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


JENNIFER REEK, Applicant

UNITED PARCEL, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90040567


Administrative Law Judge (ALJ) R. A. Collins of the Worker's Compensation Division of the Department of Workforce Development (1) issued a decision in this matter. A timely petition for review was filed. The issue is whether the employer and insurer (collectively, the respondent) are liable for certain medical examinations.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant suffered a work injury which occurred when she was loading large packages in June 1990. After conservative treatment, she underwent a two-level laminotomy and discectomy procedure, at L4-5 and L5-S1, in February 1991. She obtained some relief from the surgery, but complained of continuing back and leg pain. Her surgeon, Howard An, M.D., attributed the continuing pain to scar formation and a recurrent disc herniation. He recommended fusion surgery only as a last resort.

The respondent, relying on the opinion of David Haskell, M.D., contended that the work injury caused at most 34 weeks of temporary disability. The respondent contended the work injury did not cause the symptoms leading to the two-level laminectomy surgery or the additional temporary disability therefrom. However, ALJ Collins issued a 1993 decision in the applicant's favor on those issues which was never appealed. ALJ Collins' 1993 decision held off ordering permanent disability noting: "maintenance treatment continues and further surgery may also become necessary."

The applicant never underwent addtional surgery. However, she has had considerable treatment for persistent pain. The respondent's liability for certain expenses of that treatment is at issue in this case.

Dr. An submitted reports in February and March 1996 stating that the applicant continues to suffer chronic pain from her work injury. He continues to prescribe medication for her, although he believes her chronic pain condition has plateaued. During the course of his treatment, Dr. An referred the applicant to three practitioners for treatment, R. B. Mawhiney, D.C., Arthur Rapkin, O.M.D., and Jeffrey Gorelick, M.D.

Dr. Mawhiney, a chiropractor, treated the applicant between April and November 1995, with x-rays, office visits, adjustments, ultrasound treatments, traction, and a support belt. The applicant testified the treatment by Dr. Mawhiney was for her lumbar complaints.

Dr. Rapkin, an osteopath, treated the applicant by "percutaneous neurostimulation" and "electrical stimulation (attended)" between March 1995 and January 1996 on complaints of back pain. She testified that Dr. Rapkin's treatment, which included acupuncture, was also for her back and leg pain.

The applicant treated with Dr. Gorelick, a physiatrist, from November 1995 to March 1996. His treatment notes indicated he treated the applicant for pain and pain management, specifically for low back and left leg symptoms related to her 1991 back surgery. As part of this treatment, Dr. Gorelick ordered EMG testing at West Allis Memorial Hospital. In his initial treatment note for November 28, 1995, Dr. Gorelick noted that the applicant felt that treatment with Dr. Rapkin helped quite a bit, and that treatment with Dr. Mawhiney provided some benefit.

The respondent submits the February 21, 1995 report of Dr. Haskell. He noted his prior opinion that the applicant's initial symptoms of low back pain had no relation to her work injury, that she sustained no disability arising out of her employment, and that she was not an appropriate candidate for the back operation performed in February 1991.

Dr. Haskell went on to state that he had not changed his opinions. He opined the applicant's ongoing psychotherapy, psychiatric and acupuncture treatment was directed solely to the applicant's long-standing depressive disorder, not the work injury. He also opined that the chiropractic manipulations represent unreasonable and unnecessary treatment.

However, the commission concludes that the applicant's ongoing pain complaints arise from her work injury, and the 1991 surgery to correct that injury. Dr. An's opinion on that point is more credible than Dr. Haskell's for the same reasons cited by ALJ Collins in his decision of February 12, 1993, which was not appealed.

On the issue of compensability of medical treatment expense, the supreme court has adopted the reasoning that:

"as matter of law ... where an employe [Spencer], in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of that treatment (increased period of temporary total disability, increased permanent partial disability, and the expense of the arthrodesis) (2) because it finds the treatment was either unnecessary or unreasonable....

"As we see it, the conflict here is ... whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming the [doctor who recommended against the arthrodesis] was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting the arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. [Citation ommitted; footnote added.]"

Spencer v. ILHR Department, 55 Wis. 2d 525, 532 (1972). The court went on to set aside the commission's denial of the medical expense, and remanded the case for payment of the medical expense.

Nor was Spencer the only case where the commission was reversed for denying medical expenses simply because the commission believed they were unreasonable. In Oldham v. LIRC, court of appeals case no. 92-2145, unpublished district IV decision (December 2, 1993), a similar result was reached. In Oldham, the commission denied payment of certain home health care expenses as not reasonably required. The court of appeals accepted that finding but, citing Spencer, noted that "when an employe in good faith relies on a physician's recommendation for treatment, LIRC must allow compensation for that treatment even if it proves unnecessary." Accordingly, the court remanded the case to the commission to make findings on what the treating doctor recommended and whether Oldham followed that recommendation in good faith. Oldham, at 3-4.

In other words, the commission may not deny a medical expense simply because it finds the treatment unnecessary or excessive. Rather, the commission must also consider whether the treatment was undertaken in good faith reliance on a doctor's orders. (3)

In this case, as in Spencer, there is no evidence the applicant failed to act in good faith; the respondent does not even make that allegation. And the applicant testified that treating surgeon An referred her to Drs. Gorelick, Rapkin and Mawhiney for further treatment; testimony which the respondent did not dispute at hearing or in its briefs to the commission. In short, all the disputed medical expense in this case must be ordered paid.

