MARVIN ZELAYA-ALVAREZ Applicant
PPC INDUSTRIES INC Employer
ROCHDALE INSURANCE Insurer
No. 2007-022224
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
July 30, 2020
Attorney Matthew D Kurudz
Attorney James A. Pitts
WORKER’S
COMPENSATION DECISION 1
Michael H. Gillick, Chairperson.
Pursuant
to authority granted in Wis. Stat. § 102.18(4)(c), the
commission hereby sets aside its decision issued in this
matter on January 31, 2020. In place of the decision it sets
aside, the commission substitutes the following:
Interlocutory
Order
The
administrative law judge's (ALJ's) decision issued in
this matter on June 25, 2019, is set aside, and the
commission's decision set forth herein is substituted in
its place.
The
application to reopen the limited compromise agreement of
June 5, 2014, is dismissed.
PPC
Industries, Inc. and Rochdale Insurance (respondents) are
prospectively liable for the cost of implantation of the
applicant's trial spinal cord stimulator. Contingent upon
the medical success of this trial, respondents are also
prospectively liable for the cost of permanent implantation
of a spinal cord stimulator.
Jurisdiction
is reserved with respect to the issue of medical expenses and
reimbursements, incurred during the period between May 1,
2014, and the close of the hearing record on April 30, 2019.
Jurisdiction is also reserved with respect to reimbursement
of applicant's attorney's costs, and with respect to
the issue of future medical expense.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
On
November 12, 2010, an ALJ of the Department of Workforce
Development, Worker's Compensation Division, issued a
decision finding that: (1) the applicant sustained a
compensable lumbar disc injury on June 4, 2007 (respondents
had previously conceded a compensable work injury but
disputed the extent of disability); (2) the injury resulted
in 25 percent permanent partial disability to the whole body,
for which respondents were liable; (3) respondents were also
prospectively liable for the cost of implantation of the
applicant's permanent spinal cord stimulator; and (4) the
decision was interlocutory with respect to the issues of
additional disability and medical expense. This decision was
not appealed.
On June
5, 2014, an ALJ of the Department of Workforce Development,
Worker's Compensation Division, issued a decision
approving a limited compromise agreement entered into by the
parties. The limited compromise resolved all issues related
to the work injury, except for the issue of medical expenses
that might be incurred after the date of May 1, 2014.
On May
7, 2018, an ALJ of the Department of Administration, Division
of Hearings and Appeals, Office of Worker's Compensation
Hearings,2 held a hearing to address the
applicant's request to reopen the limited compromise, as
well as his request for payment/reimbursement of additional
medical expense. Pursuant to stipulation by the parties, the
hearing record was not closed until April 30, 2019. On June
25, 2019, the ALJ issued a decision which found that
respondents were prospectively liable for the cost of
implantation of a new permanent spinal cord stimulator, and
that respondents were liable for the additional medical
expense/reimbursement amounts claimed by the applicant.
Additionally, the ALJ's decision was left interlocutory
with respect to the issue of future medical expense.
Respondents submitted a timely petition for commission
review, and on January 31, 2020, the commission issued the
decision which is herein set aside.
The
commission has herein set aside its previous decision and
substituted therefor its new decision. The commission has
taken this action after being informed by the department that
its decision to remand to the dispute resolution process the
issues of the reasonableness and necessity of medical
treatment incurred subsequent to the compromise date of May
1, 2014, would cause excessive delay for all concerned. The
matter will be more efficiently resolved through the normal
hearing process, should the parties be unable to reach
agreement between themselves, and additional hearing be
required. Accordingly, the commission makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is July 31, 1973, sustained a
conceded low back lifting injury that occurred while he was
employed with the employer on June 4, 2007. On June 13, 2007,
Yash Pannu, M.D., performed surgical fusion procedures at
L4-L5 and L5-S1 that included insertion of instrumentation
and a bone growth stimulator. The surgery initially provided
some relief of the applicant's pain symptoms, but his
pain subsequently recurred and increased in intensity. This
resulted in his consultation with another neurosurgeon,
Francisco J. Espinosa, M.D. Dr. Espinosa speaks Spanish, the
applicant's...
