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

JOE SAZAMA JR, Applicant

COLLINS CONSTRUCTION AND REMODELING, Employer

AMERICAN FAMILY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92068079

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.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. Delete the seventh (last) paragraph of the FINDINGS OF FACT AND CONCLUSIONS OF LAW and substitute:

"The applicant is also claiming medical expenses as set out in applicant's Exhibit C. As noted above, Dr. Zeman credibly opined that the applicant had reached a plateau of healing with respect to his injuries by December 21, 1993, and that only the shoulder injury left any permanent disability. The doctor also credibly opined that treatment prior to February 7, 1994, except for chiropractic management, was necessary. Dr. Zeman also opined that no further treatment would be necessary.

"The supreme court has held that medical expenses incurred in good faith may not be disregarded, even if the department subsequently accepts as credible the opinion of a doctor who opines the expense was unnecessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). On the other hand, an injured worker is allowed only two `free' choices of practitioner; prior approval must be obtained from the insurer or employer for treatment beyond the second choice of practitioner (except that referrals or treatment with partners are considered treatment by the referring doctor.) Section 102.42 (2)(a), Stats. Unapproved treatment expense from practitioner's beyond the second choice is not compensable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 279-80 (1996).

"In this case, the record establishes the applicant sought treatment in good faith. Because the applicant continued to treat at the Marshfield Clinic after the `emergency' on the date of injury, the practitioners at the Marshfield Clinic were the applicant's first choice. When the applicant then began seeing Dr. Passineau on January 25, 1993 without a referral from the Marshfield Clinic, he became the applicant's second choice.

"The applicant next began treating with Dr. DeWeerd at the Rice Clinic on January 29, 1993, evidently without a referral. However, Dr. DeWeerd's initial treatment note indicates that the insurer was not only aware that the applicant was treating with him, but also that a representative of the insurer had provided information to the doctor. In addition, the record indicates the insurer has paid Dr. DeWeerd's bills for treatment expense. It must therefore be concluded that the insurer has approved of treatment with Dr. DeWeerd, even though it was the applicant's `third choice' of practitioner.

"The applicant next began treatment with chiropractor Randall Dragt, D.C. The applicant was not referred to him by the Marshfield Clinic, Dr. Passineau or Dr. DeWeerd. Nor does the record indicate the insurer approved of treatment with Dr. Dragt.

"Finally, the applicant began treating with Dr. Parris at the Marshfield Clinic in January 1996. Because Dr. Parris is a member of the Marshfield Clinic, treatment with her was within the applicant's first choice of practitioner. However, since the file contains no treatment notes from Dr. Parris it cannot be determined whether the applicant saw her about his back or shoulder.

"This is significant because the applicant reached a healing plateau without permanent disability with respect to his back on December 21, 1993. Treatment to the applicant's back thereafter would have been for the underlying degenerative condition, not the work injury from which he had completely recovered, so the Spencer rule does not apply. See City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App., 1982). On the other hand, since the applicant had residual disability in his shoulder, even after the plateau, his continuing medical treatment of that disability must be paid under Spencer.

"Sorting this out, then, the unpaid bill from Marshfield Clinic is compensable only to the extent the applicant's treatment with Dr. Parris in January 1996 was for his shoulder. This applies as well to the expenses of the tests ordered by Dr. Parris in January 1996. Specifically, these are the bills from Sacred Heart-St. Mary's Hospitals and from Drs. Grotenhuis, DeJongh, and Skye, Radiologists, S.C.

"The bills from St. Michael's Hospital and Central Radiologists, s.c., for imaging tests in September 1993 arise from treatment rendered before the applicant reached a healing plateau for his back. These bills were in fact considered necessary by Dr. Zeman as non- chiropractic treatment rendered before the date of his opinion. Moreover, since the tests were ordered by Dr. DeWeerd, the approved third choice of practitioner, the bills must be paid.

"On the other hand, the bill from Dragt Chiropractic need not be paid as treatment with Dr. Dragt was unapproved and beyond the applicant's second choice of practitioner.

"In addition, the applicant incurred charges of $603 from Dr. Passineau, the second choice of practitioner, prior to the healing plateau date of December 21, 1993. All of this was paid by the applicant and must be reimbursed by the respondent. However, remaining $466 for treatment thereafter is compensable only to the extent it may be proven to have been for the applicant's shoulder.

"Medical mileage is reimbursable for the visit to IME Zeman, the visits to Dr. DeWeerd and to the first 18 trips to Dr. Passineau. Medical mileage may be paid for the ten remaining trips to Dr. Passineau only to the extent the applicant treated for his shoulder in those visits. Medical mileage may be paid for the trips to Dr. Parris and St. Mary's Hospital only to the extent those visits were for treatment to the shoulder.

"Summing up then, the applicant incurred reasonable and necessary medical expenses from St. Michael's Hospital in the sum of $896.85, all of which is outstanding, and from Central Wisconsin Radiologists in the sum of $217, all of which is outstanding. The respondent shall immediately pay the full amount of these two bills to the respective provider.

"The respondent also shall immediately pay the applicant $603 as reimbursement for treatment from Dr. Passineau through December 20, 1993. The insurer likewise must pay the medical mileage expense for Dr. Zeman ($15.60), for Dr. DeWeerd ($23.40), and the first 18 trips to Dr. Passineau ($257.40). However, the respondent has no liability for the bills for treatment from Dragt Chiropractic Clinic.

