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


SHERRY L ROFFERS, Applicant

TRIUMPH TWIST DRILL COMPANY, Employer

WORKER'S COMPENSATION DECISION
Claim No. 94057868


The administrative law judge (ALJ) issued her findings of fact and interlocutory order in this case on January 9, 1996, following hearings on May 16 and August 15, 1995, and the close of the record on December 26, 1995. However, based on the credible assertions of the parties, the applicant did not obtain a copy of the ALJ's order until July 26, 1996, and the employer (1) did not receive a copy until August 5, 1996. Each party filed a petition for commission review within 21 days of receipt of the ALJ's order. Thereafter, both the employer and the applicant submitted briefs.

Prior to the hearing, the employer conceded jurisdictional facts, and an average weekly wage of $406.80.

At issue is whether at the time of the alleged injury the applicant's injury arose out of the applicant's employment while she was performing services growing out of and incidental to that employment. If a compensable injury is established, the issues also include the nature and extent of disability, liability for medical expenses, and the applicant's eligibility for vocational rehabilitation benefits.

The commission carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission sets aside the ALJ's Findings of Fact and Interlocutory Order, and substitutes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Employment, work injury, and treatment.

The applicant was born in 1961. She began working for the employer, a manufacturer of drill bits, in 1990. Her conceded average weekly wage was $406.80, or $10.17 per hour for a forty- hour week.

The applicant was a hired as a manual split-point operator, a machine operator job which involves sharpening individual drill bits and putting the bits in a V-block. She did other jobs, including that of auto-split point operator which involved a different type of set up and more lifting. The maximum lift in either of these jobs was fifty pounds. The employer introduced into the record a videotape that shows machine operation and set-up work involving repetitive hand motion and work with the arm raised or extended.

After starting work for the employer, the applicant underwent a substantial amount of chiropractic treatment for pain in her right arm, back and neck from Larry McKitrick, D.C. Dr. McKitrick took the applicant off work for some of these problems, although he testified that the applicant never told him she thought the pain was caused by work. Instead, the pain or flare-ups of pain during this period were attributed to other causes, such as shampooing carpet at home, a November 1991 auto accident, and picking blueberries in the spring of 1993.

The applicant testified that, in early November 1993, she began to experience pain in her right thumb which started without a specific traumatic injury. She testified that she told her supervisor about the pain, and that she planned to have her chiropractor look at it. Indeed, Dr. McKitrick examined her thumb on November 12, 1993.

The applicant then saw James K. Wiesner, M.D., about her thumb on November 16, 1993. He noted a four-day history of pain in the right thumb, which he diagnosed as a mild traumatic arthritis secondary to over-usage. He prescribed ibuprofen, and recommended she modify her work to allow her to rest her thumb. The applicant testified she did not understand Dr. Wiesner to mean that her condition was work-related.

The applicant then began treating with Kevin L. Tadych, M.D., on January 10, 1994. She complained of pain in her thumb and wrist, skipping her elbow, and radiating through her shoulder to her neck. He did a trigger point injection, and wanted to do EMG testing. Dr. Tadych saw the applicant again on January 20, 1994, at which point he took her off work. He began to suspect mild myofascitis.

On January 31, 1994, Dr. Tadych completed a physician's report as part of the applicant's claim for group disability benefits from Employment Benefits Systems, Inc. He stated the applicant could not work due to a painful upper right extremity. The form indicates the doctor thought the condition was work related, but that the applicant did not wish to file a workers compensation claim. The form was countersigned by Linda Stevens, the employer's assistant personnel manager on February 10, 1994.

On February 17, 1994, Dr. Tadych diagnosed a myofascia type problem. Noting that the applicant was not a surgical candidate, he set up an appointment with James Mullen, M.D.

Dr. Mullen first saw the applicant on March 7, 1994. He noted the onset of thumb pain which rapidly progressed to involve the entire right arm and shoulder. He noted diffuse right scapular and cervical dysfunction, possible mild reflex sympathetic dystrophy, and multiple myofascial findings in the upper right quadrant. He recommended physical therapy and a course of trigger point injections. The injections were done by Gurkirpal Sikka, M.D., and his colleague (Dr. Blum) between March and May 1994.

In a letter to the applicant's attorney dated May 11, 1994, Dr. Mullen reported that repetitive work trauma had led to myofascial pain symptoms, which progressed to an autonomic nervous system hyperactivity with resultant reflex sympathetic dystrophy. He could not estimate an end of healing.

