COURT OF APPEALS DECISION DATED AND FILED February 5, 2008 Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 FINE, J. Albert Trostel & Sons Co., and
its worker’s compensation carrier, Sentry Insurance, A Mutual Company, appeal a
circuit-court order affirming an order of the Labor and Industry Review
Commission: (1) awarding Trostel’s
employee,
I.
¶2 It is undisputed that Calderon hurt his lower back on
¶3 In May of 2002, Calderon sought from the Worker’s Compensation Division of the Department of Industry, Labor and Human Relations additional temporary total-disability benefits, medical expenses, and a determination that he had a permanent disability.[2] Trostel and Sentry Insurance admitted liability for a seven-percent permanent partial-disability, but claimed that: (1) further treatment was unnecessary; and (2) Calderon was not entitled to additional disability benefits.
¶4 An administrative law judge held hearings in March and August of 2003. During the August of 2003 hearing, Calderon testified that he was, as phrased by the Commission, in “unremitting pain” and that he wanted additional surgery. The administrative law judge adjourned the hearing so that Calderon could get additional treatment.
¶5 On
¶6 The administrative law judge held another hearing in October
of 2005. As material, the issues were,
whether: (1) the December 2, 2003,
surgery was reasonable and necessary; (2) the proposed disc-replacement surgery
was reasonable and necessary; and (3) Calderon was entitled to additional
temporary total-disability benefits. Calderon
testified and the parties submitted several exhibits, including: (1) reports dated
¶7 In his report of
¶8 In Dr. Geisler’s June 15, 2005, report, he reiterated his
diagnosis of “mechanical instability at L5-S1,” opining that it was “directly
caused” by Calderon’s accident at Trostel in June of 2000. When asked if Calderon would be able to
return to work and to estimate the percentage of Calderon’s permanent
disability,
¶9
¶10 The administrative law judge found that the December of 2003
surgery was “reasonable and necessary to cure and relieve [Calderon] from the
effects of the accidental injury of June 7, 2000.” In making this determination, the administrative
law judge considered but rejected
¶11 The administrative law judge also determined that the disc-replacement
surgery was necessary to “cure and relieve [Calderon] from the effects” of his
accident in June of 2000 while working for Trostel. As authorized by Wis. Stat.
§ 102.18(1)(b), the administrative law judge ordered that Trostel
and Sentry Insurance “are liable for the reasonable medical expenses incurred
as a result of the prospective dynamic lumbar stabilization implant surgery at
L5-S1.”[3] The administrative law judge again considered
but rejected
As
credibly noted by
(Underlining in original.)
¶12 Finally, the administrative law judge awarded temporary total-disability benefits to Calderon from, as material, September 26, 2003, the day Calderon began treatment with Dr. Geisler, through June 15, 2005, finding that “[a]s of Dr. Geisler’s most recent report of June 15, 2005, [Calderon] remained temporarily disabled pending the dynamic lumbar stabilization surgery.” The administrative law judge also reserved jurisdiction “for such further findings and awards as may be warranted.”
¶13 Both sides appealed to the Commission. The Commission affirmed, and, in addition to a brief explanatory memorandum opinion, adopted the findings of fact and legal conclusions of the administrative law judge.
II.
¶14 On appeal, we review the opinion of the Commission and not that
of the circuit court.
In reviewing a determination of an administrative
agency, we give deference along a gradient that varies with the nature of the
agency’s expertise and experience. See UFE Inc. v. Labor & Indus. Review Comm’n,
201
Dettwiler
v. Wisconsin Dep’t of Revenue, 2007 WI App 125, ¶4, 301 Wis. 2d 512,
516, 731 N.W.2d 663, 665. We analyze de novo any constitutional issues that
may be lurking in the Record. See Hakes
v. Labor & Indus. Review
A.
¶15 As we have seen, Wis. Stat. § 102.18(1)(b) provides, as material:
Pending the final
determination of any controversy before it, the department may in its
discretion after any hearing make interlocutory findings, orders, and awards,
which may be enforced in the same manner as final awards. The department may include in any interlocutory or final award or order
an order directing the employer or insurer to pay for any future treatment that
may be necessary to cure and relieve the employee from the effects of the
injury.
(Emphasis added.) Section 102.18(1)(b) gives the Commission authority to order Trostel and Sentry Insurance to pay for Calderon’s prospective surgery. The statute is remedial and, accordingly, must be liberally construed to accomplish its purpose—to let the agency issue orders in an attempt to ensure that an injured worker will, to the extent possible, be made whole without forcing the parties to go through the extra expense entailed in a post-order assessment of whether further medical treatment is necessary. See Emmpak Foods, Inc. v. Labor & Indus. Review Comm’n, 2007 WI App 164, ¶13, ___ Wis. 2d ___, ___, 737 N.W.2d 60, 65 (The Worker’s Compensation Act is “remedial [and] must be liberally construed to afford compensation.”); Lisney v. Labor & Indus. Review Comm’n, 171 Wis. 2d 499, 503, 514–516, 493 N.W.2d 14, 15, 20 (1992) (employer required “to pay medical expenses even after a final order has been issued” when prior version of § 102.18(1)(b) was in effect). Thus, the end result is the same under either version of the statute—Trostel and Sentry Insurance must pay for Calderon’s treatment for his work-related injury as that treatment becomes necessary.
