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

RUBY RODGERS, Applicant

W A KRUEGER CO BROOKFIELD, Employer

ZURICH INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94036726

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed. At issue is the liability of the employer and the insurer (collectively, the respondent) for certain medical expenses.

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 was born in 1940 and has done bindery work for 28 years. She eventually developed pain and swelling in her hands. She treated at a clinic recommended by the employer (Community Associates), and then her family doctor (Jones- Nosacek). While seeing Dr. Jones-Nosacek, the applicant also treated with a neurologist (Stern) on her own referral.

Dr. Jones-Nosacek referred her to a specialist (Kuehn). Dr. Kuehn diagnosed carpal tunnel syndrome and recommended surgery. He thought work, diabetes and hyperthyroidism all played a causative role in the applicant's condition.

The applicant then saw another specialist (Siegert) on her own referral, for a second opinion. He confirmed the carpal tunnel diagnosis, but recommended tests to see if elevated thyroid levels might be playing a role. If the tests were normal, he would conclude the problem was work-related. Dr. Siegert, too, recommended surgery.

Based on Dr. Siegert's opinion, the respondent stopped paying the medical expenses. It denied liability on the theory that the condition was not caused by work. Eventually, the applicant's gynecologist recommended she see a Dr. Sundaram. Dr. Sundaram thought the applicant's condition was work-related, and he in turn referred her to Alan Pohl, M.D., for surgery. Dr. Pohl then performed carpal tunnel surgery on both wrists.

After the surgery, the insurer referred the applicant to an independent medical examiner, Marvin Wooten, M.D. He opined that the applicant's condition was caused by her years of bindery work, her diabetes notwithstanding, and that the surgery was reasonable and necessary treatment. He also opined that the carpal tunnel condition and surgeries caused temporary total disability, but that she should recover with no permanent disability. On this opinion, the respondent conceded and paid temporary disability.

An employer is liable for medical expenses that are reasonably required to cure or relieve the effect of the work injury under sec. 102.42 (1), Stats. However, this liability is limited by sec. 102.42 (2)(a), Stats., which provides that an injured worker is permitted two choices of practitioner, after which choices must be approved by the employer or its insurer. (1) As the applicant points out, though, the choice restrictions under sec. 102.42 (2), Stats., do not apply to "treatment expense incurred by the employe for necessary treatment to cure and relieve the employe from the effects of occupational disease prior to the time that the employe knew or should have known the nature of his or her disability and its relation to employment." Section 102.42 (1), Stats.

The issue in this case is whether the respondent must pay for the carpal tunnel surgeries performed by Dr. Pohl. The respondent admits the surgeries were necessary to treat an injury caused by work, and that the applicant sustained temporary disability related to the surgeries. On the other hand, the applicant was well beyond the second "choice" of practitioner, as choices are counted under sec. 102.42 (2)(a), Stats., when she treated with Dr. Pohl. Stated another way, then, the question is whether treatment which is reasonable, necessary, and substantially cures a conceded work injury, but is nonetheless beyond the second choice of practitioner, may be paid under sec. 102.42 (2)(a), Stats.

The ALJ paid the surgery expenses, but not the consultations leading to the surgeries. She noted that Dr. Wooten agreed that the surgeries were necessary because of work exposure, and that the employer would have had to pay for the surgeries had they been done by one of the first two practitioner choices. She also noted that the underlying purpose of the workers compensation act is to ensure that employes who become injured or ill through their employment receive prompt and comprehensive medical treatment necessary for their well-being, and that the law should be liberally construed to achieve this end. UFE Inc. v. LIRC, 201 Wis. 2d 274, 288 (1995).

However, in UFE Inc. the supreme court was faced with an ambiguity, that is, two reasonable, alternative interpretations of the part of sec. 102.42 (2)(a), Stats., dealing with referrals to out-of-state practitioners. The court accepted the commission's interpretation, in part because it was the one most likely to advance the basic purpose of the law. UFE Inc., supra. According to the respondent, however, the part of sec. 102.42 (2), Stats., at issue here has only one reasonable interpretation: any expense for treatment by an unapproved practitioner beyond the second choice, no matter how reasonable, must be denied.

The applicant's response is that sec. 102.42 (2), Stats., does not expressly state what should be done with the expense of treatment beyond the second choice. Thus, the applicant contends, the commission is free to fashion a kind of no-harm-no- foul rule. Under the rule, unnecessarily duplicative treatment caused by doctor-shopping would be denied, but treatment that would have been paid if rendered by one of the first two choices should not be denied simply because it was rendered by a third or subsequent choice.

However, while the statute fails expressly to say so, the commission has consistently held that a respondent is not liable for any treatment after the second choice. (2) In addition, the court of appeals noted that noncompliance with sec. 102.42 (2)(a), Stats., means the affected expenses were not covered under the workers compensation act. UFE Inc. v. LIRC, 193 Wis. 2d 361, 368-71 (Ct. App., 1995), affirmed 201 Wis. 2d 274 (1996). Thus, the commission cannot conclude that sec. 102.42 (2)(a), Stats., as it has been construed to date, permits the "no-harm-no-foul" interpretation suggested by the applicant. In short, treatment expense beyond the third [should be second-JJS] choice is not covered and may not be ordered paid.

