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


GARY WIDIKER, Applicant

HOFFMAN CONSTRUCTION CO, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1993061724



A hearing was held in his case before an administrative law judge for the Worker's Compensation Division of the Department of Workforce Development on November 3, 1998. Prior to the hearing, the employer and insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage resulting in the maximum statutory compensation, an October 27, 1993 compensable injury. The respondent conceded and paid certain amounts of compensation documented by a Supplementary Report on form WC-13 filed at the time of the hearing.

The issues before the administrative law judge were the applicant's entitlement to permanent partial disability on a functional basis at 7.5 percent compared to permanent total disability, the respondent's liability for certain claimed medical expenses, and the applicant's entitlement to an interlocutory order. The administrative law judge closed the record on July 16, 1999, and issued his findings of fact and interlocutory order in this case on July 23, 1999.

The respondent has submitted a timely petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs. Before the commission, the respondent challenges only the administrative law judge's findings on the disputed medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby modifies his Findings of Fact and Conclusions of Law as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The first seven paragraphs of the administrative law judge's Findings of Fact and Conclusions of Law are affirmed, and reiterated as if set forth herein.

2. The eighth paragraph of the administrative law judge's Findings of Fact and Conclusions of Law is deleted and the following substituted therefor:

"In this case, the applicant seeks payment of $6,000.00 for acupressure and massage treatment provided by his wife, Beverly Widiker, from June 1996 through October 1998; $5,576.12 in mileage expense incurred by Ms. Widiker in rendering the acupressure and massage treatment; $396.00 for treatment rendered by Smith Family Chiropractic; $7,068.49 for a whirlpool spa installed by the Pool People; $718.80 for an Earth Lite massage table; and $484.00 for a cushion manufactured by Body Support Systems.

"Compensation for medical treatment generally is dealt with under Wis. Stat. 102.42(1) which provides in relevant part:

`102.42 Incidental compensation. (1) TREATMENT OF EMPLOYE. The employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employe, if the employer has not filed notice as provided in sub. (4), Christian Science treatment in lieu of medical treatment, medicines and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury,.. The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employe or to maintain the existing status of such condition whether or not healing is completed.'

"Because an employer is only liable for those expense that may be `reasonably required,' it is noted that Wis. Stat. 102.17(1)(d) provides in relevant part:

`102.17(1)(d) The contents of certified medical and surgical reports by physicians, podiatrists, surgeons, dentists, psychologists and chiropractors licensed in and practicing in this state . presented by a party for compensation constitute prima facie evidence as to the matter contained in them, subject to any rules and limitations the department prescribes.. Certified reports of physicians, podiatrists, surgeons, psychologists and chiropractors are admissible as evidence of the diagnosis, necessity of the treatment and cause and extent of the disability. Certified reports by doctors of dentistry are admissible as evidence of the diagnosis and necessity for treatment but not of disability.. The record . of a physician, podiatrist, surgeon, dentist, psychologist or chiropractor [established by certificate, affidavit or testimony] to be the record of the patient in question, and made in the regular course of examination or treatment of such patient, constitutes prima facie evidence in any worker's compensation proceeding as to the matter contained in it, to the extent that it is otherwise competent and relevant.'

"Finally, because the injury in this case occurred before January 1, 1998, (1) it is noted that on the issue of compensability of medical treatment expense, the supreme court has adopted the reasoning that:

`as matter of law ... where an employe [Spencer], in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of that treatment (increased period of temporary total disability, increased permanent partial disability, and the expense of the arthrodesis) because it finds the treatment was either unnecessary or unreasonable....

`As we see it, the conflict here is ... whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming the [doctor who recommended against the arthrodesis] was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting the arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. [Citation omitted.]'

Spencer v. ILHR Department, 55 Wis. 2d 525, 532 (1972). See also Oldham v. LIRC, case no. 92-2145 (Wis. Ct. App., December 2, 1993).

"Read together, Wis. Stat. 102.17 and 102.42(1) to permit the reimbursement of treatment expense, but only if a physician, chiropractor, or practitioner specified in Wis. Stat. 102.17(1)(d) somehow indicates the treatment is necessary. This is done ordinarily by the physician providing the service himself (the department or the commission may reasonably infer a physician would not provide treatment he believes is not necessary) or by prescribing or recommending the applicant obtain the treatment from another provider.

