GARY D MULDER, Applicant

CONWAY CENTRAL EXPRESS INC, Employer

CONWAY CENTRAL EXPRESS INC, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 30, 2006
mulderg . wsd : 101 : 9   ND  § 8.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer and its insurer (collectively, the respondent) concede the applicant injured his ankle on June 22, 1995, when the applicant caught his foot on a pallet. An x-ray showed a non-displaced fracture of the talus (exhibit G, June 22, 1995 reports of Dr. Meress and of Dr. Vasquez). The applicant now seeks compensation related to plantar fasciitis and back pain that he associates with the June 22, 1995 injury.

The ALJ found for the applicant and the respondent appeals. On appeal, the respondent asserts that its medical expert, Dr. Orth, gives a more credible opinion than those of the applicant's treating podiatrists, Drs. DeGere and Wolfington. The respondent asserts that Drs. DeGere and Wolfington were not aware of the applicant's prior injuries in 1989 and 1991, and that the applicant's current claim is inconsistent with Dr. Mitchell's release in August 1996 and years of relatively little treatment thereafter. The respondent noted, too, Dr. Mitchell's observations about the applicant's litigiousness, and asserts further that there is no connection between the chiropractic back treatment and the plantar fasciitis. Finally, the respondent raises Wis. Stat. § 102.12 as a legal defense.

Regarding the earlier injuries, the actual x-rays reports and treatment notes from the 1989 and 1991 injuries indicate that the x-rays done at that time were essentially negative. The applicant had little follow-up treatment for the 1989 and 1991 injuries. While the June 22, 1995 x-ray report done following the work injury now at issue does note an "os trigonum ... [that] has been present since the exam from 02/05/91," (1)  neither the February 5, 1991 x-ray report itself nor the treatment note the following day mentions an os trigonum. Indeed, both describe the February 5, 1991 left foot x-ray as negative. (2)  Assuming, however, that the os trigonum was in fact present in 1991, it was not until after the June 1995 work injury that the os trigonum became painfully symptomatic leading to treatment and ultimately surgery. Further, as the applicant points out, the employer's medical expert, Dr. Orth, stated the plantar fasciitis diagnosis did not arise until six months after the end-of-healing for the facture. However, Dr. Mannebach first noted plantar fasciitis in August 1995 -- while the applicant was still treating for the June 1995 fracture from the work injury. On this record, the commission declines to discredit the reports of Dr. Wolfington and DeGere because those doctors had an inaccurate history.

The commission also declines to conclude that the applicant's bicycle riding is either causally related to the applicant's current foot problems, or that the ability to ride a bike after the work injury is inconsistent with the diagnosis of a continuing problem. Dr. Orth does not directly say the bike-riding caused the condition. Further, Dr. Del Toro, who included plantar fasciitis as a diagnosis in his report, in fact recommended biking, and other nonweightbearing exercise, to maintain conditioning, strength and endurance. Exhibit D.

Dr. Mitchell, to be sure, did mention secondary gain and note that the applicant was litigious in his note of June 26, 1996. However, one week later on July 3, 1996, Dr. Mitchell recorded that the applicant told him his ankle felt much better and sought to return to regular duties. Indeed, as the respondent points out, Dr. Mitchell eventually released the applicant in August 1996. Thereafter, the applicant continued to see Dr. Wolfington occasionally for adjustment of his orthotics in 1996, 1997, 1998, and 2000, before left heel pain led Dr. DeGere to wonder about a flare-up of the previously resolved plantar fasciitis in August 2002.

The ALJ awarded three days of temporary total disability for back pain in January 2006, during which time the applicant saw podiatrist DeGere and medical doctor Frownes. Podiatrist DeGere opined these symptoms were due to compensating for the plantar fasciitis. The commission, like the ALJ, finds that diagnosis quite credible.

Finally, the Wis. Stat. § 102.12 defense is unavailing. By its terms,(3)  that statute applies when notice of injury is not given or when the employer does not know of the work injury. Here the employer conceded the June 22, 1995 work injury and does not dispute the applicant's representation in his application that he gave notice of the injury on the day it occurred.

cc: Attorney Nick G. Kotsonis

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(1)( Back ) Exhibit G, June 22, 1995 "Medical Imaging Report" signed by L.A. Vasquez, M.D.

(2)( Back ) The February 5, 1991, x-ray report did not an unusual contour to the tip of the lateral malleous, not significantly changed from the 1989 x-ray, which was most likely developmental though simulating an avulsion fracture.

(3)( Back ) Wisconsin Stat. § 102.12 provides:

102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employee knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employee or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17(4). {Emphasis supplied.]

Under section 102.12, Stats., the burden is on the respondent to show that it was misled by any lack of notice. Manitowoc County v. ILHR Dept., 88 Wis. 2d 430, 436, 276 N.W.2d 755 (1979); Milwaukee v. Industrial Comm., 21 Wis. 129, 136, 124 N.W.2d 112 (1963); Michigan Quartz Silica Co. v. Industrial Comm., 214 Wis. 289, 294, 252 N.W. 682 (1934). With regard to the two-year filing requirement, the Wisconsin Supreme Court stated in Trustees, Middle River Sanitorium v. Industrial Comm., 224 Wis. 536, 542, 272 N.W. 483, 485 (1937):

"What an employe may think as to the nature of his disability and its relation to his employment is not alone sufficient to start the running of the two-year statute of limitations. To so hold would be to adopt an unthinkably harsh rule. What an employe thinks must be based on something more than suspicion and conjecture in order to start the running of the statute of limitations. Such thought must be based upon knowledge of, or upon reliable information regarding the nature of his disability and its relation to his employment. It is, of course, not necessary that the employe know the precise name employed by the medical profession to describe his disability, but he must have knowledge or an appreciation of the nature of his disability and its relation to his employment."

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