PAUL D LABEREE, Applicant
BOWMAN PLUMBING, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed December 18, 2008
labaree . wsd : 101 : 1 ND 5.46, 5.47, 9.2
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The ALJ's findings of fact are not in substantial dispute. The applicant was in a motor vehicle-train accident in 1979 while in the course of employment. The accident caused a traumatic brain injury that has left the applicant a spastic quadriplegic and unable to walk or operate his electric wheelchair. He has a seizure disorder, and minimal use of his right forearm and hand. He suffers from muscle contractions, constipation, and periodic infections including pneumonia and urinary tract infections. He has a speech impediment, but does speak in comprehensible phrases, though he is difficult to understand except by those close to him. He has some long term memory, but very limited short term memory.
Since the accident, the applicant's care has been in institutions, most recently in Dunn County Health Care Center. Because of his mental impairment, a guardian ad litem has been appointed for him under Wis. Stat., ch 54, (formerly Wis. Stat., ch. 880). He also been determined to be a person in need of protective services or protective placement under Wis. Stat. ch. 55.
Persons in need of protective services have the right to placement with "the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, exploitation and neglect." The goal is to allow "the individual the same rights as other citizens, and at the same time protect the individual from financial exploitation, abuse, neglect, and self-neglect." Wisconsin Stat. § 55.001. Court involvement is necessary to order placement in a nursing home for more than 60 days, and is subject to annual review by the guardian and the court thereafter, with the court having the power to modify the person's placement. Wisconsin Stat. §§ 55.055(1), 55.12, 55.18.
In this case, the applicant's guardian ad litem testified that he had been concerned about the applicant's declining condition while in the Dunn County Health Care Center for several years and had raised concerns, but withdrew his objections in deference to the concerns of the applicant's family. Gradually over time, however, the applicant's family became more educated and comfortable with the idea of reintegrating the applicant into the community. The guardian ad litem asked Dunn County for a community integration plan, with the family's support, in the fall of 2005. The plan, basically, was that a duplex be constructed on land owned by the applicant's father, and medical care be provided there, with the applicant living in one half of the duplex and his father the other. The cost of care under the community integration plan is estimated to be $550 per day, or about $200,000 per year.
Following a hearing on April 6, 2006, the Dunn County Circuit Court approved the plan in full by order dated April 19, 2006. In his order, the judge specifically found the care provided at Dunn County Health Care Center was "insufficient to fully develop his mental and physical potentials."
The applicant's guardian ad litem, his social worker, and his nurse case manager (appointed by the guardian ad litem and paid from the trust) support the plan. The nurse case manager testified she had no doubt from her previous experience that his care under the plan would meet his needs. She thought, too, that his condition would be improved mentally and socially at least, albeit in a small amount, if he were moved. January 2008 transcript, page 103.
In his August 24, 2007, treatment note attached to his practitioner's report at exhibit B, the applicant's treating doctor, Steven L. Rosas, states:
This is a 50-year-old male who will be 51 in a few days. He has marked medical problems from his previous head injury. He is prone to develop urinary tract infections and pneumonia and can become gravely ill in a short period of time from these infections, as he did in January of this year.
In terms of him leaving this facility, I think this is reasonable if his multitude of medical needs can be met. He requires complete care with all activities of daily living including dressing, bathing toileting, eating, and transferring to his wheelchair. He requires supervision at all times that he is operating his wheelchair. He does require monitoring of his vital signs including the ability to check his temperature and blood temperature should he develop a serious infection.
I spoke with Paul's father, who is with him today. His tentative plan is to have a duplex built on some property that he owns. He would live in one-half of the duplex and Paul would live in the other half of the duplex with caregivers present on an around the clock basis. Paul's side of the duplex would be built in a manner that could meet all of his needs including wheelchair accessibility into the residence and throughout the residence. I think that an arrangement of this order would adequately address Paul's medical needs.
In terms of Paul's long term prognosis, I do not anticipate any improvement in his status from his present abilities. He has gone though extensive therapy in the past and reached his maximum level of function.
The employer and its insurer (collectively, the respondent) had the applicant examined by Jay Loftsgaarden, M.D., whose report is at exhibit 2. He opined that the applicant had been getting excellent care at Dunn County Healthcare Center, and that there was no medically necessary reason for moving him from the facility. He added:
...I would also be concerned that given the level of care that he needs, that it is going to be difficult, if not impossible, to get the 24/7 care of the type of quality that he is currently receiving. I know from my own experience with other clients who have been trying to receive full time, full duty care that it is often something that is near impossible to achieve. Often, the burden of care falls on the family. I think there is also going to be an issue regarding social isolation other than the one caregiver that might be present. I think any move is also going to be very challenging for Mr. Laberee as he has poor short-term memory and a limited ability to learn new information. Therefore any change is going to be quite stressful and will take a long time for him to acclimate to.
Overall, I have many concerns about any potential move to a residential type facility. I think (1) it is going to be difficult to obtain 24/7 care, particular if the family is not involved in that care. (2) I think he will become socially isolated, where he has at least more opportunities to interact with people in the nursing home than he probably will at his own home. ...