Shortly thereafter, Dr. Mullen ordered work hardening therapy. The applicant did not tolerate this well, and in mid-June Dr. Mullen discontinued work hardening therapy. He subsequently released her to work on July 7, 1994, subject to temporary restrictions against lifting more than 30 pounds bilaterally, against carrying more than 25 pounds with the right arm, against above the shoulder work, against repetitive right arm use, and limiting sustained right arm gripping. On July 8, after the applicant sustained increased symptoms after a day of work, Dr. Mullen imposed a four-hour per day restriction as well.

The applicant in fact worked on light duty from July 8 to September 22, 1994, four hours per day at $8.08 per hour. The employer had given her a light duty job which complied with the applicant's restrictions. This involved putting drill bits in a V-block, which is one part of the work done by a manual split point operator. She understood the job to be temporary.

On September 22, 1994, Dr. Mullen noted intermittent increased symptoms, related to the applicant's reflex sympathy dystrophy and scapular dysfunction. He opined that she had reached an end of healing, and rated permanent partial disability at 5 percent at the shoulder and 3 percent at the neck secondary to persistent range of motion restrictions. Dr. Mullen set permanent restrictions of a 10-pound maximum lift or carry with the right arm, a 25-pound total bilateral lift, no repetitive arm use in a forward or overhead motion, and required breaks to stretch and ice.

The applicant continued to work under these restrictions through the first week in January 1995. On January 16, 1995, Dr. Mullen saw the applicant again, and on this occasion stated he was continuing the permanent restrictions set out above.

Meanwhile, the applicant also sought vocational rehabilitative services from DVR (2) beginning in June 1994. Her DVR counselor was Dennis Carriere. He testified that in cases involving a work- related injury he generally would contact an individual's employer to see if work was available. In this case, Mr. Carriere did ask the employer whether it had permanent full-time work within the applicant's restrictions.

The employer responded that no determination about what type of full-time work would be offered could be made until an independent medical examination was done. An independent medical examination was scheduled for December. Meanwhile, Mr. Carriere prepared an individualized written rehabilitation plan (IWRP) on November 9, 1994, recommending course work leading to an associate degree in accounting.

Mr. Carriere testified that if the employer had offered full-time, long term work before the applicant started her accounting classes in January 1995, she would not have been retrained. However, he testified, the employer did not offer permanent work when he contacted the employer.

Subsequently, however, on January 16, 1995, shortly before she started her classes, the employer sent the applicant a letter offering her work. The job offered was a full time job as an auto split point operator. The job duties were apparently within the restrictions set by the employer's independent medical examiner, Lester A. Owens, D.O., following an office visit on December 6, 1994. However, the duties were not within the restrictions set by Dr. Mullen. The applicant did not accept the offer.

The record does not indicate that Mr. Carriere or the applicant undertook a structured job search in the general labor market in this case. Mr. Carriere did testify, though, that in his opinion there was no other work available for the applicant within her restrictions. He thus went ahead with the IWRP, and the applicant began her accounting classes.

2. Discussion.

There are four main issues raised on briefs to the commission: (1) did the applicant give the employer adequate notice of an alleged work injury? (2) did she in fact sustain an injury arising out of her employment with the employer? (3) is the applicant eligible for vocational rehabilitation benefits? and (4) is the employer liable for the expense for treatment by Dr. Tadych and by Dr. Mullen on Tadych's referral, even though these were beyond the "second choice?"

a. Notice of injury.

The employer argues first that the applicant did not notify the employer she was claiming a work injury until July 14, 1994, even though she knew by May 11 that Dr. Mullen considered the problem work-related. The employer admits it knew about her thumb symptoms which the applicant testified she reported in November 1993, but not that they arose from her employment. The employer contends it had no knowledge of her general myalgia complaints until July 1994, by which time she had been off work several months.

However, the commission decides the notice issue against the employer for several reasons. First, the employer knew of the injury by February 1994, when Dr. Tadych reported to the employer's group disability insurer that work was a cause of the applicant's upper right myofascitis. Specifically, the group disability form stated that although the doctor thought the condition leading to the applicant's disability claim was work- related, she was not filing a claim because she did not have a traumatic injury at work. As stated above, the employer's personnel manager signed the form in mid-February 1994.