However, the applicant next asserts that, since Dr. Siegert had suggested that the applicant's diabetes or thyroid condition might have played a role, the applicant neither knew nor should have known that her carpal tunnel condition was the result of work. The fact that the employer put the causation issue in dispute based on Dr. Siegert's opinion, the applicant argues, bears out the impossibility of her "knowing" that her disability was caused by work. Thus, the "choice" restrictions would not apply under sec. 102.42 (1), Stats., at least until Drs. Pohl and Wooten issued their expert medical opinions that the condition was the result of occupational disease.

Of course, the "knew or should have known" exception to the choice restrictions only applies to cases of occupational disease. (3) In this case, the medical opinions of both treating doctor Pohl and independent medical examiner Wooten are framed in terms of an appreciable period of workplace exposure that either was at least a material contributory factor in the onset or progression of her condition. For the purposes of this decision, then, the commission assumes that the applicant's condition was caused by occupational disease.

Nonetheless, the commission cannot conclude that the applicant neither knew nor should have known that her condition was related to work simply because the point was put in issue to some extent by Dr. Siegert. If so, practitioner choice would be unlimited whenever causation is disputed in an occupational disease case. That result is not reasonable.

Moreover, the "knew or should have known" exception under sec. 102.42 (1), Stats., is analogous to statutes of limitation that begin to run when a plaintiff "knew or should have known" that he was injured by the defendant. Statutes using this phrase are said to apply a "discovery rule;" one such statute is sec. 893.55, Stats., dealing with medical malpractice.

In a case decided under that statute, the supreme court construed "knew or should have known" to require more than a mere "subjective belief by a layman as to ... cause," but to require a "reasonable likelihood for an objective belief." Clark v. Erdman, 161 Wis. 2d 428, 446-47 (1991). Thus, the statute of limitations does not begin to run the instant the injured layperson suspects malpractice. The court went on to explain that some objective basis for a plaintiff to believe her injury was the result of malpractice, not simply her subjective lay belief, was necessary to trigger the statute of limitations.

On the other hand, the court specifically stated that discovery of an injury is not "put on hold until an expert officially confirms the injury and the fact that the actor was negligent." Clark, supra, at 161 Wis. 2d 446-47 (1991). The court went on to hold:

"While an unsubstantiated lay belief is not sufficient for discovery to occur, the existence of a reasonable likelihood for an objective belief as to an injury and its cause does not require any sort of formalistic approach as is suggested by Clark. If a plaintiff has information that would constitute the basis for an objective belief of her injury and its cause, she has discovered her injury and its cause. It does not matter whether her objective belief resulted from information `officially' obtained from an expert witness. Nor, as [prior court of appeals cases] suggest, does it necessarily always matter whether the objective belief resulted at all from information obtained from any `expert' person."

Clark, at 161 Wis. 2d 448.

In our case, the applicant had been told by medical experts Jones-Nosacek and Stern that she had a work injury. Even Dr. Siegert suggested that the applicant's injuries could have occurred from work as well as diabetes or hyperthyroidism. Thus, the applicant clearly had a "reasonable likelihood for an objective belief" that her condition was caused by work well before she began treating with Dr. Pohl. The "knew or should have known" exception to the practitioner choice rule does not apply in this case.

This does not mean the applicant was left without a remedy for her medical expense treatment. She could have sought the insurer's approval for the surgery by Dr. Pohl. If the insurer had withheld approval, the applicant could have asked Dr. Jones- Nosacek for a referral to Dr. Pohl or another qualified surgeon. Or she could have demanded reasonable treatment from a surgeon whom the employer was willing to pay.

In short, the commission cannot order payment of the medical expenses at issue in this case. The commission declines to order payment under a no-harm-no-foul rule, even though Dr. Wooten has stated the expense is reasonable and necessary. Further, the applicant had a reasonable likelihood for an objective belief the carpal tunnel syndrome was work-related, so the sec. 102.42 (1), Stats., exception to the 102.42 (2)(a), Stats., does not apply. In short, the applicant was limited to two choices under sec. 102.42 (1) and (2)(a), Stats., and Dr. Pohl and his treatment were beyond the second choice.

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed December 4, 1996
rodgeru.wrr : 101 : 8 ND § 5.48

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer about witness credibility and demeanor with the ALJ who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The commission reached its decision on essentially the same set of facts as found by the ALJ. It reversed based on a different legal conclusion concerning the application of sec. 102.42 (2)(a), Stats., not on the demeanor of any witness who testified.

cc: ATTORNEY ROBERT C ANGERMEIER
ANGERMEIER & ROGERS LAW OFFICES

ATTORNEY JOSEPH BERGER
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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Footnotes:

(1)( Back ) Treatment with a practitioner's colleague, or on referral, is considered all part of the "choice" of the initial practitioner.

(2)( Back ) Sazama v. Collins Construction and Remodeling, WC claim no. 92068079 (LIRC, November 7, 1996); Falluca v. Palermo Villa, Inc., WC claim no. 88013914 (LIRC, December 6, 1995); Tellman v. Baraboo Sysco Food, WC claim no. 90043471 (LIRC, September 18, 1995); and Santspree v. Jones Intercable, WC claim no. 91057737 (LIRC, April 28, 1995).

(3)( Back ) Note, though, while the "knew or should have known" rule only applies to cases of occupational disease, the question is not whether the applicant knew or should have known her condition was occupational disease, but only that she knows the nature of her disability and that it is related to work.