UFE Inc. v. Labor and Industry Review Com'n, 94-2794

• Decision Date: 04 April 1995
• Docket Number: No. 94-2794,94-2794
• Citation: 193 Wis.2d 361,534 N.W.2d 627
• Court: Wisconsin Court of Appeals
• Parties: UFE INCORPORATED and Pacific Indemnity Company, d Plaintiffs-Appellants, v. LABOR AND INDUSTRY REVIEW COMMISSION and Jerry Huebner, Defendants-Respondents.

Page 627

534 N.W.2d 627

193 Wis.2d 361

UFE INCORPORATED and Pacific Indemnity Company,^d Plaintiffs-Appellants, v. LABOR AND INDUSTRY REVIEW COMMISSION and Jerry Huebner Defendants-Respondents.

No. 94-2794.

Court of Appeals of Wisconsin.

Submitted on Briefs March 6, 1995.

Opinion Released April 4, 1995.

Opinion Filed April 4, 1995.

For the plaintiffs-appellants the cause was submitted on the briefs of Bradley C. Lundeen of Mudge Porter & Lundeen, S.C., Hudson.

For the defendants-respondents the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Lowell E. Nass, Asst. Atty. Gen.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

UFE Incorporated and Pacific Indemnity Company (UFE) appeal a judgment that affirmed the Labor and Industry Review Commission's determination that UFE was responsible for the out-of-state health care expenses incurred by its employee, Jerry Huebner, as a result of injuries that he sustained during the course of his work. LIRC found that because Huebner's physician referred him to an out-of-state health care provider, UFE was responsible for the out-of-state health care despite the fact that Huebner did not obtain its consent prior to undergoing the care. UFE, however, contends that under § 102.42(2)(a), STATS., it may only be held responsible for medical expenses that an employee incurs from an out-of-state health care provider if it agrees to permit the employee to seek out-of-state health care. Because Huebner did not seek or obtain permission from UFE to obtain out-of-state health care services, UFE contends that the trial court erred by affirming LIRC's determination that UFE is responsible for Huebner's out-of-state health care expenses. We conclude that ch. 102 does not require an employee to obtain the employer's consent prior to obtaining out-of-state health care where the employee's Wisconsin physician refers him or her to the out-of-state health care provider. We therefore affirm the judgment.

The facts of this case are undisputed. Jerry Huebner worked as a press operator for UFE Incorporated. After thirteen years of employment, Huebner developed right and left wrist problems, which were determined to be work related. As a result of his injury, Huebner obtained treatment from several doctors. Eventually, Huebner's family physician, Dr. Eugene Jonas, referred him to the Mayo Clinic in Rochester, Minnesota, for further evaluation. Huebner visited the Mayo Clinic on three occasions and incurred medical expenses totaling $2,204.40. Huebner did not seek or obtain UFE's consent prior to obtaining treatment at the Mayo Clinic. Huebner ultimately presented his medical expenses to UFE for payment. Relying on § 102.42(2)(a), STATS., UFE refused to provide payment for the medical expenses, claiming that it was not responsible for the expenses because Huebner failed to obtain its consent prior to undergoing the out-of-state medical treatment.

Huebner subsequently filed an application with the Department of Industry, Labor and Human Relations seeking payment of the out-of-state medical expenses. A hearing was held before the administrative law judge (ALJ) who concluded that UFE was responsible for the medical expenses. The ALJ found that § 102.42(2)(a), STATS., only requires an employee to obtain consent from the employer before undergoing out-of-state medical care where the employee "chooses" to obtain out-of-state treatment. Here, however, the ALJ concluded that because Huebner's Wisconsin physician referred him to the Mayo Clinic, he did not choose to obtain out-of-state treatment. The ALJ therefore concluded that § 102.42(2)(a) was inapplicable.

UFE appealed the ALJ's decision to LIRC. LIRC, however, agreed with the ALJ's conclusion, stating:

The last sentence in section 102.42(2)(a), STATS., provides that treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner. In this case [Huebner] testified that his treating physician, Dr. Jonas, referred him to the Mayo Clinic in Minnesota for treatment. In a previous commission decision, Mary Ann Olson v. Northern Engraving Corp., commission decision dated December 30, 1992, involving a similar referral by a treating physician to the Mayo Clinic for treatment, the commission noted that the statute clearly distinguishes between an applicant's choice to see a specific physician in the first instance and a subsequent referral to another physician. The commission held that the statute limits the choice of an out of state physician rather than a referral to one, and that prior permission from the insurer is not necessary for a referral to the Mayo Clinic assuming that the applicant was actually referred there.

LIRC therefore concluded that Huebner's out-of-state medical expenses were covered under the Act. On further appeal, the trial court concluded that LIRC's decision was proper and granted judgment in favor of Huebner.

The first issue we must address is the standard of review to be applied in reviewing LIRC's determination. Our supreme court has created three standards of review to be applied to LIRC's conclusions of law and statutory interpretations:

First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review is a mid-level standard that provides if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The third level of review is de novo and is applied when the case is clearly one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.

Kelley Co. v. Marquardt, 172 Wis.2d 234, 244-45, 493 N.W.2d 68, 73 (1992) (citations omitted). Recently, however, this court has stated that where deference is appropriate under the standards just discussed, "the deference to be accorded the agency's interpretation--however it may be characterized--is this: '[W]e will affirm the [agency's] interpretation of the statute if it is reasonable, even if another conclusion would be equally reasonable.' " Carrion Corp. v. DOR, 179 Wis.2d 254, 265, 507 N.W.2d 356, 359 (Ct.App.1993). Thus, whether we review LIRC's determination with great deference or due deference, we will affirm its decision if it is reasonable. Id.

UFE contends that we should apply a de novo standard of review to LIRC's decision because LIRC does not have a long-standing rule regarding the availability of out-of-state medical care following a referral from a Wisconsin physician. Indeed, UFE contends that LIRC has only issued three decisions on the question whether out-of-state medical expenses that are incurred without the employer's consent are covered under the Worker's Compensation Act. UFE further contends that each of these decisions has resulted in a different outcome.

The three decisions to which UFE refers are: AMC v. LIRC, No. 84-CV-5736 Dane County (June 10, 1985), based on a commission decision dated September 27, 1984; Allans Electric Inc. v. LIRC, No. 88-CV-1058 Wood County (Nov. 16, 1989), based on a commission decision dated October 10, 1988; and the commission's decision in Olson v. Northern Engraving Corp., No. 90-053540 (Dec. 30, 1992). In AMC, the Dane County Circuit Court reversed a LIRC decision that found an employer responsible for out-of-state medical expenses incurred by its employee. In Allans Electric, the Wood County Circuit Court affirmed a LIRC decision, which concluded that "Wisconsin law prevents imposition of liability upon the [employer] for charges incurred by the [employee] for treatment by practitioners in Illinois." Id. at 4. Finally, in Olson, LIRC concluded that § 102.42(2)(a), STATS., does not excuse an employer from liability for out-of-state medical expenses that its employee incurs following a referral from a Wisconsin physician. Based upon LIRC's foregoing determinations, UFE contends that LIRC does not have special expertise in the application and ...