Any move from his current living situation should be looked at very carefully and should keep in mind the above issues that I have raised.
The respondent also obtained expert opinion from Sridhar Vasudevan, M.D., and he regarded the community integration plan as "conceived with a great deal of idealism with the ideal concept that [the applicant] must be placed in the least restrictive residential environment that is consistent with his needs." He regarded the plan as unrealistic and not taking into account the severity of the applicant's injuries or his needs. He suggested that the care provided in the plan was not reasonably medically necessary care that is included to 'cure and relieve the effects of the injury or prevent further deterioration in the condition.'
Dr. Vasudevan agreed with Dr. Loftsgaarden that the applicant received excellent care at Dunn County Health Care Center that was reasonable and necessary. He added that the Dunn County care did itself include some socialization. He indicated that in his experience providing the full time, full duty, round the clock care would be almost impossible on a long term continuous basis. He also raised long-term concern regarding community-based placement if the applicant's 80 year old father were not around.
Dr. Vasudevan in fact suggested that community based care would worsen the applicant's condition. He noted that the applicant needs a CPAP machine at night, that his bowel program is done on the bed and that he requires a condom catheter during the day and a diaper at night and so needs to be changed every two hours to prevent skin breakdown, and that he has frequent urinary tract infections. He added, too, that given the applicant's poor short term memory, he would have significant difficulty in getting acclimatized to a new environment and would regress in function and mental status. Dr. Vasudevan's report also points out the difference in cost, which he lists at $174 per day at Dunn County compared to $549 per day in a community based setting.
2. Issue; ALJ decision.
The primary issue before the ALJ, and now before the commission, is whether the insurer must pay for the additional medical expenses incurred for in-home treatment under the community integration plan. The ALJ denied this claim, noting that while he did not have the authority to decide where the applicant should live, he did have the authority to approve or deny medical expenses based on reasonableness and necessity under the worker's compensation laws. He denied the expenses stating the applicant provided insufficient medical evidence to support a finding that the "applicant's placement as established by the community integration plan will be reasonable and necessary, and subsequently its added cost should be paid by the respondent." He noted, too, that the applicant did not provide an itemized list of the prospective expenses. However, concluding that "a valid argument could be made if supported by expert medical testimony," the ALJ dismissed the claim for the expenses associated with the community integration plan without prejudice.
A secondary issue before the ALJ was whether the insurer should be liable for about $31,000 in expenses for services already provided by UW-Stout for assistive technology and rehabilitation engineering over the past ten years. The ALJ denied these expenses, as not supported by any medical opinion, dismissing this claim with prejudice.
The applicant appealed. He does not challenge the denial of the UW Stout expenses. Rather, he argues that the case should be sent back to the department with directions to pay for all expense incurred under the applicant's community integration plan. The applicant asserts that the Dunn County Circuit Court has exclusive jurisdiction over his placement, and that the commission should make its decision based on the facts including that court order. He argues the issue is not whether the move to residence-based care is necessary, but--once that move is made in compliance with the court order--whether the treatment he receives in the residence-based care is reasonable and necessary. By arguing that only the nursing home care is reasonable and necessary, the applicant continues, the respondent is mounting a prohibited collateral attack on the April 2006 Dunn County Circuit Court judgment regarding the applicant's placement.
The respondent answers that the commission lacks jurisdiction to resolve this issue, as the ALJ's "without prejudice" dismissal technically did not award or deny compensation. The respondent relies on Wis. Stat. § 102.18(3), which limits the commission's review to an ALJ's "decision awarding or denying compensation." Even if the commission has jurisdiction, the respondent continues, Wis. Stat. ch. 55 placement issues are separate from the Wis. Stat. § 102.42(1) liability for treatment expense issue, and the ALJ properly concluded the applicant had not proven the residence-based care was reasonable and necessary.
a. LIRC jurisdiction to review.
With regard to its jurisdiction, the commission notes that this is not a case where the application has been dismissed without prejudice based on an applicant's failure to appear for hearing. See, for example, Lawrence v. A-1 Cleaning, WC case no. 95060456 (LIRC, November 19, 1997). In those cases, where no hearing is held and no findings made, a dismissal without prejudice permits a procedural "do-over" without addressing the issue of compensation at all.
This is a different situation. The applicant's claim for medical expense under Wis. Stat. § 102.42(1) was litigated at a hearing and decided pursuant to Wis. Stat. § 102.18(1)(b) and (bg). The ALJ refused to award the medical expense, dismissing--rather than postponing decision on--the claim. Further, the ALJ decision without question denies compensation for the UW-Stout expenses which were dismissed with prejudice. In short, the commission is satisfied that it has jurisdiction to review the ALJ's decision.
b. Is the respondent liable for the additional costs of the in home care?
With respect to the claim for the additional medical expenses associated with the community integration plan, the commission agrees with the ALJ that the record does not establish that the significantly more expensive home-based care is reasonable and necessary. Dr. Loftsgaarden raises the legitimate concern that, under the community integration plan it would be "difficult, if not impossible, to get the 24/7 care of the type of quality that he is currently receiving," especially given the very real concern about when the applicant's 80-year old father no longer lives in the other half of the duplex. Dr. Loftsgaarden's report, like Dr. Vasudevan's, also raises concerns about negative psychological effects to the applicant caused by moving to a new environment. Dr. Rosas's report does not dispel those concerns.