¶16 Trostel and Sentry Insurance claim, however, that the Commission’s order violates their due-process rights. First, they contend that it is not specific as to when and under what circumstances Calderon will have the disc-replacement surgery at their expense. They assert that Calderon’s medical condition could change, and argue that the “open-ended” nature of the order “potentially deprives [them] of a hearing on the relevant facts and issues at the time Calderon might chose [sic] to undergo the surgery.” We disagree.
¶17 As we have seen, the administrative law judge retained jurisdiction
“for such further findings and awards as may be warranted.” Accordingly, if Calderon’s medical condition
changes, Trostel and Sentry Insurance may at that time seek a determination as
to whether disc-replacement surgery is still reasonable and necessary. See Wright v. Labor & Indus. Review Comm’n,
210
¶18 Trostel and Sentry Insurance also claim
that the retroactive application of Wis. Stat. §
102.18(1)(b) violates due process because the “open-ended nature” of the
Commission’s order “potentially affects the[ir] rights [] to rely upon a statue
of limitations defense in the future.” We
do not give advisory opinions on what might or might not happen in the future
when the parties, as here, can assert their contentions when and if the matter
they fear becomes a reality. See State
v. Armstead, 220 Wis. 2d 626, 631, 583 N.W.2d 444, 447 (
¶19 Finally, in a largely undeveloped
contention, Trostel and Sentry Insurance claim that Wis.
Stat. § 102.18(1)(b) violates due process for the reasons they asserted
in their argument on specificity. Statutes
are, however, presumed to be constitutional, and a party contending that a
statute is unconstitutional must show that beyond a reasonable doubt. Aicher ex rel. LaBarge v. Wisconsin Patients
Comp. Fund, 2000 WI 98, ¶¶18–19, 237
B.
¶20 Trostel and Sentry Insurance also claim that the Commission’s determination
that the December 2, 2003, surgery and the prospective disc-replacement surgery
are reasonable and necessary is not supported “by the record as a whole.” See
Princess
House, Inc. v. Department of Indus., Labor & Human Relations, 111
¶21 As noted above, we must affirm if the record contains any credible
and substantial evidence to support the Commission’s findings of fact.
¶22 The Record supports the Commission’s decision. As we have seen,
· Michael C. Collopy, M.D., the physician whom the Commission notes was “retained” by Sentry Insurance, opined that, as of March of 2001, Calderon had not reached a “healing plateau” and recommended, among other things, a “micro diskectomy at 4-5”;
·
·
The Commission
could reasonably conclude from this evidence that the December 2, 2003,
surgery and the disc-replacement surgery were reasonable and necessary. While
¶23 Finally, Trostel and Sentry Insurance contend that the
Commission’s decision to award Calderon temporary total-disability benefits from
September 26, 2003, through June 15, 2005, is not supported by credible and
substantial evidence. Specifically, they
argue that Calderon is not entitled to disability benefits after the
¶24 An employer must pay temporary total-disability benefits during
the injured employee’s healing period. GTC
Auto Parts v. Labor & Indus. Review
[T]he healing period is that period during which “the employee is submitting
to treatment, is convalescing, still suffering from his injury, and unable to
work because of the accident. The
interval may continue until the employee is restored so far as the permanent
character of his injuries will permit.”
ITW
Deltar v. Labor & Indus. Review Comm’n, 226
¶25 Here, although there is no evidence
that Calderon had any specific medical procedures after May 14, 2004, Dr. Geisler’s
June of 2005 report implicitly recognized that Calderon was still in a healing
period. As we have seen,
By the Court.—Order affirmed.
Publication in the official reports is not recommended.
[1] The circuit-court order purports to affirm the Commission’s “decision.” The dispositive Commission document is, however, an “order.”
[2]
The Department of Industry, Labor and Human Relations was renamed the
Department of Workforce Development. See Heritage Mut. Ins. Co. v. Larsen,
2001 WI 30, ¶75 n.38, 242
[3]
Wisconsin
Stat. § 102.18(1)(b) was amended by 2001 Wis. Act 37, § 21, effective
Pending
the final determination of any controversy before it, the department may in its
discretion after any hearing make interlocutory findings, orders, and
awards, which may be enforced in the same manner as final awards. The
department may include in any interlocutory or final award or order an order
directing the employer or insurer to pay for any future treatment that may be
necessary to cure and relieve the employee from the effects of the injury.
(New material underlined.)
[4]
In their main brief on appeal, Trostel and Sentry Insurance claim that