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


HERBERT COPUS JR, Applicant

RICHLAND CENTER FOUNDRY, Employer

EMPLOYER INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89051031


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.

ORDER

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

Dated and mailed January 31, 1996
copushe.wsd : 101 : 0  ND 8.33

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

a. Generally.

The applicant suffered a conceded work injury in 1989. Based on the injury, the applicant alleged disability to both his wrists and to his right elbow. The applicant has received considerable treatment for these conditions, including a right carpal tunnel release in 1989, a left carpal tunnel release in 1994, and a right elbow arthroscopy in January 1995.

The respondent paid temporary disability benefits during the periods for which the applicant was convalescing from both carpal tunnel surgeries. The respondent also paid the medical expenses for 1989 right wrist carpal tunnel surgery and some of the expenses for the 1994 left wrist carpal tunnel surgery. It also paid permanent partial disability at 1 percent compared to amputation of the arm at the shoulder totaling $625. (1) This payment was apparently for the right elbow complaint. See the respondent's answer and Exhibit 1, page 7, paragraph 2, and page 8 paragraph 1. However, the respondent has not paid temporary disability benefits or medical treatment expenses for the 1995 surgery to the elbow, on the contention that the surgery is not related to the 1989 work injury.

The issues before ALJ Endter were (1) whether to pay the unpaid medical expenses for the 1994 left wrist carpal tunnel surgery and (2) whether to issue an interlocutory order. Her decision decided both issues in favor of the applicant: First, she ordered the medical expenses paid, finding no logical reason for the respondent to pay some of the expenses of the left wrist carpal tunnel surgery but not others. Second, she left her order interlocutory for additional disability and treatment expenses (apparently with regard to the wrists) and "for other claims not yet perfected with regard to the elbow."

The respondent appeals.

b. Medical expenses.

With respect to the medical expenses for the left wrist carpal tunnel surgery in 1994, the respondent asserts that the ALJ failed to address its objection to the expenses in the applicant's WC-3 itemization (exhibit D) under the 15-day advance submission statute, sec. 108.17 (8), Stats.

Indeed, ALJ Endter's order and synopsis do not mention this objection at all. What the order and the synopsis do mention is the respondent's concession that it was liable for the Lutheran Hospital expenses itemized in the WC-3 for the 1994 left wrist carpal tunnel surgery. Since the applicant also received treatment for the left wrist in 1994 from Gundersen Clinic, the ALJ ordered those paid as well.

The applicant contends in his response brief that while there was some discussion before the hearing about the 15-day rule, no formal objection was ever made, and the WC-3 was received as Exhibit D at the hearing with no objection. The respondent replies it "believe[s] objection was made," but cannot verify it since no transcript was ordered. The respondent goes on to state that, even if it failed to object, the statute automatically barred the WC-3 medical expense itemization in the absence of an objection.

Section 102.17 (8), Stats., provides:

"102.17 (8) Unless otherwise agreed to by all parties, an injured employe shall file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under s. 102.42 claimed by the injured employe. . . . The department may not admit into evidence any information relating to medical expenses and incidental compensation under s. 102.42 claimed by an injured employe if the injured employe failed to file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under s. 102.42 claimed by the injured employe unless the department is satisfied that there is good cause for the failure to file and serve the itemized statement."

As noted above, the respondent conceded liability at the hearing for some of the medical expenses itemized on the WC-3. The respondent's asserted objection to the admissibility of the WC-3 is inconsistent with that concession. The commission shall not exclude the WC-3 on the basis of an objection it is not certain was actually made.

Nor is the commission persuaded that it should automatically exclude the WC-3 on due process grounds in the absence of an objection. Section 102.17 (8), Stats., only applies to hearings noticed on or after January 1, 1994 (2); the 15-day advance notice requirement can hardly be viewed as a long-standing fundamental due process right. In addition, an "untimely" WC-3 is admissible on agreement by the parties, which may be inferred in this case from the lack of a clear objection and the concession of some of the medical expenses listed in the WC-3.

c. Interlocutory order.

The second main issue is the interlocutory order. The respondent requests a final order on all issues and is particularly concerned with the applicant's elbow claim. On this issue the commission notes that it is not deciding whether the applicant is entitled to compensation for the elbow, but whether he should have further hearing to prove he is entitled to additional compensation. Obviously, then, the applicant need not show at this point that his elbow problem is compensable "beyond a legitimate doubt" to get a hearing on that very issue.

Instead, the commission examines the record to determine whether the record supports the factual inference on which the reservation of jurisdiction is based. This was the standard used in Felber v. LIRC, court of appeals no. 92-1325-FT, district I unpublished decision, December 28, 1992, where the court of appeals affirmed the commission's decision not to issue an interlocutory order for further treatment. (3) In addition, one of the department's interpretative footnotes to the Workers Compensation Act states that the department has full discretion to "reserve jurisdiction where the effect of the injury may be uncertain or the medical evidence is considered inadequate." DILHR Workers Compensation Act of Wisconsin with amendments to May 4, 1994, footnote 72.

Assuming, then, that the Felber standard applies, the question is whether it is reasonable to infer from the record that there is a basis for the applicant's elbow claim. The commission concludes there is. The respondent concedes the elbow injury caused compensable permanent disability, as stated above, and Lisney v. LIRC, 171 Wis. 2d 499, 503, reconsideration denied 174 Wis. 2d 680 (1993), supports issuing an interlocutory order on the compensability of future medical expenses. In addition, as the applicant points out, even the independent medical examiner concedes that the current elbow symptoms could be compensable if they coincided with the diagnosis of biceps tendinitis. Dr. Butchta's report of March 22, 1994, Exhibit 1, page 9, first and third paragraphs. Finally, the applicant's testimony of continuing elbow pain since the injury, and Dr. Romeyn's January 20, 1994 treatment note to that effect in exhibit A, support the interlocutory order in this case.

cc: ATTORNEY JEFFREY J KLEMP
STILP COTTON & WELLS

ATTORNEY JOHN P STUBER
SAUER BECKER FLANAGAN & LYNCH LTD


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Footnotes:

(1)( Back ) Amputation at the shoulder is worth 500 weeks, one percent is 5 weeks, at $125 per week the PPD works out to the conceded payment of $625.

(2)( Back ) 1993 Wis. Act 81, SECTION 48 (1).

(3)( Back ) Of course, Felber was decided before Lisney v. LIRC, infra, where the supreme court held that LIRC was required to act on a petition for additional medical expenses, even after a final order had been issued.