True, Dr. Mullen later gave a more detailed diagnosis including a myalgia-type condition involving unscheduled injuries. However, it is hard to see how the employer can claim it was unaware of Dr. Tadych's opinion that the applicant had a work injury. The law does not require that the applicant claim compensation for an injury within 30 days, only that the employer be informed of the injury within 30 days of when the injured worker ought to have known of the injury and its relation to work. That happened here, when the applicant told the employer about her painful thumb in November 1993, and Dr. Tadych provided the employer with his physician's statement in January 1994 relating the condition to work. The fact that Dr. Mullen's more detailed diagnosis in May 1994 led the applicant to claim compensation in July 1994 does not change the fact that the employer was notified earlier. In short, the employer had notice of the injury in January or February 1994, within 30 days from the time the applicant knew or should have known that her symptoms were from a work injury.

Moreover, the courts have consistently treated the thirty- day notice requirement as an affirmative defense, requiring the employer to prove prejudice. Indeed, what the supreme court requires from insurers is actual evidence of prejudice, not simply an argument of how prejudice might occur. Manitowoc County v. ILHR Department, 88 Wis. 2d 430, 436 (1979).

Thus, even if the commission were to accept the employer's argument that the applicant should have known she had a work injury by May 1994 but did not tell the employer until July 1994, the record contains no evidence of prejudice caused by the delay. True, the January to July period of disability previously paid by the group disability insurer became a period of worker's compensation temporary disability for which the worker's compensation insurer is liable. However, that would have happened anyway; earlier notice to the employer would not have stopped the disability or led Dr. Mullen to release the applicant to light duty sooner. The employer suggests it would have gotten an independent medical examination earlier, but even after finding out that the applicant intended to pursue her worker's compensation remedy in July 1994, it did not obtain an independent medical examination until December. Moreover, the independent medical examiner, Dr. Owens, did not indicate his opinion would have been any different if he had examined the applicant earlier. Again, the employer bears the burden of proving actual prejudice on a 30-day notice defense, and it has not done so here.

b. Work injury arising out of employment?

The commission must next decide whether the applicant has proven that she sustained an injury arising out of employment while performing services growing out of and incidental to her employment, and the nature and extent of disability from such an injury. That is, has the applicant proven that work caused her disability? Resolution of this question, of course, turns on the opinions of the medical experts.

Dr. Wiesner blamed the initial symptoms in the thumb on over-usage, although he did not specifically say over-usage at work.

Dr. Tadych, as noted above, diagnosed myofascitis in January 1994, and marked a box on the group disability application indicating the condition arose out of employment. He then referred the applicant to Dr. Mullen. Respondent's Exhibit 4.

Dr. Mullen, of course, opined that repetitive trauma type injuries at work directly caused disability from myofascial pain syndrome that progressed to an autonomic nervous system hyperactivity with resultant reflex sympathetic dystrophy. As noted above, he opined she plateaued on September 22, 1994, with significant work restrictions. Dr. Mullen also rated permanent partial disability at five percent at the shoulder and 3 percent to the body as a whole for the neck. Applicant's Exhibit A.

Dr. Sikka, who did the trigger point injections on the referral of Dr. Mullen, indicated that he thought the success of the injections confirmed the diagnosis of sympathetically mediated pain or reflex sympathetic dystrophy. He noted her condition had improved dramatically with treatment, and that he believed the dystrophic pain was gone, leaving her with myofascial pain. He stated he thought the applicant's myofascial pain syndrome was secondary to repetitive trauma at work, and opined that such injuries take months to heal, often leaving residual limitations. Respondent's Exhibit 5.

Dr. McKitrick testified at the hearing that he did not know whether the applicant's condition was caused by an appreciable period of workplace exposure. He also testified that he had no opinion as to whether or not her condition was work related.

Dr. Owens, who examined the applicant on behalf of the employer, noted the applicant underwent considerable chiropractic treatment for her back, neck and right shoulder from December 1990 to beyond the November 1993 date of injury. However, he went on to note that the applicant never told the chiropractor she thought the problems were caused by work. In fact, the chiropractor listed some other likely causes, blueberry picking, carpet shampooing, and auto accident. Dr. Owens also reported that his viewing of the videotape of the work duties did not show enough force or repetitiveness to account for the applicant's injuries. He also noted that the applicant's complaints were entirely subjective. He believed that, if she suffered from sympathetically mediated pain, work was not the cause. He also saw no basis for any permanent disability. He noted that her symptoms waxed and waned while off work, which he thought was inconsistent with work being the cause. In sum, he opined that the applicant's symptoms were not related to work, but merely a manifestation of a non-work related condition. Respondent's Exhibit 8.

