MIA BIANCA BURDETT, Applicant

RESEARCH PRODUCTS CORP, Employer

UNITED WISCONSIN, Insurer

On May 30, 2006, the applicant filed an application under Wis. Stat. § 102.18(5), seeking to have a decision on the merits of the applicant's worker's compensation claim set aside and her claim reopened. On August 16, 2006, Administrative Law Judge (ALJ) Andrew Roberts of the Worker's Compensation Division of the Department of Workforce Development conducted a pre-hearing conference, after which he advised the parties he would issue either a letter stating the matter would proceed to hearing or an order dismissing the application with prejudice.

On August 21, 2005, ALJ Roberts issued an order dismissing the May 30, 2006 application with prejudice. The applicant filed a timely petition for review.

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 makes the following:

1. Background and posture.

The merits of the applicant's claim for compensation under Wis. Stat. ch. 102 were originally heard before ALJ John Clarke on March 27, 2003. Following the hearing, ALJ Clarke found that the applicant suffered a compensable work injury on January 19, 2001. Specifically, he found the applicant suffered an exacerbation of her underlying disease on January 19, 2001, relying on the report of one of the applicant's treating doctors, Dr. Potter.

The respondent petitioned the commission for review of ALJ Clarke's decision. The commission reversed ALJ Clarke's decision and dismissed the applicant's claim. The commission pointed out that Dr. Leonard -- another treating doctor -- implicitly questioned the occurrence of any accidental or traumatic injury on January 19, 2001, by noting "ongoing problems" and treatment for similar symptoms with Dr. Weigert one day earlier when she told Dr. Weigert that she had had back pain for the past three months. The commission noted, too, that Dr. Leonard ruled out work exposure as cause of the disability to the back. The commission added that after watching the videotape, it could not conclude the applicant's work activity caused the applicant's injury.

In other words, the commission concluded that the applicant had not proved her disabling back condition was caused by an accident or traumatic event on January 19, 2001, and that the record did not support the conclusion that work exposure as of that date had caused the applicant's disability. The commission stated:

...even at the rate which the applicant testified she produced, 200 to 250 filters per hour, or a filter every 15 or 20 seconds, the commission cannot conclude the work activity caused the applicant's injury.

In short, the commission concludes that to the extent the applicant has problems from a work injury, they relate to her 1998 injury as Dr. McDevitt opined. The applicant's symptoms from the 1998 injury, or her pre-existing degenerative condition, merely manifested themselves at work on or about January 2001; work activity at that time neither was a material contributory causative factor in the progression of her condition nor precipitated, aggravated, or accelerated a pre-existing degenerative condition beyond its normal progression.

Because the applicant has not established an injury arising out of her employment with the employer, while performing services growing out of or incidental to that employment, the application for hearing shall be dismissed. [Emphasis supplied.]

The applicant appealed to circuit court, where the commission's decision was affirmed. No further appeal was taken. Then, on May 30, 2006, three years to the date of ALJ Clarke's decision, the applicant filed a second application -- the one now before the commission -- seeking compensation for her injury and asking for hearing under Wis. Stat. § 102.18(5).

Wis. Stat. § 102.18(5) provides:

102.18(5) If it shall appear to the department that a mistake may have been made as to cause of injury in the findings, order or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, the department may upon its own motion, with or without hearing, within 3 years from the date of such findings, order or award, set aside such findings, order or award, or the department may take such action upon application made within such 3 years. Thereafter, and after opportunity for hearing, the department may, if in fact the employee is suffering from disease arising out of the employment, make new findings and award, or it may reinstate the previous findings, order or award. (1)

The applicant reads Wis. Stat. § 102.18(5) to mean that the department has jurisdiction to set aside the award and take further action "based on the possibility that a mistake was made by the ALJ at the evidentiary hearing as to the cause of injury based on accident, when in fact the applicant may have been suffering from an occupational disease." Applicant's initial brief, page 5. The applicant further asserts that:

"a hearing under s. 102.18(5), Wis. Stats., is appropriate where the ALJ did not actually rule on both the issues of accidental injury and injury from occupational disease and the facts alleged by the applicant are sufficient to show, or potentially show, that he or she is suffering from an occupational disease."

Id., at page 7.

