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


DAVID LUDWIG, Applicant

CHRYSLER CORP, Employer

CHRYSLER CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95026960


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first four paragraphs of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.

The fifth and sixth paragraphs of the ALJ's Findings of Fact are deleted and the following substituted therefor:

"The applicant incurred the following reasonable expenses for reasonable and necessary treatment to cure and relieve the effects of the work injury: from Kenosha Hospital and Medical Center, $617, of which $548 has been paid by the insurer and $103 remains unpaid; from MCW Physicians and Clinics, $573, of which Blue Cross/Blue Shield paid $106, the insurer paid $458, and $8.60 remains outstanding; and from Froedtert Memorial Lutheran Hospital, $53, which the applicant paid himself.

"The applicant also incurred $36,225.12 in expense from Sports Physical Therapy Center, which the commission concludes was incurred to care and relieve the effects of the work injury. The insurer has paid a large portion of the Physical Therapy Center bill, and now seeks an order finding that it has overpaid $21,718.72 asserting, among other things, that the treatment was excessive. The respondent, however, has agreed to waive any rights it may have to collect such overpayment from the applicant.

"The respondent asserts, without contradiction, that it sought to invoke the dispute resolution process under Wis. Stat. 102.16 (2m), but was told by the department that that procedure was not available because there was a claim for reimbursement. Because the claim for reimbursement against the applicant has been waived and because the Wis. Stat. 102.16 (2m) procedure provides a better vehicle for the insurer and Sports Physical Therapy Center to resolve the dispute, this case is remanded to the department for resolution of the necessity of treatment issue with respect to the Sports Physical Therapy Center bill under Wis. Stat. 102.16 (2m).

"Finally, the applicant has not yet submitted an expert medical opinion assessing permanent disability, but contended that he was still temporarily disabled to February 3, 1997, three months before the date of hearing. This order is left interlocutory to permit the applicant to pursue a claim for permanent disability, and to permit further hearing and orders on that issue."

The ALJ's introductory clause to the ALJ's Order "NOW, THEREFORE, this final" is deleted and "NOW, THEREFORE, this" is substituted therefor.

The ALJ's Order is deleted and the second, third and fourth paragraphs of the commission's Interlocutory Order set out below are substituted therefor.

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

INTERLOCUTORY ORDER

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

Within 30 days from the date of this Interlocutory Order, the respondent Chrysler Corporation shall pay all of the following:

(1) To Attorney Richard Fortune, the sum of Twenty-nine dollars and forty cents ($29.40) as fees and Seventy- one dollars and fifty-six cents ($71.56) in costs.

(2) To the applicant, David Ludwig, Forty-six dollars and four cents ($46.04) as disability compensation.

(3) To the applicant, Fifty-three dollars ($53) for reimbursement of out-of-pocket medical expense.

(4) To Kenosha Hospital and Medical Center, One hundred three dollars ($103) for medical treatment expense.

(5) To MCW Physicians & Clinics, Eight dollars and sixty cents ($8.60).

The bill for treatment by Sports Physical Therapy Center is remanded to the department for resolution using the dispute resolution process under Wis. Stat. 102.16 (2m).

Jurisdiction is reserved for such further findings, orders and awards as may be warranted consistent with this decision.

Dated and mailed: December 11, 1997
ludwigd.wrr : 101 : 7 ND 5.47  8.33

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ awarded about three weeks of additional temporary disability, beyond that already paid, for the period from January 11 to February 3, 1997. He denied another period of additional temporary disability sought in 1996, but held that the employer's previous payments of temporary disability were not in error.

The ALJ also issued a final order. He noted a minimal two percent permanent partial disability at the shoulder which had already been conceded and paid per the report of an independent medical examiner, but no ratings for permanent disability at the hip or back. The ALJ also paid certain medical expenses.

Both sides appeal. The applicant contends the ALJ's order should not have been final, because the applicant never put on any evidence about permanent disability. The employer and insurer (collectively, the respondent) assert the ALJ properly issued a final order. However, it wants the ALJ's decision to be modified to find that only one April 1995 work injury occurred and that respondent owed no additional temporary disability and in fact overpaid temporary disability. The employer also wants a finding that it overpaid $21,505 in medical expenses to the provider of the applicant's physical therapy.