Dr. Mullen then responded to Dr. Owens' report. He pointed out that the chiropractic treatment, which began shortly after the applicant started working for the employer, actually supports the idea that repetitive, but minor trauma over years of employment caused the applicant's disability. In other words, while the applicant may not have known the symptoms for which she sought chiropractic treatment were from work exposure, they were.

Dr. Mullen also stated that his disability ratings were based on the persistent and consistent findings on examination, and while her condition improved as Dr. Sikka noted, she still was disabled. In fact, Dr. Mullen indicated that because the applicant's condition improved with treatment, it was more reasonable to believe it was the result of repetitive trauma rather than simply coincidental symptom manifestation. He also stated that waxing and waning, or re-exacerbation, with household duties is not uncommon with repetitive strain type injuries. Mullen's March 9 letter, Exhibit B.

Next, Dr. Mullen opined that, even after reviewing chiropractor McKitrick's records, he remained of the opinion the applicant's symptoms arose from a repetitive trauma injury in the workplace. He also clarified that the restrictions he set applied only to a job, like the one with the employer, that involved exposure to repetitive trauma. Specifically, he opined that the applicant could attend classes and ultimately work as an accountant. Exhibit F, letter from Michael Roe dated August 14, 1995.

Lastly, Dr. Mullen opined that, after reviewing the tape of the applicant's work activities, he remained of the opinion that the activities shown in the tape caused her condition. He indicated that perhaps only a small number of workers would develop the condition from this exposure, but that the applicant was one of them. Exhibit H, December 7, 1995 letter from Michael Roe.

The commission finds the report of Dr. Mullen to be more credible than that of Dr. Owens. As a treating doctor, Dr. Mullen had substantial familiarity with the applicant's case. Further, his opinion is more consistent with the applicant's credible testimony about physical complaints and residual capacity. In addition, his opinion is consistent with the opinions and medical notes of Drs. Wiesner, Tadych and Sikka. Further, the commission is satisfied that Dr. Mullen based his opinions and diagnosis on a sufficiently accurate history from the applicant.

Moreover, Dr. Mullen had the opportunity to review the notes of the chiropractor, as well as a videotape of the applicant's job duties, albeit after making his initial diagnosis. Nonetheless, his opinion remained the same. In this regard, this case is the reverse of the Pressed Steel line of cases, where treating doctors were given materially inaccurate information by injured workers and changed their opinion on receipt of the correct information. (3) Here, while the information that Dr. Mullen had originally was incomplete, when he got complete information it did not change his opinion. (4) The commission is satisfied that the applicant has eliminated legitimate doubt on the issue of whether work caused her disability.

c. DVR retraining.

The next issue is the applicant's eligibility for benefits for vocational rehabilitation under sec. 102.43 (5) and 102.61, Stats. These sections, and the provisions of the administrative code dealing with them, have recently been modified as a result of recent legislative changes. However, because the date of injury in this case (November 12, 1993) is before the effective date of the changes to sec. 102.61, Stats. (May 4, 1994), the "old" law still governs. (5) While the statute does allow for the appointment of a private rehabilitation counselor before May 4, 1994, that was not done in this case.

Under Massachusetts Bonding & Ins. Corp. v. Industrial Commission, 275 Wis. 505 (1957), once the department or the commission finds a work injury causing permanent disability or restrictions, those agencies must generally defer to the determination of DVR as to whether the injured worker is eligible for vocational rehabilitation services, including retraining. Thus, if DVR certifies the injured worker for retraining, the applicant is eligible in most cases for benefits during vocational rehabilitation under sec. 102.43 (5) and 102.61, Stats.

However, the commission or the department may deny vocational rehabilitation benefits under ch. 102, Stats., to injured workers, despite DVR certification, under two circumstances:

1. DVR's interpretation of the vocational rehabilitation law is entirely outside the scope of reasonable interpretation and so a clear abuse of administrative power; or

2. Highly material facts were misrepresented to, or withheld from, DVR during the certification process.

The Supreme Court set out these guidelines in Massachusetts Bonding, supra, at 275 Wis. 512, based on its conclusion that the legislature did not intend to give the Industrial Commission (and so its successors DILHR, DWD and LIRC) the power to interpret the vocational rehabilitation laws. The court went on to say:

"We conclude that any power of review given to the Industrial Commission is limited.