In response, the respondent argues that (1) the applicant's application under Wis. Stat. § 102.18(5) is untimely, (2) the occupational disease theory and evidence supporting the claim was presented to ALJ Clarke, and his 2003 order regarding the cause of the injury addresses occupational disease, and (3) the commission's 2004 order on the merits expressly considered the occupational disease claim and rejected it. (2)

2. Discussion.

a. Timeliness.

Wisconsin Stat. § 102.18(5) requires the department to set aside the award within three years if the department acts on its own motion. On the other hand, as the applicant points out, if instead the statute is raised on application made by a party, only the application need be made within 3 years; department action in setting aside the original decision need not occur within that 3-year period.

ALJ Clarke issued his decision on the merits on May 30, 2003, and the application under Wis. Stat. § 102.18(5) was filed on May 30, 2006. Time periods set by statute are determined excluding the first day and including the last. Wisconsin Stat. § 990.001(4)(a). Excluding the first day (May 30, 2003) of the 3-year period in Wis. Stat. § 102.18(5), the last day in that period is May 30, 2006 (the day the application at issue here was filed. (3))  Since Wis. Stat. § 108.18(5) requires only that the application be filed by May 30, 2006, not that the department or commission have acted upon it, the application is timely.

Further, as explained below, if a petition for review is filed, the ALJ's decision continues in force only to the extent adopted or affirmed by the commission. Here, the commission reversed ALJ Clarke's May 30, 2003 decision on the merits. A strong argument could be made that the 3-year period under Wis. Stat. § 102.18(5) does not run from the date of ALJ Clarke's decision at all, but from the date of the commission's decision, which was June 10, 2004.

b. The occupational disease theory and ALJ Clarke's order.

The respondent next contends that the occupational disease theory was presented to ALJ Clarke and that his decision finding a compensable injury should be read to address that theory of injury. The applicant does not dispute that the issue of occupational disease was tried before ALJ Clarke. As the respondent points out, the applicant claimed on judicial review of the subsequent commission decision that the evidence in the hearing record required a finding of causation by occupational disease. Indeed, the applicant currently asserts that based on the hearing record, ALJ Clarke should have considered occupational disease (Applicant's initial brief, page 4) and the hearing record included substantial evidence that the applicant suffers from an occupational disease (Id., at page 7.)

The record developed at the hearing before ALJ Clarke contained opinions expressed by doctors on the question of occupational disease, including:

1. Dr. Leonard's opinion that he could not say with certainty that her occupational activities at Research Products over the past 17 years had led to an occupational injury.

2. Dr. Potter's practitioner's report opining that twisting movement when the applicant worked on the assembly line was an appreciable period of work place exposure that was at least a material contributory causative factor in the onset or progression of her disabling condition.

3. Dr. Goodman's opinion rejecting occupational exposure as a cause of her disability.

Clearly, this is not a case where the ALJ prevented the applicant from putting on a case of occupational disease, or where for some other reason the occupational disease claim was not fully tried. The record was made. No due process or fair hearing issue has been raised. Rather, the applicant argues ALJ Clarke did not adequately consider the evidence in the record in his decision following the first hearing back in 2003.

The extent to which ALJ Clarke considered the evidence dealing with occupational disease is in dispute. As the ALJ Andrew Roberts pointed out, ALJ Clarke summarized Dr. Goodman's opinion which discussed the applicant's work activity or exposure making filters. On the other hand, ALJ Clarke never mentions "occupational disease" nor does he expressly state the applicant's work injury was caused by work activity or occupational exposure. Nor does ALJ Clarke's decision specifically refer to an "accident" on January 18, 2001, though at the hearing he did state his understanding that there was an accident in January 2001. March 17, 2003 transcript, page 48.

c. The commission's 2004 order

After ALJ Clarke issued his decision, of course, the matter was considered de novo by the commission. The commission reversed ALJ Clarke's decision and issued its own findings of fact and order dismissing the application. On review of ALJ Clarke's decision, the commission did specifically consider the issue of occupational disease, as well as the evidence relating to that issue in the hearing record. The commission's June 2004 order expressly ruled out causation by occupational disease by concluding that the applicant's work activity was not "a material contributory causative factor in the progression of her condition." (4)

As noted above, the commission's order was affirmed in circuit court, and no further appeal was taken. However, the applicant argues that the commission's order does not change the fact that ALJ Clarke never considered the occupational disease issue, and that jurisdiction under Wis. Stat. § 102.18(5) is based on the possibility that a mistake was made by the ALJ at the evidentiary hearing.

