be the most reasonable construction of the statute. Thus, the commission respectfully declines to overrule its prior holdings in Sommerfeldt and Hull. (6)

cc: ATTORNEY RONALD L LAMPE
DEMPSEY MAGNUSEN WILLIAMSON & LAMPE

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

Footnotes:

(1)( Back ) It appears from a review of the itemized bills that the total bill and amount paid by the insurer are both understated by fifty cents; this has no effect on the outstanding amount.

(2)( Back ) Mary Sommerfeldt v. Ace Hardware Ripon and Threshermens Mutual Insurance Company, WC claim nos. 93039786, 92053398 and 90035314 (LIRC, December 13, 1995).

(3)( Back ) Ace Hardware Ripon et al. v. Mary Sommerfeldt et al., Fond du Lac County circuit court case no. 96-CV-8 (September 6, 1996).

(4)( Back ) The employer and the insurer are able to avoid the payment of unnecessary expenses incurred to treat a work injury in good faith, despite the supreme court's holding in Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972), if the expenses are found unnecessary by an impartial expert; the applicant may not be held liable for the disputed expenses, necessary or otherwise, under sec. 102.16 (2m) (b), Stats.; and the provider has a right to submit evidence and take an appeal in its own behalf under the statute and rule.

(5)( Back ) It might well happen that an ALJ might find a treatment unnecessary when considering disability, while the partial expert considering treatment expense might reach the opposite conclusion, or vice versa. However, the supreme court's holding in Spencer, supra, requiring ALJs to pay disability caused by unnecessary treatment undertaken for a work injury in good faith, decreases the effect of such inconsistencies. The more problematic inconsistency appears to arise when an ALJ finds an injury or treatment not work-related, and the impartial expert disagrees. In those cases, though, the ALJ's finding should prevail. The impartial expert's role is to determine necessity of treatment of a work injury. If there is no work injury or the treatment is for a non-work condition, the impartial expert's opinion on necessity of treatment is moot.

(6)( Back ) Judianne Hull v. Copps Corporation and Sentry Insurance Company, WC claim no. 91039585 (LIRC, February 28, 1995).

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