"Unless it is shown before the commission that highly material facts were misrepresented to or withheld from the state board [DVR] or that the state board has applied an interpretation of the rehabilitation laws which is entirely outside the reasonable scope of interpretation and hence a clear abuse of administrative power, the Industrial Commission must find that any applicant who is receiving aid from the state board is also entitled to it."

Id.

There is no evidence that highly relevant facts were withheld from, or misrepresented to, DVR. The closer question is whether DVR abused its authority by failing to follow its own procedures during the certification process. The DVR standard operating procedure in worker's compensation cases under both the "old" law (6) and the "new" law (7) is to first attempt to place the injured worker with the former employer, then to find suitable work in the general labor market.

In this case, the employer asserts that it offered work to the applicant which she refused, thwarting any efforts to return the applicant to her old job or another with the named employer. However, the commission must reject this argument. The employer offered the applicant full-time work at a job to which Dr. Mullen had only released her to work part-time, and had reiterated this restriction on January 16, 1994. Exhibit 12. While the offer was made in compliance with Dr. Owens' opinion, the applicant was entitled to refuse the job in good faith reliance on the restrictions set by her treating doctor. (8)

Second, if the employer had continued to offer the applicant a four-hour work day at $8.08 per hour, she would have earned well under one-half of her average weekly earnings for her full time work before the injury. Even full time, her wage for a forty hour week at $8.08 per hour would have been only 79.4 percent of her pre-injury wage of $10.17. Either way, the applicant simply could not earn 85 percent of her pre-injury wage. Thus, the work offered to her by the employer would not have been "suitable work," at least as that term is defined in the "new" rules, (9) even assuming she could do it.

That does not end the inquiry into DVR abuse of administrative power, though. As noted above, DVR policy still requires a work search, or an effort to find suitable work with other employers, prior to certification for retraining. In this case, there is no evidence that counselor Carriere tried to place the applicant with another employer. Rather, he simply concluded there were no other jobs available for her. In this respect, it appears that counselor Carriere failed to follow DVR policy and procedure.

However, the commission and the courts have held that DVR's failure to follow its own rules is not automatically a clear abuse of administrative power. (10) Specifically, the commission has, on numerous occasions in the past, faced the specific issue of whether DVR's failure to comply fully with its policy regarding job placement efforts before certifying an injured worker for retraining amounted to a clear abuse of administrative power. (11) The commission's guiding principle in such cases is: was the worker's job search reasonable and adequate despite a lapse in compliance with DVR policy? (12)

One might argue that because Dr. Mullen restricted the applicant to half-time work, no job would likely be suitable under the eighty-five percent rule. However, the half-time restriction was set with respect to the repetitive work the applicant did for the employer. Dr. Mullen's restriction to half-time work did not apply to work that did not involve exposure to repetitive trauma. See applicant's Exhibit F. Under these facts, Mr. Carriere's belief that there was no work for the applicant, so that a general work search could be bypassed, was unreasonable.

In short, the commission concludes that Mr. Carriere's failure to attempt job placement efforts to determine whether he could find work in the general labor market amounted to an abuse of administrative power. Benefits under secs. 102.43 (5) and 102.61, Stats., must be denied.

d. Medical expenses.

The final issue is whether the expense for treatment after Dr. Wiesner should be paid.

The applicant first treated with chiropractor McKitrick, then with Dr. Wiesner, then with Dr. Tadych. Dr. McKitrick did not refer the applicant to Dr. Wiesner, and Dr. Wiesner did not refer applicant to Dr. Tadych. Thus, Drs. Tadych, Mullen, and Sikka all seem beyond the second choice of practitioner. Ordinarily, the expense of treatment with these practitioners would have to be denied in the absence of prior approval from the insurer under sec. 102.42 (2)(a), Stats.

The applicant points out she only treated briefly with Dr. Wiesner. She also contends that because her supervisor recommended Dr. Tadych and because the employer received copies of his report, treatment with him was in fact by mutual consent. Further, she asserts that she did not know until she treated with Dr. Tadych or Dr. Mullen that her condition was work-related, and that sec. 102.42 (2), Stats., does not contemplate such a situation. She concludes that it is ironic that the ALJ paid the bills of the doctors who did not diagnose the problem, and denied those of the doctors whom she found more credible.