The applicant incurred $87 in treatment expense from Affiliated Health of Wisconsin, all of which is outstanding; $1,153.40 in treatment expense from Dr. Gorelick (in association with Affiliated Health of Wisconsin), of which the applicant has paid $138.40, Blue Cross has paid $769.12, and $245.88 remains outstanding; $69 in prescription expense from Gollash Pharmacy, all of which was paid by the applicant; $1,872 in treatment expense from Dr. Mawhiney, of which $101 was paid by the applicant and $1,771 was paid by some unnamed insurer; $2,445 in treatment expense from Dr. Mawhiney, all of which is outstanding; $216.80 from West Allis Memorial Hospital, all of which is outstanding; and $1,155.44 in medical mileage, all of which is outstanding.

The order shall be left interlocutory on the issues of future medical and psychological expense, permanent disability, and vocational rehabilitation.

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

INTERLOCUTORY ORDER

The findings of fact and interlocutory order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

(1) To the applicant, Jennifer Reek, the sum of One thousand one hundred fifty-five dollars and forty-four cents ($1,155.44) in medical mileage, and Three hundred eight dollars and forty cents ($308.40) as reimbursement of medical treatment expense.

(2) To Affiliated Health of Wisconsin, Eighty-seven dollars ($87) in medical treatment expense.

(3) To Dr. Jeffrey Gorelick, Two hundred forty-five dollars and eighty-eight cents ($245.88) in medical treatment expense.

(4) To Rapkin Medical Associates, Two thousand two hundred forty-five dollars ($2,245).

(5) To West Allis Memorial Hospital, Two hundred sixteen dollars and eighty cents ($216.80).

(6) To Blue Cross, Seven hundred sixty-nine dollars and twelve cents ($769.12) in medical treatment expense.

(7) To the unnamed insurer who paid part of Dr. Mawhiney's bill, One thousand seven hundred seventy-one dollars ($1,771).

Dated and mailed January 31, 1997
reekjen.wrr : 101 : 8 ND § 5.50

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In this case, ALJ Collins paid most of the disputed medical expenses, including expenses for treatment by physiatrist Gorelick, but denied the expense of treatment with osteopath Rapkin and chiropractor Mawhiney. In his decision, the ALJ stated that he denied the Rapkin and Mawhiney expenses because he thought Drs. An and Gorelick provided ample treatment. He also referred to the opinion of Dr. Haskell, M.D., the employer's medical expert, who opined that the Rapkin's acupuncture treatment was directed solely at the applicant's long-standing depressive disorder, and that Dr. Mawhiney's chiropractic treatment was simply unnecessary. The commission reversed the denial of the expenses of treatment by Drs. Rapkin and Mawhiney, under Spencer v. ILHR Department, supra.

The commission did consider an alternative basis for denying the medical treatment expenses: if the treatment was not for the work injury, it should not be paid. This was the principle underlying the court of appeals decision in City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App., 1982). In that case, the court of appeals held that LIRC should have held a credibility conference with an ALJ before reversing his finding that the disputed treatment was for an unrelated congenital condition rather than a work injury. Without the conference, the commission was bound by the ALJ's finding that the disputed treatment was not for a work injury, so Spencer did not apply.

A similar argument might be made in this case, based on the ALJ's reference to Dr. Haskell's opinion that the acupuncture treatment was solely related to the applicant's long-standing depressive condition. Of course, Dr. Haskell thought none of the treatment the applicant received, beginning with the two-level laminectomy in 1991, was related to her work injury. The ALJ quite reasonably rejected this theory, both in his 1991 decision and in the decision now on review under which he paid most of the other claimed medical expenses. The ALJ's reference to Dr. Haskell's opinion, then, could only have meant to refer to his opinion that the chiropractic treatment was unreasonable and unnecessary, not to revisit the already-decided issue of causation.

Because the commission's reversal did not rest on the credibility of any witness who testified, no credibility conference under Transamerica Ins. Co. V. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972) was required.

cc: ATTORNEY DAVID L STYER
KASDORF LEWIS & SWIETLIK SC

ATTORNEY AHMED J QUERESHI
CRIVELLO CARLSON MENTKOWSKI & STEEVES SC


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Footnotes:

(1)( Back ) Department of Industry, Labor and Human Relations prior to July 1, 1996.

(2)( Back ) The case involved a dispute over the reasonableness of knee replacement surgery.

(3)( Back ) See also the discussion of Spencer in Neal and Danas, Worker's Compensation Handbook, sec. 5.46 (3d ed. 1990) and sec. 5.43 (1993 supp.). Indeed, the Spencer holding which requires the payment of unnecessary medical expense if undertaken in good faith underlies the recent commission decisions interpreting the medical expense dispute resolution process under sec. 102.16 (2) and (2m), Stats. Mary Sommerfeldt v. Ace Hardware Ripon, WC claim no. 93039786 (LIRC, December 13, 1995), aff'd sub nom Ace Hardware Ripon v. Mary Sommerfeldt, Fond du Lac County Circuit Court case no. 96 CV 8 (1996). See also: Robert Nitschke v. Parkway Garage, WC claim no. 95005279 (LIRC, November 7, 1996) and Judianne Hull v. Copps Corporation, WC claim no. 91039585 (LIRC February 28, 1995), reasoning on this point adopted sub nom. Copps Corporation v. LIRC and Judianne Hull, Portage County Circuit Court case no 95-CV-93 (October 3, 1995).