"For example, physical therapy, when prescribed or recommended by a physician, is a compensable medical expense, even though the physical therapist himself is not a physician or other practitioner competent to render an opinion on necessity of treatment under Wis. Stat. 102.17(1)(d). On the other hand, without a physician's opinion as to necessity, an injured worker may not simply go to a physical therapist, obtain treatment, and expect reimbursement. The physical therapist is not one of the professionals who may opine as to the necessity of treatment under Wis. Stat. 102.17(1)(d), nor is `physical therapy' in and of itself a `treatment' that is independently compensable outside of the realm of medical or chiropractic treatment under Wis. Stat. 102.42(1).

"Similarly, acupressure or massage may be compensable as a medical treatment expense, but only if a practitioner authorized to opine on the necessity of treatment either provides the treatment, prescribes the treatment, or otherwise credibly opines it that the treatment is necessary or reasonably required to treat the work injury. This would be the case even if the acupressure or massage is performed a person who is not a licensed therapist or acupressurist. The law does not require that persons who provide medical treatment on a doctor's prescription or order be licensed, certified, or a diplomate of a program. (2) In other words, it is generally the physician who sets the parameters of appropriate treatment modalities, not the statute.

"Further, as noted above, if an inured worker undergoes treatment in good faith reliance on a treating doctor's opinion, the treatment is compensable even if the department or commission credits the opinion of the insurer's doctor that that treatment was not necessary. Spencer, supra, at 55 Wis. 2d 525, 531-32 (1972). However, Spencer by its terms applies to situations where an injured worker undergoes treatment in good faith reliance on a medical expert's advice, such as where the treatment is prescribed or recommended in advance, or rendered by the medical expert himself or herself. Where the opinion regarding the necessity of treatment comes only after the fact--that is, after the treatment was rendered--the injured worker's decision to treat could not be based on good faith reliance upon advice from a medical expert. In such cases, the department or the commission is free to do a straight credibility analysis between (a) the physician opining that some treatment (physical therapy, massage, etc.) which an injured worker obtains on his own was in fact reasonably required or necessary versus (b) the physician (presumably an independent medical examiner) opining it was not.

"The first question in this case, therefore, is whether the massage or acupressure treatment provided by Ms. Widiker from June 1996 through October 1998 was prescribed or authorized in advance. According to exhibit C, on June 19, 1996, Dr. Cragg noted the applicant's wife had been learning massage techniques in connection with the applicant's injury. On October 11, 1996, the doctor noted the applicant `for now . will continue in the construction industry with use of massage therapy and stretching.' On December 11, 1996, the doctor noted the applicant's injury did not present a surgical problem and that `he needs to treat it with stretching, massage techniques, isometrics, intermittent nonsteroidals. [Emphasis supplied.]' On March 26, 1997, Dr. Cragg specifically recommended `massage' along with medication, traction and occasional muscle relaxant medication.

"The applicant also submitted the May 1997 deposition testimony of Dr. Cragg given with respect to a third party action arising from the same accident. (3) Dr. Cragg stated at page 5 of the deposition that he had recommended massage during the course of his treatment of the applicant, and that the applicant was `holding his own' as a result of the treatment. The doctor later stated that he knew the applicant's wife was a massage therapist, that she provided massage four to six times per week, that she used deep massage and mobilization techniques, but that he did not know the details of the massage other than `that's what keeps him going.' Deposition at page 9. Ms. Widiker herself testified that she discussed her treatments with Dr. Cragg. Transcript, pages 73- 74.

"In addition, the applicant obtained a June 28, 1999 letter from a chiropractor, Rodney Smith, D.C., indicating that the acupressure/massage therapy provided by the applicant's wife worked hand in hand with the chiropractic care he provided in his clinic. Dr. Smith also noted that both treatments (chiropractic and massage/acupressure) provided consistently would improve the applicant's condition.