Two of the applicant's arguments may be dismissed easily. Length of treatment does not matter under sec. 102.42 (2), Stats. Moreover, being aware that a worker is seeing a third doctor is not the same as consenting to treatment by him or her. There is very little an employer can do to prevent an injured worker from seeing as many doctors as he or she can afford, and being aware of it should not make the employer liable. Further, the fact that a supervisor may have recommended a particular doctor cannot amount to "mutual consent" where neither the applicant nor the employer were yet aware that the condition was work-related.

However, the law does contemplate the situation where an injured worker seeks treatment for a work injury before knowing it is work-related. The fact is, 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. (13)

In this case, the earliest that applicant could have known that her condition was work-related was when Dr. Wiesner diagnosed arthritis from over-usage. Indeed, the employer went to great lengths to prove that chiropractor McKitrick did not associate the symptoms with work. If that is true, Dr. Wiesner would be the first choice, and Dr. Tadych the second. Since treatment with Dr. Mullen was on referral from Tadych, and treatment with Drs. Rodriguez and Sikka was on referral from Mullen, all of these medical expenses would be within the second choice.

Of course, this depends on concluding that Dr. Mullen's diagnoses of reflex sympathetic dystrophy and myofascial pain from repetitive trauma describes an occupational disease as opposed to a traumatic injury. The commission generally considers injury caused by repetitive trauma to be occupational disease. See Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982). Moreover, "[b]roadly defined, occupational disease is . . . physical harm that results from occupational exposure that is not so sudden or traumatic as to fit within the definition of an accident." Neal & Danas, Worker's Compensation Handbook, sec. 3.4 (3d ed., 1990). While Dr. Mullen marked the "direct injury" box rather than the "occupational disease" box on the form practitioner's report in exhibit A, it is clear from his narrative reports that he opined the applicant sustained an occupational disease type of injury. (14)

3. Award

The applicant was temporarily totally disabled from January 19, 1994 to July 10, 1994, a period of 24 weeks and three days. At a rate of $271.20 (two-thirds of the conceded average weekly wage rate of $406.80), the compensation for that period is $6,644.40. The applicant was temporarily partially disabled from July 10, 1994 to September 25, 1994, a period of 11 weeks during which she earned $161.60 per week (2 hours at $8.08 per hour) resulting in a wage loss of $245.20 per week. At a compensation rate of $163.47 per week [($245.20 divided by $406.80) multiplied by $271.20], the compensation is $1,798.17.

The total amount of temporary disability compensation in this case is $8,442.57 ($6,644.40 plus $1,798.17). However, the total is subject to an offset of $3,450 for sickness and accident benefits which the applicant received during her period of temporary total disability from Allied Benefits Systems, Inc. Section 102.30 (7), Stats. The amount of temporary disability compensation to which the applicant is entitled under this order, therefore, is $4,992.57.

The applicant sustained functional permanent partial disability at five percent compared to loss of the right arm at the shoulder and at three percent compared to permanent disability to the body as a whole. Compensation for the scheduled loss at the arm is 25 weeks (five percent of 500 weeks), for the unscheduled loss at the neck is 29.25 (three percent of 975 weeks), and for multiple injuries an additional 5 weeks (twenty percent of 25 weeks), for a total of 59.25 weeks. At the weekly rate of $152 (the maximum for injuries occurring in 1993), the applicant is entitled to $9,006 in permanent partial disability, all of which is accrued.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional temporary total and permanent partial benefits awarded under this decision. The total fee is thus $2,799.71 {20 percent of ($4,992.57 plus $9,006.)} This shall be deducted from the applicant's total award and paid within 30 days. The applicant's attorney may seek reasonable costs from his client directly.

After deducting the attorney fee, the applicant is entitled to $11,198.86 for disability compensation, payable within thirty days. In addition, the employer shall reimburse Allied Benefits Systems, Inc., $3,450 for benefits paid during the period of temporary disability.

