STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN RUPNICK, Applicant

LEESON ELECTRIC CORPORATION, Employer

FIREMANS FUND INSURANCE CO OF WI, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1999-028764, 2005-018920


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 17, 2006. Briefs were submitted by the parties. At issue are whether the applicant sustained additional disability attributable to the conceded low back injury of April 15, 1999; whether he sustained an occupational low back injury with a date of injury on April 13, 2004; and if he did sustain additional disability from the 1999 work injury, or from an occupational injury with a date of injury of April 13, 2004, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified:

MODIFIED FINDINGS OF FACT


Delete the second full paragraph on page 6 of the administrative law judge's decision and substitute therefor the following paragraph:

"Accordingly, the application for additional disability and/or medical expense attributable to the work injury of April 15, 1999, is dismissed."

Delete the final two sentences of the first full paragraph on page 9 of the administrative law judge's decision, and substitute the following sentence therefor:

"The applicant failed to prove an occupational back injury with a date of injury on April 13, 2004, and the application alleging such injury is dismissed."

Delete the administrative law judge's findings beginning with the final paragraph of page 9 of his decision, and continuing through the conclusion of his findings on page 13 of his decision, and substitute the following findings therefor:

"The applicant has asserted that he may have a claim for an occupational low back injury with a date of injury subsequent to April 13, 2004. However, if that is the case, the applicant must determine precisely what his claim is and file a new application for hearing. The claims made for additional disability attributable to the 1999 work injury, and for an occupational injury with a date of injury on April 13, 2004, are dismissed.

Applicant's Exhibit G consists of a claim for medical treatment expense (WKC-3), that quotes $4,510.11 in expenses on a Marshfield Clinic invoice, but neither the claim nor the invoice itemizes any expenses. In fact, the document contains a written statement from the applicant that the invoice may include some charges unrelated to the work-related claim. Obviously, this medical claim must be dismissed due to lack of proof."

Delete the administrative law judge's ORDER and substitute therefore the commission's ORDER set forth below.

NOW, THEREFORE, this

ORDER


The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The applications for additional disability attributable to the work injury of April 15, 1999, and for an occupational injury with a date of injury on April 13, 2004, are dismissed.

Dated and mailed September 25, 2006
rupnibr . wpr : 185 : 8 ND § 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission has modified the administrative law judge's decision in order to avoid any confusion that might arise from use of the phrase "with prejudice." The commission concurs with the administrative law judge's credible inferences that the applicant has no additional compensable claim attributable to the work injury of April 15, 1999, and that he failed to prove an occupational back injury with a date of injury on April 13, 2004. However, these findings do not preclude the applicant from bringing an occupational or traumatic injury claim with a date of injury subsequent to April 13, 2004, assuming the applicant is able to provide medical support for such claim. The administrative law judge's dismissal of the applicant's claims "with prejudice" was apparently intended in part to preclude any such subsequent claim, but to do so would violate due process. The fact that pre-hearing discussions may have included mention of alternative dates for an occupational back injury does not mean that an occupational claim for a date of injury subsequent to April 13, 2004, has been adjudicated. The commission's order is final with respect to any additional claim attributable to the 1999 work injury, and with respect to the claim for an occupational back injury with a date of injury of April 13, 2004. There is no need for use of the phrase "with prejudice" in this order.

cc:
Attorney Manlio Parroni
Attorney Jacqueline R. Chada
Attorney Mark Parman


 

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