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


MICHAEL J SANTSPREE, Applicant

JONES INTERCABLE, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91057737


The administrative law judge issued his Findings of Fact and Amended Order on review in this case on December 2, 1994 (the Amended Order). The amended order followed the issuance of Findings and Interlocutory Order on June 3, 1994, after a hearing on April 20, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's amended order. Neither the respondent nor the applicant (who is unrepresented) filed, or requested permission to file, briefs on the petition. The only issue decided by the amended order was whether the employer was liable for the expenses of treatment rendered by Loyal S. Peterson, D.C. The commission has carefully reviewed the entire record in this case, and hereby sets aside the administrative law judge's Findings of Fact and Amended Order dated December 2, 1994 and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant suffered a work injury on December 12, 1990, when he slid twenty feet down a telephone pole while working for the employer, a cable television company. According to the report of the respondent's independent medical examiner (Exhibit 1, report dated November 23, 1992), the applicant went to St. Vincent Hospital emergency room the next day. He was treated and released with medication.

When he continued to have pain, the applicant returned to the emergency room and was referred to a Dr. Anderson. Dr. Anderson, in turn, referred the applicant to Drs. Erickson and Sommerville for tests during the course of treatment. This treatment lasted into the fall of 1991. None of this treatment is at issue in this proceeding.

The applicant then began treating with Dr. Darnell, a chiropractor located in Green Bay, without a referral. Thereafter, the applicant moved his residence from Green Bay to Oconto and began treating with an Oconto chiropractor, Loyal S. Peterson, D.O. The applicant did not have a referral to Dr. Peterson. Nor did the insurer or the employer approve the applicant's choice of Dr. Peterson as treating chiropractor. At least, the respondent asserts it did not approve in its petition, and the record does not indicate otherwise.

The issue here is whether the respondent must pay for the treatment rendered by Dr. Peterson. The relevant portion of the worker's compensation statutes provides:

"102.42 (2)(a) The employer shall supply such medical, surgical, chiropractic ... and hospital treatment ... as may be reasonably required to cure and relieve from the effects of the injury and [if the employer does not supply the treatment directly] the employer shall be liable for the reasonable expense incurred by or on behalf of the employe in providing such treatment. ... The employe has the right to a 2nd choice of attending practitioner on notice to the employer and its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner."

St. Vincent Hospital and Drs. Anderson, Erickson and Sommerville were the "first choice" of practitioner, either directly or by referral. However, since there was no referral to Dr. Darnell, he was the "second choice." Likewise, because there was no referral to Dr. Peterson, he is the "third choice." Further, because the employer and the insurer did not consent to treatment by Dr. Peterson, payment of his treatment expenses are not covered under sec. 102.42 (2), Stats.

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

ORDER

The administrative law judge's Findings of Fact and Amended Order dated December 2, 1994 is reversed. The applicant's claim for reimbursement of expenses for treatment by Loyal S. Peterson, D.O. is dismissed.

Dated and mailed April 20, 1995
5.48

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission's reversal in this case does not depend on a different impression witness credibility and demeanor than that reached by the administrative law judge. Rather, the commission reversed based on a different legal conclusion based on the undisputed testimony of the parties at the hearing. Consequently, a credibility conference was unnecessary. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

Although the applicant did not submit a brief on the respondent's petition, the commission considered two arguments for paying Dr. Peterson, despite sec. 102.42 (2), Stats.

First, one could argue that the applicant's move from Green Bay to Oconto obviates the need for mutual consent. The amended decision of the administrative law judge suggests he awarded expenses on that basis. However, the fact remains that the applicant could either have asked for a referral from his Green Bay medical doctors or chiropractor, or asked for approval from the insurer. Presumably, the insurer would have had an incentive to consent because then it would not have had to pay travel expenses. Moreover, Green Bay and Oconto are only about 35 miles apart. In short, if there is a case for waiving the approval requirement for "third choices" because the applicant has relocated his residence, it is not this one.

Second, the commission cannot tell for certain from the synopsis whether the respondent raised the "choice of practitioner" argument at the hearing. However, the commission assumes the issue was raised, since the applicant was asked about referrals. Moreover, the employe, who was unrepresented, did not bring in Dr. Peterson's bills at the original hearing which decided permanent disability. Under these circumstances, the commission is reluctant to determine that the respondent waived the "choice of practitioner" defense.

cc: ATTORNEY KEITH W KOSTECKE
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD


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