"Further, the parties are directed to attempt to agree which expenses for treatment with Dr. Passineau after December 20, 1993, with Dr. Parris, with Sacred Heart- St. Mary's Hospital, and with Drs. Grotenhuis, et al, Radiologists, s.c., are compensable under this order. An interlocutory order is appropriate to retain jurisdiction to permit another hearing and order on this issue only, should the parties be unable to reach agreement on the medical expenses."

2. The ALJ's Order is deleted and the second and third paragraphs of the INTERLOCUTORY ORDER set out below are substituted therefor.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

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

(1) To the applicant the sum of Six hundred three dollars ($603) as reimbursement of medical expense and the sum of Two hundred ninety-six dollars and forty cents ($296.40) as medical mileage.

(2) To St. Michael's Hospital, the sum of Eight hundred ninety-six dollars and eighty-five cents ($896.85), as medical treatment expense.

(3) To Central Wisconsin Radiologists, s.c., the sum of Two hundred seventeen dollars ($217), as medical treatment expense.

The application is dismissed as it pertains to the payment of compensation for temporary or permanent disability beyond that conceded by the employer and insurer in their answer. However, jurisdiction is retained with respect to certain medical expenses, consistent with this order as modified.

Dated and mailed November 7, 1996
sazamjo.wmd : 101 : 1 ND § 5.50  § 8.9 § 8.17

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The applicant raises essentially four points in his appeal.

a. Request for dismissal without prejudice (postponement.)

First, the applicant contends that the ALJ should have dismissed his application without prejudice, as he requested at the hearing, to allow him to follow through on medical consultation for his shoulder. The ALJ denied this request, noting it was tantamount to a late postponement request.

The ALJ's decision on this issue was well within his discretion under past commission precedent. For example, in a relatively recent case, the commission affirmed an ALJ's decision to dismiss a claim with prejudice when an injured worker sought a postponement request, then a dismissal without prejudice, to get another IME. Janet Cran v. UFE, Inc., WC claim nos. 92029355 and 94001877 (LIRC, August 8, 1995).

In Cran, the commission noted that both postponement requests and dismissals without prejudice are discretionary decisions. The commission also noted that primary focus was on the reasonableness or justification for the postponement, adjournment, or dismissal without prejudice request; while the secondary focus was on the actual prejudice posed to the other side by the delay. In Cran, the commission cited Amour & Company v. LIRC and James Bahr, Eau Claire County Circuit Court case no. 93 CV 710 (April 14, 1994), where the commission denied an insurer's request for postponement to get a vocational report after noting that the insurer had already had ample time to do so.

Given this precedent, the commission agrees with the ALJ's denial of the applicant's de facto postponement request. Had the request been made in January 1996 when the applicant was first examined by Dr. Parris, the commission might have reached a different result. But the postponement request on the date of the hearing two months later was simply too late.

b. Medical expenses.

The applicant also raises two points regarding the payment of medical expenses. The issue of medical expenses was dealt with at length in the material added to the ALJ's decision by amendment.

c. PPD from lumbar spine injury.

The applicant next argues that the ALJ erred in crediting IME Zeman's report over treating doctor DeWeerd's. Dr. DeWeerd, of course, rated more shoulder disability than Dr. Zeman, as well as one percent of unscheduled for the back.

The commission carefully reviewed the medical records offered by the parties. The applicant fell a significant distance on October 14, 1992, and in fact suffered a concussion. He complained of back pain in the region of his scapula to Dr. DeWeerd, and in the region of his thoracic spine to Dr. Passineau, as early as January 1993. Unfortunately the commission does not have notes from the Marshfield Clinic to indicate in whether he complained of pain in his parascapular, thoracic or lumbar areas of his back during his initial post- injury visit there.

However, Dr. DeWeerd's reports may be reasonably read to indicate that the applicant's thoracic and parascapular complaints resolved without permanent disability. He rated permanent disability for pain in the lumbar region, although he first noted pain in the lumbar region in September 1993, almost a year after the work injury. By that time, the applicant had been bending and twisting for several months in his job as a welder. Further, the back pathology that was ultimately diagnosed after the September 1993 MRI is degenerative rather than traumatic in nature.

Of course, the first mention of the lumbar pain in Dr. DeWeerd's note in September 1993 is contrary to the applicant's testimony about continuing low back pain from the date of injury, but none before. However, the commission is satisfied that if the applicant hurt his lumbar spine in the October 1992 fall, it got better shortly thereafter, and that the complaints in September 1993 were not due to the work injury. Consequently, it affirms ALJ Ryan's finding of no permanent disability in the back from the work injury.

d. ALJ bias.

Finally, the applicant alleges that ALJ Ryan's bias against him was evident in his characterization of the injury as "a fortuitous fall." As the respondent points out, the use of the term "fortuitous" in worker's compensation cases usually means "accidental" or "happening by chance," not "fortunate." See example, Kaiser Lumber Company v. Industrial Commission, 181 Wis. 513, 515 (1923), Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (1982), and Neal & Danas, Worker's Compensation Handbook, sec. 3.3 (3d ed., 1990). In any event, the commission has independently reviewed the record, and agrees with his findings, except as modified.

cc: ATTORNEY RUSSELL W WILSON
RUDER WARE & MICHLER SC

ATTORNEY FRANK NIKOLAY
NIKOLAY JENSEN SCOTT GAMOKE & GRUNEWALD SC

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