BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


MATTHEW P. FLYNN, Applicant

ALLEN ROOFING & CONSTRUCTION, Employer

THRESHERMEN'S MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 87-048518


The employer/insurer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued on July 14, 1989. The applicant submitted an answer to the petition. At issue are certain items of claimed medical expense, together with a claim for bad faith under section 102.18 (1)(bp), Stats.

The Commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the Findings and Interlocutory Order of the Administrative Law Judge. The Commission hereby sets aside the Administrative Law Judge's Findings and Interlocutory Order and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained T12 paraplegia in a conceded work injury occurring on September 11, 1987. He is confined to a wheelchair and is permanently totally disabled. Three items of claimed medical expense are at issue: (1) a new van modified to accommodate applicant's handicap; (2) a deck and ramp for exit from the rear of applicant's house; and (3) electrical work performed on the applicant's house to bring it up to municipal code.

The applicant owned a 1983 Chevrolet pickup truck when he was injured. The insurer paid $500 for the installation of hand controls in this truck, but the applicant decided to sell it and purchase a van. He indicated that the truck was not practical, noted that it was difficult to use in hauling groceries, and also noted that several times he slipped and fell back into his wheelchair while attempting to get into the truck. Dr. Sperling testified that the truck was not suited to the applicant, but conceded that the applicant was able to get in and out of it. He also conceded that a motor vehicle is not a medical necessity. The van is much more convenient for the applicant because it has a lift at the rear and which enables him to stay in his wheelchair when entering the vehicle. The applicant also uses the van to transport high school students as part of his involvement with a youth ministry. He is working towards a Master's Degree in Theology.

One of the provisions of section 102.42 (1), Stats., is for medical supplies, but a motor vehicle is not a medical supply. Modifications of a motor vehicle to accommodate a work-related handicap do constitute the provision of medical supplies. Therefore, the applicant is entitled to reimbursement for the cost of the van lift ($3,295), the cost of necessary driver's seat modifications ($1,095), and the cost of a power door opener ($715). The applicant also submitted evidence indicating that hand driving controls for his van cost anywhere from $380 to $1,295, without indicating the actual cost of the controls installed in his van. The interlocutory nature of this order will allow reimbursement of the specific cost of the hand driving controls, as well as reimbursement of the pro rata tax and financing costs attributable to all four van modifications.

The applicant's only exit from his house was via an elevator installed by the insurer. In case of fire, this would not provide a safe exit. Therefore, the applicant had a deck with an exit ramp built at the rear of his house. The cost of this deck together with financing charges was $2,209.36, and is reimbursable to the applicant as a medical supply reasonably required to relieve him from the effects of the work injury.

When the elevator was installed in the applicant's house, certain electrical modifications were required. The insurer paid for these modifications including upgrading the electrical service from 60 amps to 100 amps. This work necessitated an inspection by an inspector from the City of Madison, who determined that certain existing electrical conditions had to be corrected in order to bring the applicant's residence into compliance with municipal code. The cost of these corrections was $718. This work would have been required by the code regardless of the modifications made to the applicant's house to accommodate his handicap. Therefore, it is not reimbursable expense.

The expenses at issue were fairly debatable, and therefore the insurer is not liable for bad faith in accordance with section 102.18 (1)(bp), Stats.

The fee agreement between the applicant and his attorney was that the attorney would receive the lesser of $100 per hour for each hour spent on the case or 20 percent of applicant's recovery. The fee on an hourly basis would be $2,475, which is greater than the fee which will be due on a 20 percent basis. Therefore, applicant's attorney is entitled to 20 percent of the awards for the van lift, driver's seat modifications, hand controls, power door opener and deck/exit. The attorney fee for all except the expense of the hand controls and pro rata expense of taxes and finance charges is $1,462.87. Applicant's attorney is also entitled to $48 for reimbursement of costs.

Jurisdiction will be reserved for such further findings and orders as may be necessary.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within thirty days from this date, the employer or its insurer shall pay to the applicant the sum of Five thousand eight hundred three dollars and forty nine cents ($5,803.49); and to applicant's attorney, Margaret Stafford, the sum of One thousand five hundred ten dollars and eighty seven cents ($1,510.87).

The employer or its insurer shall also make payment to the applicant for the expense of his van hand controls, together with the pro rata expense of taxes and finance charges for the four van modifications awarded to him. This payment shall be made within thirty days from the date the applicant submits an itemization of these expenses to the insurer. In case of a dispute over the amounts of these expenses, jurisdiction is reserved for further adjudication by the Department. From these expenses, a 20 percent attorney's fee will be subtracted and paid to Attorney Stafford.

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed June 13, 1990
ND 5.46

Kevin T. Potter, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

cc:
Attorney Margaret Stafford
Stafford & Neal, S.C.

Attorney Joseph Danas, Jr.
Borgelt, Powell, Peterson & Frauen, S.C.


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