Comprehensive. Efficient. Successful.

Oja v. M.A.D. Enterprises, decided September 19, 2019.

Facts: A hearing was held before an ALJ. That ALJ left the Department before issuing a decision. A second ALJ issued a decision, but had not participated in the hearing. Respondents alleged the decision was a denial of due process because the ALJ who issued the decision did see or hear any testimony.

Decision: If a hearing is conducted, but the ALJ leaves before issuing a decision, a new hearing must be conducted to afford the deciding ALJ the opportunity to develop an impression as to the credibility of the testimony.

Gordon v. Tradesmen Int’l, Inc., decided September 5, 2019.

Facts: Applicant had a prior slip and fall that resulted in a low back injury. He reached an end of healing. Four years later, he brought a permanent total disability claim citing the low back injury and a subsequent fusion surgery. His doctor completed a WKC-16-B and marked “yes” to all three causation boxes (traumatic injury, precipitation/aggravation/acceleration, and occupational exposure) and provided no explanation for his opinion nor the decision to move forward with surgery.

Decision: LIRC did not credit Applicant’s doctor for this reason and further stated his opinions did not explain how a work injury, that Applicant healed from, resulted in the need for a fusion. Instead, LIRC found Respondent’s IME credible because the surgery was directed at a preexisting condition; and therefore, not work-related. Applicant’s doctor’s failure to explain how a work injury that Applicant healed from resulted in a surgery four years later discredited his opinion. Additionally, checking all boxes on the WKC-16-B without explanation was also viewed negatively.

MIAA Casino Night – January 17, 2020
Milwaukee Marriott Downtown
323 E. Wisconsin Avenue, Milwaukee, WI 43202

Registration: 6:30pm – 7:00pm
Cocktails & Hors d’oeurves: 6:30pm
Gaming & DJ/Dancing: 7:00pm
___________________________________

FREE for claim adjusters and Casino Night event sponsors.
Guests are able to attend for $25.00 ($30 at the door)
Non-Sponsor Vendor Cost: $50.00 per person.

Hotel Room Reservations: https://book.passkey.com/e/49978645
Discounted rate available through January 10th

PLEASE REGISTER/RSVP BY: January 9th, 2020
Email RSVP to: [email protected]

The 2019 WC Advisory bill is still pending in the Senate. There are very few items in the bill.

While neither TTD or PPD rates are impacted by the proposed changes, the max wage (and resulting TTD/PTD rate) did go up slightly, as did the rate for the private vocational counselor. The 2020 max rates are listed below:

2020 Rates:

Max TTD: $1,051.00
Max PPD: $362.00 (no change)
Monthly PPD: $1,568.67 (no change)

Max Death: $315,300.00
Max Disfigurement: $78,825.00
Max Private Vocational: $1,736.00

Our 2020 Rate Card we be mailed out shortly. If you would like to be added to the list, please contact our office.

The mileage rate this year is $.575 (down from last year’s rate of $.58). This is the rate used by the IRS, and is not the WC rate. The WC rate remains $.51.

https://www.irs.gov/newsroom/irs-issues-standard-mileage-rates-for-2020

Vallier v. Labor and Industry Review Commission, Aurora Health Care, Inc., and Sentry Insurance Co., Circuit Court No. 2017CV6073, Appeal No. 2018AP936

Court of Appeals Decision Dated and Filed February 26, 2019. This is an unpublished decision and holds no precedential value.

Background: Vallier worked as a nurse for Aurora St. Luke’s.  She alleged an injury after she struck her a right elbow and shoulder on the corner of the wall as she exited a patient’s room.  She reported the injury the same day, but did not seek treatment until the following day.  Vallier was examined by Dr. Petro on November 11, 2010.  The exam and x-ray were normal.  Despite the normal exam, Vallier continued to treat for numbness and tingling that extended from her right shoulder through her right hand.  Due to the continued complaints, Dr. Petro ordered an EMG, which showed lower cervical radiculopathy.  Following the EMG, Dr. Petro ordered a cervical MRI, which showed a large disc extrusion at the C6-7 level.  Vallier subsequently saw Dr. White, who recommended a C6-7 disc replacement and put Vallier on light duty work restrictions.  Vallier sought a second opinion with Dr. Lloyd; he confirmed Dr. White’s diagnosis. 