In his brief, the applicant cites cases from other states where home-based care has been paid. At least one case, Williamson, involves a worker with a severe brain injury. Another involved in-home care after a catastrophic injury, where the worker's compensation insurer actually encouraged the injured worker to "purchase a new house so that he could be cared for at home." See Brown v. Eller Outdoor Advertising Co., 111 Mich. App. 538, 540 (1981). Some of the cases pose the interesting issue of a spouse's entitlement to compensation for nursing care provided by him or her to the injured worker, others involve the issue of whether 24-hour care is needed. As far as the commission can tell, none involve a dispute between an injured worker and an insurer about whether a worker should be cared for at home instead of in a nursing home. Nor do any involve the question of whether an injured worker's statutory right to the least restrictive care possible makes the worker's compensation insurer liable for the added expense of in-home care as a matter of law.
Of course, Wisconsin worker's compensation law recognizes that expenses may be paid for in-home health care. See Mednicoff v. DIHLR, 54 Wis. 2d 7, 20-21. See also Flynn v. Allen Roofing & Construction, WC case no. 87048518 (LIRC, June 13, 1990), Kapelke v. North Meadows Home Association, WC claim no. 1985004514 (LIRC, July 25, 2001); and Meyer v. Milliken Millwork, WC claim no. 93023332 (February 27, 1998). But the compensability of home-based care, per se, is not the issue here. What is at issue is whether in-home care in this case is reasonable and necessary. Dr. Loftsgaarden and Dr. Vasudevan opine that the community integration plan does not reflect reasonable and necessary medical treatment expense. Dr. Rosas's opinion, to the commission's reading, expresses his acquiescence with the community integration plan, but fails to refute the opinions of Dr. Loftsgaarden and Vasudevan. A without prejudice dismissal of that claim is the most reasonable result on this record.
The applicant argues that the issue of the reasonableness and necessity of the applicant's medical treatment under Wis. Stat. § 102.42(1) must be subordinated to the applicant's statutory right under Wis. Stat. ch. 55, to the least restrictive care possible. However, the commission cannot agree. Here, the decision by the responsible tribunal (the Dunn County Circuit Court), properly exercising its jurisdiction because the applicant requires a guardian and protective services, decided that the least restrictive alternative is home-based care. However, if Wis. Stat., chs. 54 and 55 were not implicated in the applicant's care, and a worker who did not need a guardian or protective services made the personal choice to live with his father instead of at a nursing home, there would be little argument the insurer could raise and litigate the issue of reasonableness and necessity of the additional expense.
In this case, the Dunn County Circuit Court must make that personal choice for the applicant, subject to the statutory protection that accords the applicant the least restrictive choice possible. The court was not deciding whether care provided is reasonable and necessary to cure and relieve the effects of the work injury under Wis. Stat. § 102.42. Further, it does not appear the insurer had notice of any hearing concerning the community integration plan,(1) and did not appear at the hearing(2) to present its side of that issue into the record. See transcript, October 2007 transcript, page 37-38. In short, the commission is not persuaded that the Dunn County Circuit Court's order forecloses consideration of reasonableness and necessity for worker's compensation purposes under Wis. Stat. § 102.42(1).
Attorney Matthew A. Biegert
Attorney Peter Topczewski
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(1)( Back ) A worker's compensation insurer may be notified an initial placement, at least, under Wis. Stat. 55.09(2)(f).
(2)( Back ) The fact the respondent was not present at the hearing leading to the adoption of the community integration plan suggests that the respondent is not precluded from litigating the issue of the reasonableness and necessity of care under Wis. Stat. 102.18(1)(b) and (bg) and 102.42(1). The court of appeals has stated that the general rule on issue preclusion is when "an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." [Emphasis added.]" Precision Erecting, Inc. v. M & I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301 (Ct. App. 1998) (citing the Restatement Second, Judgments 27). See also Teriaca v. Milwaukee Employee's Retirement System, 2003 WI App 145, 12, 13, 265 Wis. 2d 829. The court of appeals has also observed that any application of the issue preclusion doctrine must comport with principles of fundamental fairness. The court noted that the Supreme Court has adopted a five-factor fundamental fairness test, involving consideration of, among other factors, whether the party, against whom preclusion is sought, as a matter of law, could have obtained review of the judgment. Precision Electric, 224 Wis. 2d at 304-05, Teriaca, 2003 WI App 145. 13.
The court of appeals has, of course, held that the preclusive doctrine of collateral estoppel does not require an identity of parties if it is raised defensively a party from relitigating an issue or issues conclusively resolved against it. ManuTronic v. Effective Management Syst, 163 Wis. 2d 304, 316 (Ct. App. 1991). Here, however, the applicant is not using a judgment defensively to prevent the respondent from relitigating an issue already decided against it--again, the respondent was not a party to the Dunn County Circuit Court order and the order was not issued against the respondent.