The medical records in Exhibit C and the applicant's credible testimony supports a finding that the applicant suffered a compensable injury and a series of work-related aggravations or injuries as found by the ALJ. On the other hand, the reports of IME Dr. Klein support the contrary conclusion that these were instances of symptom manifestation from a pre-existing condition that had caused problems in the past. The respondent contends the applicant was magnifying his symptoms to obtain benefits to which he was not entitled.

Of course, even the employer's IME, Dr. Klein, acknowledges that the applicant has an underlying degenerative disease that accounts for his symptoms. While the doctor concludes that there is some degree of somatization that caused the applicant to believe he is more disabled than the doctor's objective findings would indicate, this does not mean he has no disability and is not prone to reinjury or aggravation of his back condition.

Further, while the respondent contends that two other doctors opined the applicant was magnifying his symptoms, only Dr. Daley actually stated such a concern expressly. Even he stated only that the applicant's lack of improvement after an injection "raise[d] in [his] mind some suspicion" of symptom magnification. In short, the commission concludes the ALJ appropriately awarded temporary disability for the periods set out in his order.

The next issue is the disputed medical expense for physical therapy. Each period of physical therapy was prescribed by a doctor. Two of the doctors who prescribed the physical therapy, Drs. Daley and Ziehen, specifically verified that the physical therapy they prescribed was necessary, and Dr. Daley stated it was reasonably priced. Exhibit A, letter dated March 31, 1997; Exhibit F, letter dated April 4, 1997.

Normally, as long as the treatment was rendered in good faith on a doctor's prescription, it is compensable even if some other doctor later opines it was unnecessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). However, the respondent suggests that language in Wis. Stat. 102.16 (2m), the statute authorizing the new dispute resolution procedure for necessity of treatment disputes, effectively overrules Spencer. However, the most reasonable reading of Wis. Stat. 102.16 (2m)(a) is self-contained; that the authority granted to it applies only when it follows the dispute resolution procedure set out therein. That procedure, of course, requires that the appointment of a medical expert on the question of whether treatment was necessary or excessive, and that the health service provider be given input.

The respondent contends it started the dispute resolution procedure with respect to the physical therapy bill, but was encouraged by the department to withdraw the dispute and litigate it at the hearing before ALJ Krueger. The commission does not doubt this is the case. However, it nonetheless believes the dispute involving the physical therapy bill should be resolved under the procedure set out in Wis. Stat. 102.16 (2m). (1)

A remand would allow for appointment of the tie-breaker (or expert) doctor, give the provider a chance to respond, and clearly immunize the applicant for the treatment expense. A remand would also follow the procedure apparent in Wis. Admin. Code 80.72 (4)(e) and 80.73 (7)(f) which state that if there is a dispute between the applicant and insurer about causation or extent of disability, DWD may delay resolving the reasonableness of fee or necessity of treatment dispute until a hearing is held or an order issued. (2) And of course, a remand gives the respondent a chance at proving its case on the necessity of treatment and overbilling.

The last issue is whether ALJ Krueger should have issued a final order. He did so because the only rating for any permanent disability came from IME Klein, and this was a minimal amount. However, the applicant contends he did not intend to litigate permanent disability at the hearing because he had only recently ended healing and did not yet have a permanency rating. Indeed, the end of healing (February 3, 1997) occurred only a couple of weeks before the hearing notice was sent on February 16.

In his practitioner's report, the applicant's medical expert, Dr. Ziehen, stated another practitioner should provide an estimate of permanent disability. Dr. Ziehen did not opine that the applicant had permanent disability beyond the conceded amount. Exhibit B. The application for hearing listed a claim for permanent disability "when assessed." The preliminary recitals to the ALJ's decision mention only claims for temporary disability. Under these circumstances, the commission concludes the applicant has not yet litigated the permanent disability. Rendering a final decision pre-empting the applicant's ability to seek permanent disability runs contrary to the recently reported court of appeals decision involving similar facts in Wright v. LIRC, 210 Wis. 2d 290 (Ct. App., 1997).