The applicant also incurred the following expenses for reasonable and necessary treatment to cure and relieve the effects of her injury: from McKitrick Chiropractic, the sum of $642.36, of which the applicant has paid $224.33, TPG has paid $224.33, and $28.68 remains outstanding; from Northern Orthopedics for treatment by Dr. Tadych, the sum of $404.50, all of which was paid by TPG; from Howard Young Medical Center for treatment by Dr. Mullen, the sum of $11,527.50, of which TPG has paid $10,691.60, and $835.90 remains outstanding; from Marshfield Clinic for treatment by Dr. Wiesner, the sum of $679.90, of which the applicant has paid $21.30, Allied Benefits System, Inc., has paid $33.20, and TPG has paid $624.90; from St. Mary's Hospital for treatment ordered by Drs. Sikka, Blum and Mullen, the sum of $1,272.50, all of which is outstanding; from Northwoods Anes. Service, S.C., for treatment by Dr. Sikka, the sum of $5,755, all of which is outstanding; from Northwoods Home Medical for medical supplies, the sum of $98.19, all of which is outstanding; from Synder for prescription expense, the sum of $9.44, all of which is outstanding; from Stoxen Professional Pharmacy, for prescription expense, the sum $10, all of which is outstanding; from Affiliated University Physicians for treatment by Rodriguez, the sum of $318, of which TPG has paid $101.25, $8.49 has been written off, and $208.26 remains outstanding; and from University of Wisconsin Hospitals for treatment ordered by Dr. Rodriguez, the sum of $46.50, all of which is outstanding. In addition, the applicant has established that she traveled 6,270 miles to secure medical treatment, which is reimbursed at $0.26 per mile for a total of $1,630.20.

Because Dr. Mullen opined further treatment might be necessary, this order is left interlocutory to permit claims for additional medical expense and, potentially, for loss of earning capacity.

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

INTERLOCUTORY ORDER

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

Within 30 days from the date of this decision, the employer shall pay all of the following:

(1) To the applicant, Sherry L. Roffers, Eleven thousand one hundred ninety-eight dollars and seventy-one cents ($11,198.71) for disability.

(2) To the applicant's attorney, Michael F. Roe, Two thousand seven hundred ninety-nine dollars and eight-six cents ($2,799.86) as attorney fees.

(3) To Allied Benefit Systems, Inc., the sum of Three thousand four hundred fifty dollars ($3,450) as reimbursement under sec. 102.30 (7), Stats., and Thirty-three dollars and twenty cents ($33.20) for reimbursement of medical treatment expenses.

(4) To McKitrick Chiropractic, Twenty-eight dollars and sixty-eight cents ($28.68) for medical treatment.

(5) To Howard Young Medical Center, Eight hundred thirty-five dollars and ninety cents ($835.90) for medical treatment.

(6) To St. Mary's Hospital, One thousand two hundred seventy-two dollars and fifty cents ($1,272.50) for medical treatment.

(7) To Northwoods Anes. Service, S.C. (or Physician's Accounting) Five thousand seven hundred fifty-five dollars ($5,755) for medical treatment.

(8) To Northwoods Home Medical, Ninety-eight dollars and nineteen cents ($98.19) for medical treatment.

(9) To Synder, Nine dollars and forty-four cents ($9.44) for medical treatment.

(10) To Stoxen Professional Pharmacy, Ten dollars ($10) for medical treatment.

(11) To Affiliated University Physicians, Two hundred eight dollars and twenty-six cents ($208.26) for medical treatment.

(12) To University of Wisconsin Hospitals, Forty-six dollars and fifty cents ($46.50) for medical treatment.

(13) To TPG, Twelve thousand two hundred eleven dollars and sixty cents ($12,211.60) for reimbursement of medical treatment expenses.

(14) To the applicant, the sum of Two hundred forty- five dollars and sixty-three cents ($245.63) for reimbursement of medical treatment expenses, and One thousand six hundred thirty dollars and twenty cents ($1,630.20) for medical mileage.

Jurisdiction is retained to issue such further orders as may be warranted consistent with this order.

Dated and mailed February 6, 1997
roffesh.wrr : 101 : 8  ND § 5.39  § 5.48  § 8.47

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Because the commission's reversal of the ALJ's decision to deny medical expenses, is an issue where witness credibility was not at question, the commission did not confer with the ALJ about witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe the majority has expanded the law in occupational disease cases by allowing benefits beyond the second doctor. The majority seems to indicate that until the applicant knows the correct diagnosis, all treatment expenses should be paid no matter how many choices are made. I agree with the administrative law judge that the applicant exceeded her options in seeking treatment from a third practitioner without the consent of the respondent. I would dissent on the question of medical expenses and agree with the administrative law judge.