Dr. Lyons, a neurosurgeon, did an IME for the respondents.  He also confirmed the diagnosis, but concluded it was not work-related.  Vallier continued to treat with Dr. Lloyd, and ultimately underwent a discectomy and fusion at C6-7.  Dr. Lloyd said Vallier had pre-existing degenerative changes in her neck, but this was precipitated, aggravated, or accelerated beyond its normal progression by the November 19, 2010 incident.  After a worker’s compensation hearing, the ALJ decided Vallier was entitled to compensation for temporary total disability and permanent partial disability.  The ALJ stated Dr. Lloyd’s medical reports credible, stating “it was not until the work incident that she had trouble”.   Aurora petitioned LIRC for a review.  LIRC reviewed Vallier’s medical records and reversed the ALJ determination.  Importantly, LIRC found the credibility of Vallier’s treating physicians was “diminished” and incomplete because Vallier did not inform them that she had seen her primary care provider for right shoulder pain in August 2010, prior to the claimed work incident.  LIRC also found this diminished Vallier’s credibility.  Vallier filed a petition for judicial review and the circuit court affirmed LIRC’s decision.

Vallier appealed again; she argued (1) there was no credible and substantial evidence in the record to support LIRC’s determination, and (2) LIRC exceeded its authority by basing its decision on an erroneous finding of material fact.  The Court of Appeals (CoA) noted LIRC’s decision was based on its evaluation of conflicting medical evidence and incomplete opinions from Vallier’s providers (issues of fact); therefore, they found LIRC’s factual findings to be supported by substantial and credible evidence.  The CoA also noted LIRC’s decision was based on credibility determinations, so Vallier’s challenge regarding an erroneous finding of fact was not material to the determination.  Moreover, LIRC disregarded the medical opinions after August 2010 because they were based on inaccurate or incomplete information.

What does this mean?  When LIRC’s decisions are based on an issue of fact, their findings are conclusive on appeal as long as they are supported by credible and substantial evidence.  Evidence is credible if it excludes speculation and conjecture.  Further, LIRC must deny benefits if a legitimate doubt exists as to the facts necessary to establish a claim.  In worker’s compensation, claimants must prove all facts beyond a legitimate doubt.  If “facts” essential to recovery are based on inaccurate or incomplete information, the claimants do not meet this burden.

What is the practical takeaway?  Medical opinions are only as good as the facts those opinions are based on.  Comprehensive review of medical records is essential because it provides an opportunity to determine whether a claimant’s providers have based their opinions on a complete understanding of the claimant’s medical history.  This case is an excellent example of how important medical history and review of past records is to defending a worker’s compensation claim.  Additionally, this shows how information gathering can be a difference maker in litigated matters.

The 2019 IRS mileage rate has increased to 58 cents per mile. This is different than the Wisconsin work comp mileage rate; that remains at 51 cents per mile.

In its recent decision in Wittmann v. Consolidated Lumber Co., et al, the Wisconsin Court of Appeals determined that the weight and credibility of medical evidence, as applied to worker’s compensation and employment matters, is to be determined by the Labor and Industry Review Commission (LIRC), not by the reviewing courts.  The court expressly adopted LIRC’s determination of factual findings and conclusions of law regarding a disputed healing period and disability benefits determination.

This is a significant decision, given the recent budget proposals advocating the minimization of LIRC regarding worker’s compensation matters.  Additionally, this decision provides clear guidance on the interpretation of compensability of injuries as they relate to salaried employees who do not require work restrictions, as well as on disputed end of healing determinations.

The court based its decision on the on the Brakebush Bros decision (210 Wis. 2d at 630), stating “the weight and credibility of medical evidence are to be determined by LIRC, and not by the reviewing court.”  The Court of Appeals expressly adopted the findings of LIRC, not the Circuit Court citing the above case.  The Court stated LIRC’s findings regarding healing period determinations when supported by substantial evidence in the record, are to be given weight, even when continued treatment is sought for other problems regarding the same body part, although separate from the claimed injury.

Further, it determined that when no work restrictions are imposed and there are no lost wages during the healing period, a claim for disability benefits based outside the healing period is not a sustainable argument.  The mere fact that an employee continues to seek treatment after the healing period ends, is not a sufficient eligibility determination for temporary total disability benefits.