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


JACK FALLUCCA, Applicant

PALERMO VILLA INC, Employer

HOME INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88013914


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 fifth through ninth (last) sentences in the eleventh paragraph of the ALJ's Findings of Fact.

2. After the eleventh paragraph of the ALJ's Findings of Fact, as amended, insert:

"Expenses for medical treatment incurred by an injured worker in good faith and rendered by the practitioners within the worker's first and second choice (or by other practitioners on referral from those doctors) are compensable. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972) and sec. 102.42 (1) and (2), Stats. Such treatment is compensable even after the healing plateau is reached, as treatment to relieve the effects of an injury, as well as cure an injury, is compensable. Section 102.42 (1), Stats., and DILHR 1994 Worker's Compensation Act, footnote 111. Expenses for treatment rendered by practitioners beyond the second choice are not compensable. Section 102.42 (2), Stats.

"In this case, the applicant first chose the doctors at the Occupational Medical Clinic. His second choice was D. S. Bruno, M.D., and his associates. Accordingly, referrals by Dr. Bruno are also within this 'second choice.'

"As noted above, Dr. Bruno referred the applicant to Donald Ulrich, M.D. Around the time of the applicant's last visit to Dr. Ulrich in late September 1988, Dr. Ulrich felt the applicant should consider obtaining either more testing locally or an opinion from the Mayo Clinic. However, Dr. Ulrich was not listed as a referring doctor on the Mayo Clinic's 'Master Sheet and General History,' although the applicant requested he be sent a letter. Exhibit Q. Under these facts, Dr. Ulrich cannot be held to have referred the applicant to the Mayo Clinic.

"Dr. Nauss of the Mayo Clinic referred the applicant to Dr. Abrams and the Milwaukee County Medical Complex. As noted above, this led to referrals to Dr. Gould, his associates at Faculty Physicians and Surgeons, and the Curative Rehabilitation Center. Because they are the result of referrals beyond the 'second choice,' the bills of the Curative Rehabilitation Center, Faculty Physicians and Surgeons, and the Milwaukee County Medical Complex shall not be ordered paid, even for services rendered before November 1989. In addition, because the record does not indicate that the treatment by Dr. Primo Tamayo was on referral from Dr. Bruno, that bill shall not be ordered paid either.

"On the other hand, after the applicant returned to D. S. Bruno, he was referred to James Bruno, M.D. As noted above, Dr. Bruno referred the applicant to Dr. Novom for evaluation. Dr. Bruno also referred the applicant to Kuang Kim, M.D., who performed stellate ganglion blocks at St. Michael's Hospital to relieve symptoms from the work injury. See exhibit P. Accordingly these bills shall be paid.

"In summary, the following expenses claimed under exhibit S are allowed: treatment at Radiology Assoc. of Milwaukee in the amount of $320, of which $220 has been paid by the applicant and $100 remains unpaid; treatment at St. Michael's Hospital in the total amount of $1,813, of which $442.60 was paid by the applicant and $1,370.40 was paid by Rural Security; treatment by Dr. Kuang Kim totaling $800, of which $137.40 was paid by the applicant and $662.60 was paid by Rural Security; and $641.00 for examination by Dr. Marc Novom, of which $128.20 was paid by the applicant and $512.80 was paid by Rural Security. The remaining expenses in exhibit S, including the applicant's unsubstantiated mileage expenses, are denied.

"This order is made interlocutory should the applicant avail himself of the suggestion he have neck surgery. "

3. Delete the text of the ALJ's Interlocutory Order and substitute the second and third paragraphs of the Modified Interlocutory Order set out below.

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

MODIFIED INTERLOCUTORY ORDER

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

Within 30 days from the date of this Modified Interlocutory Order, the employer and the insurer shall pay all of the following:

(1) To the applicant, Jack Fallucca, the sum of Seven thousand fifty eight dollars and sixty seven cents ($7,058.67) as additional disability.

(2) To the applicant's attorney, Blaise DiPronio, the sum of One thousand seven hundred eighty four dollars and twenty five cents ($1,784.25) as an attorney fee, and Seventy eight dollars and thirty three cents ($78.33) in costs.

(3) To Radiology Assoc. of Milwaukee, the sum of One hundred dollars ($100) for medical treatment expense.

(4) To Rural Security, the sum of Two thousand five hundred forty five dollars and eighty cents ($2,545.80) as reimbursement for medical treatment expenses paid.

(5) To the applicant, the sum of Seven hundred eight dollars and twenty cents ($708.20) as reimbursement for medical treatment expense paid.

Jurisdiction is reserved for further orders as are consistent with this decision.

Dated and mailed December 6, 1995
ND 5.46   5.48

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the applicant first asserts that the ALJ erred in accepting Dr. Berglund's opinion that the applicant reached a healing plateau on November 20, 1989. To support this assertion, the applicant refers to statements by treating doctors suggesting that the applicant's condition was slowly or slightly worsening. On the other hand, many of the same references describe the applicant's condition as "permanent," "not improving" or "not really improving."

It is true that the doctors also referred to continuing symptoms. However, a healing plateau is not the point when all symptoms or pain from an injury disappears. Rather, an injured worker reaches a healing plateau, and he is no longer entitled to temporary disability benefits, when he reaches the point where "there has occurred all of the improvement that is likely to occur as a result of treatment or convalescence." Larsen v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

Finally, by November 1989, the applicant had had all three surgeries, been to the Mayo Clinic, had been treated at Milwaukee County Medical Complex Pain Clinic, and had had stellate ganglion blocks by injection. As the ALJ noted, treatment after this point was largely cumulative. In short, after considering the record as a whole, the commission is left with legitimate doubt as to whether the applicant continued to experience improvement as a result of treatment and convalescence after November 20, 1989. It therefore affirms the finding of a healing plateau ending temporary disability on that date.

The applicant also asserts that the ALJ erroneously relied on an outdated opinion from Dr. Bruno in fixing permanent partial disability. Given that it was not issued until almost two years after the end of healing as described above, Dr. Bruno's report cannot be considered "outdated." In addition, the commission notes that Dr. Bruno was a treating doctor, not an independent medical examiner hired by the respondent. Finally, the commission questions the credibility of Dr. Gould's rating, 65 percent compared to loss of use of the arm. Despite the applicant's cervical surgery and complaints of neck pain, Dr. Gould did not offer an estimate of unscheduled disability until after the hearing.

The last point in the applicant's petition, compensability of medical expenses, is dealt with in the amendments to the ALJ's Findings of Fact made in the body of this decision. Because these amendments did not depend on witness credibility, but were based largely on documents in the file, the commission did not confer with the ALJ about witness credibility and demeanor.

cc: ATTORNEY RICHARD W WHITE
WHITE & LOWE

ATTORNEY BLAISE DI PRONIO
DI PRONIO LAW OFFICE


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