"Does this prove that Dr. Cragg pre-authorized, recommended or prescribed the acupressure or massage treatment so that its payment is required under Spencer? While Dr. Cragg clearly recommended massage from October 1996 through March 1997, when he did so the applicant was undergoing treatment (variously described as massage therapy, ultrasound therapy, joint mobilization work, or muscle energy work) with certified physical therapists. See exhibit C, notes of Melissa Aul and Jerry Aul. The therapists themselves note showing massage or stretching techniques to the applicant's wife.

"On this record, it must be concluded that, to the extent Dr. Cragg pre-authorized or prescribed massage therapy or similar treatment, his prescription was limited to the treatment provided by Melissa Aul and Jerry Aul. Those individuals were licensed physical therapists who apparently practiced in the same clinic as Dr. Cragg, and whose treatment and treatment notes were subject to oversight and review by the doctor. In direct contrast, Ms. Widiker is not licensed, did not practice acupressure or massage therapy in association with Dr. Cragg's clinic, and neither wrote treatment notes nor kept the doctor informed as to the details of the therapy she provided.

"It is true that the applicant offers a June 28, 1999 letter from Rodney L. Smith, D.C. However, while chiropractor Smith's report indicates that the acupressure and massage treatment was reasonable and necessary, his opinion comes only after the hearing, and well after the treatment was rendered. It is therefore concluded that neither Dr. Cragg nor Dr. Smith prescribed or pre-authorized the treatment provided by Ms. Widiker, and that absent an express referral or prescription the Spencer rule does not apply to the treatment.

"Despite the lack of pre-authorization required to place Ms. Widiker's treatment within the Spencer rule, the record does contain opinions from Drs. Cragg and Smith to the effect that the treatment was reasonably required or necessary to cure and relieve the effects of the work injury. This leaves the question of who offers the more credible expert medical opinions on the question of whether the treatment provided by Ms. Widiker was necessary or reasonably required to cure and relieve the effects of the work injury. As discussed above, if the reports of Drs. Cragg and Smith are credited, the treatment expense may still be compensable.

"Dr. Cragg, as noted above, stated in his deposition that the massage treatment provided by Ms. Widiker kept the applicant going, but admitted he did not know the details. Dr. Smith states more definitely the acupressure and massage treatments, if provided in a consistent manner of frequency and duration, will permanently improve the applicant's condition, and at the very least prevent a further deterioration of his condition.

"Against this, the respondent offers the opinion of the chiropractor it retained, Dale Schulz, D.C., that the treatment provided by the applicant's spouse was palliative only and not necessary. The employer also offers the report of the independent medical examiner it retained, Nicholas Lorenzo, M.D. He opined that past physical therapy was warranted, that future physical therapy was unwarranted, and that "home stretching exercise" should continue to the foreseeable future. Exhibit 1, report of Lorenzo, page 19.

"It is concluded that Drs. Schulz and Lorenzo offer the more credible opinion. There is little evidence that the ongoing massage and acupuncture therapy provided by Ms. Widiker has resulted in any improved functional capacity on a permanent basis: the applicant's work restrictions have apparently remained the same since they were set by Dr. Cragg in 1995. Beyond that, it does not appear that Ms. Widiker kept track of the treatment she provided on an ongoing basis, but simply submitted two summaries listing the dates of treatment over the two-year period at issue. The lack of more detailed billing is particularly troubling since the applicant and his wife cannot reasonably be viewed as dealing with one another at arm's length.

"In conclusion, it cannot be concluded that the massage and acupressure treatment provided by Ms. Widiker were reasonably required or necessary to cure or relieve the effects of the work injury. Therefore, the bills submitted by Ms. Widiker, her mileage, and the expense of the massage table and cushion she used to provide the therapy must all be denied.

"The basis for payment of the $7,000 expense of building a whirlpool spa is a handwritten note from Dr. Cragg, apparently on March 18, 1996, stating simply `Whirlpool for medical muscle relaxation.' Exhibit A, page 2. Payment of the whirlpool spa expense cannot be based on this note. The applicant has the burden of proof on this issue, and Dr. Cragg's note is more reasonably read as recommending whirlpool treatment than requiring construction of a home whirlpool. (4)

"The last item is the expense of treatment by Smith Chiropractic. The respondent asserts the treatment is not necessary (5), based on the report of its independent chiropractic examiner, Dr. Schultz. Of course, Dr. Smith's posthearing letter of June 28, 1999, indicates he provided the treatment to relieve and prevent deterioration of the applicant's condition. Further, the treatment by Dr. Smith is within the Spencer rule; it was provided directly by one of the medical professionals authorized by law to opine on necessity to treat the work injury. Since the applicant underwent the treatment in good faith, it is compensable."

