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

PATRICIA MORAN, Applicant

SHARED TECHNOLOGIES CELLU, Employer

HARTFORD FIRE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-007755

The applicant submitted a late petition for commission review alleging error in the administrative law judge's dismissal order issued on July 21, 2006, that dismissed the application to reopen her compromise without prejudice.

The preliminary issue is the lateness of the petition, which would have been timely only if it had been filed by August 14, 2006. The applicant's petition was received on August 17, 2006, three days late. However, the applicant's attorney has explained that during the appeal period he was receiving medical treatment for a transplanted kidney that ultimately had to be surgically removed. As a result of this serious illness he failed to keep track of the appeal period, and filed the petition late. The attorney is a member of a law firm, and as such should have advised one of the other firm members to monitor any case involving an appeal deadline. Nevertheless, in light of the fact that his illness was so serious and could therefore have affected his ability to monitor the appeal deadline, the late petition will be accepted. The Commission makes the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW


The commission has carefully reviewed the administrative file in this matter, and herein affirms the administrative law judge's dismissal of the applicant's application to reopen her compromise, except that the words "without prejudice" will be deleted from the ALJ's dismissal order. The applicant and her attorney have correctly noted that the ALJ's dismissal of her request to reopen the compromise was effectively a dismissal with prejudice, because the one-year time limit for reopening the compromise has expired. Thus, the applicant is precluded by statute  (1)  from filing another application. The dismissal will be affirmed because the administrative file reveals that the applicant received repeated requests to provide supporting documentation for her request to reopen the compromise, and ultimately received ample warning that if such documentation was not forthcoming, her request would be dismissed. The applicant's repeated failure to provide necessary documentation makes the dismissal of her application reasonable and appropriate. The fact that the dismissal leaves the applicant without recourse to file a new application to reopen the compromise is merely the consequence of the law as applied to the facts surrounding her application.

Recently, the applicant submitted to the commission a copy of a letter from Dr. Alvin F. Wells dated August 24, 2006. In that letter, Dr. Wells noted that he had begun treating the applicant on February 1, 2006, and that she had undergone work-related surgery to her right knee, and had been diagnosed with reflex sympathetic dystrophy. Dr. Wells also noted that the applicant had been on multiple medications and that there had been a positive ANA (Antinuclear Antibody) test, but no clinical signs or symptoms of an autoimmune or inflammatory process. Dr. Wells noted that a functional capacity evaluation deemed the applicant to be incapable of having a full-time job, and that "...most of this has been triggered by her initial injury."

Also submitted was a pre-printed statement signed by Dr. Wells, which provided:

"To a reasonable degree of medical probability the current problems Fibromyalgia, ANA and Lupus and the diagnosis or any part of such diagnosis with regard to Fibromyalgia, ANA, or Lupus could not have been reasonably foreseen at the time this case was originally settled in January 2003."

In his letter, Dr. Wells fails to explain what he means when he writes that "most of this" has been triggered by the initial work injury. The medical records filed by the applicant in support of her request to reopen the compromise reveal that she had multiple, chronic pain complaints prior to the Limited Compromise Agreement of January 29, 2003. She had also been diagnosed with reflex sympathetic dystrophy, also known as complex regional pain syndrome. Dr. Wells refers to a positive ANA test but his letter does not include any mention of fibromyalgia or Lupus. In fact, Dr. Wells wrote that there were no clinical signs of an autoimmune or inflammatory process. The pre-printed statement that he signed was clearly not drafted by him, and its listings of fibromyalgia and Lupus as diagnoses are not supported by any clinical diagnosis from Dr. Wells, nor does Dr. Wells causally link these alleged conditions to the applicant's work injury. In short, Dr. Wells' medical opinion does not support an inference that the applicant suffers from any work-related medical problem that was not contemplated by the parties when the Limited Compromise was signed on January 29, 2003. Accordingly, there is no reasonable basis to reopen the compromise.

NOW, THEREFORE, this

ORDER


The dismissal order issued by the administrative law judge on July 21, 2006, is modified to eliminate the phrase "without prejudice," but is otherwise affirmed. The application to reopen the compromise is dismissed.

Dated and mailed October 30, 2006
moranpa2 . wpr : 185 : 8   ND § 9.2   ND § 10.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Gary Stanislawski
Attorney John P. Higgins


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Footnotes:

(1)( Back ) See Wis. Stat. § 102.17(4), which provides that any review of a compromise must be accomplished within one year from the date of the compromise.

 

uploaded 2006/11/01