In Wright, the applicant had specifically requested that permanent disability not be litigated, and put on no evidence of permanent disability. The ALJ issued an interlocutory order reserving jurisdiction on permanent disability. The commission reversed, found an end of healing, and issued a final order denying permanent disability based on IME reports. The commission explained that "primary compensation" was listed as an issue at hearing and that the issue at the hearing was nature and extent of disability, effectively putting permanent disability at issue. The court of appeals reversed, finding a denial of due process, and ordered the matter sent back for a hearing on permanent disability.

The respondent seeks to distinguish Wright in four ways. First, the respondent contends that the applicant clearly put permanent at issue in this case by stating he wanted "PPD when assessed" in his application. The court of appeals recitation of the facts suggests that permanent disability was not listed as an issue on the application in Wright. However, use of the phrase "PPD when assessed," if anything, makes clearer than omitting any reference to permanent disability that the applicant did not intend to litigate permanent disability until he got an expert opinion assessing it.

Second, the respondent points out that the attorney in Wright stated on the record that the only issue was temporary disability. Of course, the recitation of the issues in this case establishes that the applicant was only seeking temporary disability at the hearing, and that the employer wanted findings only that the April 19, 1995 injury occurred. The appellant did not ask for a final order on permanent disability as far as the commission can tell.

Third, the respondent points out that according to a footnote in the Wright decision, the IME reports in that case contained only isolated references to permanent disability. Nonetheless those reports established that the IMEs thought Wright had no permanent disability from his work injury. Wright, at 210 Wis. 2d 296 fn. 3. Isolated or not, the commission cannot conclude that such reports are materially different from IME Klein's in this case. The fact remains that the court of appeals has disavowed the practice of deciding permanent disability on only the respondent's evidence, when an applicant has indicated an intent to present evidence at a later date.

Fourth, the respondent points out that the court of appeals mentioned that ALJ in Wright issued an interlocutory order, "establish[ing] beyond peradventure that the question [of PPD] had not been fully litigated in any sense of the term when the case came before the commission." Wright, at 210 Wis. 2d 297, 299. Since the ALJ in the present case did issue a final order, the respondent contends, he found the permanency issue was litigated.

The commission acknowledges this point has some force. However, LIRC is not bound by an ALJ's findings of fact or conclusions of law, but issues its own based on a de novo review of the record. (3)     Moreover, the very issue at question here is whether an interlocutory or final order should be issued, whether by LIRC or an ALJ. The commission is not certain that the court of appeals meant to resolve this issue on the tautological argument that a final order should have been issued because a final order was issued.

cc:
ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY THOMAS M ROHE
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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Footnotes:

(1)( Back ) Judianne Hull v. Copps Corporation, WC claim no. 91039585 (LIRC, February 28, 1995), affirmed on this issue sub nom. Copps Corporation v. LIRC, case no. 95CV93 (Wis. Cir. Ct. Portage County, October 3, 1995); Mary Sommerfeldt v. Ace Hardware, WC claim nos. 93039786, 92053398 and 90035314 (LIRC, December 13, 1995), appeal dismissed sub nom. Ace Hardware, et al. v. Mary Sommerfeldt, case no. 96CV8 (Wis. Cir. Ct. Fond du Lac County September 6, 1996); Robert Nitschke v. Parkway Garage, WC claim no. 95005279 (LIRC, November 7, 1996).

(2)( Back ) The department construes these sections of the code to mean that the reasonableness or necessity dispute between the insurer and the health service provider may be resolved after hearing in the order resolving the dispute between the insurer and applicant, without going through the procedures in Wis. Stat. 102.16 (2) or (2m) including the use of an "expert" doctor (for necessity of treatment) or statistical data base (for reasonableness of fee). It also results in a decision without input from the health care provider.

(3)( Back ) Of course, an applicant might indicate at hearing off the record that he has no claim for permanent disability beyond what was conceded, so the ALJ would be aware of information not before the commission. However, that did not happen in this case.