3. The ninth paragraph of the administrative law judge's Findings of Fact and Conclusions of Law is affirmed, and reiterated as if set forth herein.

4. The tenth paragraph of the administrative law judge's Findings of Fact and Conclusions of Law is deleted and the following substituted therefor:

"Because the applicant may have future claims for additional disability and medical expense, this order will remain interlocutory."

5. The administrative law judge's Interlocutory Order is deleted and the second and third 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, are affirmed in part and reversed in part.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Gary Widiker, One thousand eighty-four dollars and twenty-eight cents ($1,084.28) in disability compensation.

2. To the applicant's attorney, Lisa M. Drill, the sum of Two hundred eighty dollars ($280) in legal fees and Thirty-five dollars and seventy- two cents ($35.72) in costs.

Jurisdiction is reserved for further orders as warranted.

Dated and mailed December 29, 1999
widiker.wrr : 101 : 5 ND 5.46

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission conferred with the presiding administrative law judge concerning witness credibility. He explained that the applicant has a serious injury, and credibly testified that the therapy that his wife provided kept him going. The commission in no way doubts that the applicant genuinely believes the massage and acupressure treatment provided by his wife helps him. Nonetheless, after carefully examining the expert medical opinion in this case, the commission is not persuaded that the treatment was in fact reasonably required or necessary to treat the work injury.

cc: ATTORNEY LISA M DRILL
DOAR DRILL & SKOW SC

ATTORNEY JEFFREY J KLEMP
STILP AND COTTON


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Footnotes:

(1)( Back ) Effective with injuries occurring on or after January 1, 1998, the Spencer holding is effectively overruled by statutory changes. See 1997 Wis. Act 38, SECTIONS 33 and 49; Wis. Stat. 102.03(4). Bielarczyk v. Twin Disc, Inc., WC case nos. 1994014654 and 1995045946 (June 30, 1999). In this case, the date of injury was in 1993.

(2)( Back ) Ms. Widiker is a diplomate of acupressure school. The profession of masseuse does not appear to be regulated (and thus subject to "certification") under state law as a medical profession or otherwise. See Wis. Stat. chs. 440 through 480. The practice of acupressure might arguably fit within the definition of acupuncture, see Wis. Stat. 451.01(1)(c); that profession is regulated under Wis. Stat. ch. 451, but it does not appear the applicant's spouse is certified. As explained above, however, the result in this case does not turn on whether Ms. Widiker is certified or licensed.

(3)( Back ) This was offered by the applicant after the hearing at the direction of the ALJ, who kept the record open to permit the submission of expert evidence on the question of the relationship between the acupressure and massage treatment and the work injury. See last two sentences of page 6 of the ALJ's decision. The applicant's post-hearing submission includes both the deposition testimony of Dr. Cragg and a letter from Rodney Smith, D.C., dated June 28, 1999, as well as some articles. The respondent's posthearing submission includes a February 1999 report from Dale G. Schultz, M.D.

(4)( Back ) Had there been a prescription or order from Dr. Cragg to install the whirlpool, the expense may have been compensable, assuming the prescription were unequivocal and obtained in good faith. See Karol Smith v. Webcrafters Inc., WC claim no. 1998012531 (LIRC, May 18, 1999). Home remodeling or van modification have been held compensable in cases involving paraplegic workers. See Meyer v. Milliken Millwork, WC claim no. 93023332 (LIRC, February 27, 1998); Flynn v. Allen Roofing & Construction, WC claim no. 87048518 (LIRC, June 13, 1990).

(5)( Back ) On appeal, the respondent does not assert that treatment by Dr. Smith was beyond the choices allowed under Wis. Stat. 102.42(2), and the commission affirms with modification the ALJ's findings on that point.