________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY MICHAEL F ROE
O MELIA SCHIEK & MC ELDOWNEY SC

ATTORNEY MARY BETH CALLAN
DENISSEN KRANZUSH MAHONEY & EWALD SC


Footnotes:

(1)( Back ) Although Martin Boyer Company, Inc. is listed as insurer in some documents in this file, it was not notified of the hearing or included in the caption of the ALJ's order, leading the commission to conclude it is not a party to this action.

(2)( Back ) The division of vocational rehabilitation, then a subunit of the department of health and social services.

(3)( Back ) Pressed Steel Tank Co v. Industrial Commission, 255 Wis. 333, 335 (1949); Franckowiak v. Industrial Commission, 12 Wis. 2d 85, 90 (1960); and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153-56 (1959).

(4)( Back ) The respondent argues it was error for the ALJ to leave the record open to give the applicant a chance to put exhibit H (Dr. Mullen's report after reviewing the video) in the record. However, on review of questions arising from the conduct of a hearing, such as the granting of continuances or holding a record open, the commission typically gives considerable latitude to the presiding ALJ's discretion. Further, given the way the record was developed in this case, it was not unreasonable to give Dr. Mullen a chance to comment on the video after the hearing.

(5)( Back ) See: sec. 102.03 (4), Stats., and 1993 Wisconsin Act 370.

(6)( Back ) See "DVR Special Procedures for Processing Workers Compensation Referrals," sec 2330 (9), at Neal & Danas, Workers Compensation Handbook, App 4F, pages 4-24 and 4- 25 (3d ed. 1990).

(7)( Back ) Section DWD 80.49 (9), Wis. Adm. Code.

(8)( Back ) See Cindy Herdia v. Superior Linen, WC case no. 94043118 (LIRC, October 3, 1996), and Comet v. LIRC, court of appeals case no. 84-1163 (May 22, 1985).

(9)( Back ) Section DWD 80.49 (4)(d) and (5), Wis. Adm. Code.

(10)( Back ) In Sommer v. Peter Pirsch & Sons Company & LIRC, Court of Appeals case no. 87-1333, District II unpublished decision (March 30, 1988), the court considered DVR's failure to contact an employer about placement and retraining progress or to conduct a general job search. The court acknowledged that DVR had not followed its policy, but pointed out that Sommer had self-referred, been laid off by the employer because it had no work for him, and had conducted his own job search. On this basis, the court found no abuse of administrative power.

(11)( Back ) Marcia Hellmer v. Sheboygan County Comprehensive Health Center, claim no. 88-041428 (LIRC, April 7, 1992); Terri Strzyzewski v. Jerome Foods, Inc., claim no. 92012367 (LIRC, October 19, 1994); Timothy Allen v. Hallbeck Group Design, claim no. 87-013647 (LIRC, May 12, 1992); Leider v. Rocky Knoll Health Care, claim no. 910353377 (LIRC, July 19, 1993), LIRC reversed Manitowoc County Circuit court case no. 93-CV-391 (August 29, 19994), slip op. at page 5, circuit court affirmed, court of appeals case no. 94-2717, unpublished district II decision (June 21, 1995); Gina Derosso v. LIRC, Milwaukee county circuit court case no. 95-CV-006716 (June 20, 1996); Christine Schellin v. LIRC, Dodge County circuit court case no. 93-CV-538 (March 13, 1995), slip opinion at page 11; Joseph Gunzel v. Gajeski Construction, WC claim no 92-045568 (LIRC, October 30, 1996).

(12)( Back ) Hellmer, supra, at page 4; Gunzell, supra, at page 4.

(13)( Back ) LIRC addressed this provision in detail in a recent case, Ruby Rodgers v. WA Krueger Co. Brookfield, WC case no. 94036726 (LIRC, December 4, 1996). In Rodgers, the commission discussed the "knew or should have known" language at length with respect to disputed treatment expense. However, because the commission concluded that the treatment was rendered by a doctor beyond the third choice after the applicant knew or should have known her condition was the result of occupational disease, it denied the payment of expense for the treatment.

(14)( Back ) The commission and the courts generally consider the "substance" of the narratives in doctor's reports over the possibly inconsistent "form" of the marked boxes on practitioner's report forms. Anderson v. LIRC and Quad Graphics, court of appeals case no. 95-1023-FT, district I unpublished decision (November 7, 1995); Harnischfeger v. LIRC and Daenzeol, court of appeals case no. 95-0212 (August 8, 1995); and Johnson Welding v. LIRC and Skogstad, Eau Claire county circuit court case no. 94CV704 (July 3, 1995).


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