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November 2017 Worker’s Compensation Law Update

Each month, Aplin & Ringsmuth attorneys will be providing this update which provides a glance at recent court opinions and administrative decisions. We will highlight trends in the law and identify issues that players in Wisconsin’s worker’s compensation system should be considering. Every case is unique, and these updates may not apply to a situation that you are dealing with. If you have questions about a matter you are handling, or if you want legal advice, you should consult with your attorney.

Wisconsin Court of Appeals

The only worker’s compensation court of appeals case in November was American Family Mutual Insurance Company and Preferred Metal Products v. Robert Haas and Labor Industry Review Commission, which involved a dispute over the medical opinion of an expert who had surrendered his license after he was accused of fraud. The Respondents had objected to the admissibility of the opinion, which was prepared by one Dr. Cully White. Dr. White had been indicted on federal fraud charges and he has been accused of a variety of wrongdoings including accepting illegal kickbacks, conducting surgery on the wrong side of a patient’s spine, and installing counterfeit materials inside of his patients. Dr. White practiced medicine in the Milwaukee area, and the various legal consequences of his actions have been highly publicized, see: http://archive.jsonline.com/news/crime/surgeon-cully-white-sentenced-to-prison-in-health-care-fraud-case-b99254598z1-256384121.html.

Dr. White had signed a WKC-16-B report in support of the employee’s worker’s compensation case before he gave up his license to practice medicine. By the time the employee’s case reached an administrative hearing, Dr. White was no longer licensed, but the Administrative Law Judge (ALJ) decided to admit the report anyway. The Labor Industry Review Commission, a Wisconsin Circuit Court Judge, and now the Court of Appeals all agreed with that decision of the ALJ. Although probably a unique situation due to the nature of Dr. White’s conduct, the Court of Appeals opinion makes clear that a medical report prepared by a physician properly licensed at the time the report is created is allowed in a worker’s compensation case. The credibility of the opinions in that report are certainly brought into question when the physician who signed it later surrenders his license due to an accusation of fraud, but they are not automatically ruled out.

The case caption is No. 2017AP59, 2017 WL 5179071, at *1 (Wis. Ct. App. Nov. 8, 2017), and you can read the opinion here: https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=200120.

Labor Industry Review Commission

From the Labor Industry Review Commission (LIRC), the agency which reviews the decisions reached by ALJs, there have been several recent decisions which reflect how the Commission will analyze different types of claims. It is important to remember that LIRC decisions are not controlling in the same way that Court of Appeals decisions are. As the Commission is tasked with conducting a fresh review of the record from an administrative hearing, it will often identify issues that ALJs miss. In our review of seven recent claims decided by the Commission, it fully sided with respondents in four of the seven, including one permanent total disability claim. It only upheld the opinion of the ALJ in three of those seven cases. Highlights from those recent decision are summarized below.

  1. Dale E Mesenbrink v. Kenan Advantage Group and Old Republic Insurance Company, 2014-003291, 2017 WL 4785382, at *1 (Wis. Lab. Ind. Rev. Com. Oct. 19, 2017)

This was a permanent total disability claim arising from a traumatic fall experienced by a truck driver. The ALJ hearing the case sided with the employee and the Commission reversed the ALJ. Both the respondents’ expert and the employee’s expert had agreed that the employee was totally disabled, but the respondents’ expert (Dr. Marc Novom) opined that the disability arose from a series of personal health conditions and not the work incident, the Commission agreed.

  1. Barbara A. Coppage Midwest Labor and Society Insurance, 2012-007424, 2017 WL 4585325 (Wis. Lab. Ind. Rev. Com. Oct. 11, 2017)

This ankle claim was also paid by the ALJ and then that decision was reversed by the Commission. The employee was injured in an incident where a vehicle drove over her foot, and the claim was initially conceded and paid. After a treating physician found the employee at an end of healing, she continued to complain of pain. More than two years after the incident she obtained a medical opinion that she had complex regional pain syndrome and had sustained 5% PPD to the ankle. The respondents disputed the additional claim on the basis that she was exaggerating her symptoms, and they pointed to surveillance video of the employee which contradicted her story. The Commission relied on that surveillance video and found that the employee’s additional claims were not credible and should be dismissed.

  1. Randall Adamowicz Old Carco, LLC, 2005-018339, 2017 WL 4785381 (Wis. Lab. Ind. Rev. Com. Oct. 19, 2017)

Of course, not all claims go in the respondent’s favor, and this knee claim is an example of one where an ALJ sided with an expert produced by the respondents and then LIRC reversed. The employee’s claim started with an injury in 2002 which was litigated and the employee won. He later developed more problems with the same knee, and had a total knee replacement in 2015. The ALJ adopted the opinions of Dr. David Bartlett, who opined that the employee only sustained a temporary aggravation of a pre-existing injury in 2002, and on those grounds the ALJ sided with the respondents. The Commission reversed the ALJ because the issue Dr. Bartlett raised was already decided in the earlier litigation. This is a legal concept which is known as issue preclusion, and which is beyond the scope of this update. The important lesson is that issues decided in an earlier, related claim cannot be re-litigated when additional surgeries become necessary.

This claim also dealt with another important legal principal related to an employee’s entitlement to temporary disability benefits in retirement. Temporary disability is meant to cover wage loss during the healing period. When an employee retires for reasons other than a work injury, there is no wage loss, and thus there is no entitlement to temporary disability benefits. It may be difficult to determine the reasons for an employee’s retirement however, and so it is important to investigate the issue thoroughly and consult with an attorney if there is a question about whether an employee is eligible for temporary benefits in retirement. This claim went all the way to the Commission on that issue, which decided that this employee had retired for reasons other than his work injury.

  1. Jose Gallegos v. Ashley Furniture Industries, Inc., and Twin Cities Fire Insurance Company, 2014-031184, 2017 WL 4585327 (Wis. Lab. Ind. Rev. Com. Oct. 11, 2017)

In this claim, the Commission modified an ALJ decision and approved part of the claim while denying another. The employee claimed that he was working with a countertop that slipped, causing him to twist his left wrist. He alleged that he heard a popping sound in the wrist, and then he promptly reported the incident to his supervisor. He also sought medical treatment for the left wrist on the same day. Within a year he had been diagnosed with carpal tunnel syndrome in the left wrist, which his treating physician said was related to the work injury. Around the same time, he began complaining of left shoulder pain. He eventually underwent a left carpal tunnel release and was cleared by his treating physician to return to work with restrictions and 10% permanency to the left wrist. Shortly after he had an MRI of his left shoulder which revealed a rotator cuff tear. He sought benefits for both his left wrist and left shoulder condition, and the Commission credited the employee’s treating surgeon on the wrist claim, but agreed with the respondents on the left shoulder.

Conclusion

Although these cases do not show any major shifts in the law, they reflect the importance of a thorough investigation and the degree to which the Commission will review ALJ decisions. Again, every case is unique. If you have a claim which you think is similar to one discussed in this update and have questions about whether the outcome will be the same, you should consult with your attorney.