The applicant cites no authority for the proposition that an application under Wis. Stat. § 102.18(5) turns on a mistake in the ALJ's decision rather than in the commission's decision on review. While focusing on the proceeding before the ALJ would make sense if the ALJ had somehow limited the testimony or evidence on occupational disease at the hearing, again, the applicant does not make that claim. Rather, she argues that ALJ Clarke made a mistake in analyzing, or in not analyzing, evidence that was in the record regarding occupational disease.

However, the supreme court has held that if a petition is filed with the commission, the ALJ's decision falls away from consideration except insofar as it may be ultimately adopted by the commission. (5)   Since the commission issued its own decision on the merits in this case in June 2004, ALJ Clarke's May 2003 decision -- and any possibility that he might have been mistaken about causation by accident rather occupational disease -- no longer carries any force. This is especially true as the commission reversed ALJ Clarke's decision on causation and issued its own findings and conclusion that expressly rule out causation by occupational disease.

In such a case, Wis. Stat. § 102.18(5) simply does not apply. As the supreme court stated in a case cited by the applicant:

Rathjen supports our interpretation that sec. 102.18 (5) would not be applicable if a final order had previously been entered in which the question of occupational disease had been litigated.

Murphy v. ILHR Department, 63 Wis. 2d 248, 254(1974) (citing Rathjen v. Industrial Commission, 233 Wis. 452 (1940)).  (6)  Here, the commission entered a final order resolving the issue of causation by occupational disease, following a hearing at which the question of occupational decision had been fully litigated. Consequently, the application under Wis. Stat. § 102.18(5) in this case should be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of Administrative Law Judge Roberts are modified to conform to the foregoing and, as modified, are affirmed. The application is dismissed with prejudice.

Dated and mailed December 22, 2006
burdett . wrr : 101 : 1  ND  § 8.47

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Barry Stern
Attorney Mark Ringsmuth

Appealed to Circuit Court.  Affirmed, August 10, 2007.

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(1)( Back ) An explanatory footnote appended by the department in its biennial publication of the worker's compensation statutes further explains:

¹¹⁰ If the department finds that a mistake has been made as to the cause of injury, mistakenly determined to be on the basis of accident when in fact an employee was suffering from an occupational disease, the department may with or without hearing within three years from the date of the erroneous findings set aside the order. Likewise, the department may take such action upon application made within such three years.

DWD, Worker's Compensation Act of Wisconsin, with Amendments to December 2004 (WKC-1-P (Rev. 12/2004)).

(2)( Back ) The employer also asserts that the applicant is barred from relitigating her claim by the principles of res judicata, collateral estoppel, stare decisis and law of the case, assertions which the commission does not reach in this decision.

(3)( Back ) Even if the three-year period had ended a day earlier, May 29, 2006 was Memorial Day, a legal holiday, extending the period in which the applicant could act to the next secular day. Wisconsin Stat. § 990.001(4)(b).

(4)( Back ) As to occupational disease as being work exposure that was a material factor in the development or progress of the disabling disease, see Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942); City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5.

(5)( Back ) Douglas County v. Industrial Commission, 275 Wis. 309, 317-18 (1956) ("[B]y reason of the employer ... and its insurer having timely moved for review of such examiner's award, such award ceased to have any effect whatsoever until such time as the commission took affirmative action with respect thereto"). See also: Indianhead Truck Lines v. Industrial Commission, 17 Wis. 2d 563, 567 (1962) (The ultimate responsibility for findings is upon the commission itself); Anheuser Busch, Inc., v. Industrial Commission, 29 Wis. 2d 685, 692 (1966) (A court cannot ignore and jump over the findings of the Industrial Commission to reach those of the examiner which were set aside); Transamerica Ins. Co. v. ILHR Dept, 54 Wis. 2d 272, 281, notes 11 and 12 (1972)(same). The respective roles of the examiners (or ALJs) and the commission was also discussed in State v. Industrial Commission, 233 Wis. 2d 461, 465, 289 N.W.2d 769, 770-771 (1940), where the court held:

Under the statutes authorizing the examiner to act to the extent provided, there is no provision that the findings and order of the examiner shall be authoritative or binding unless acquiesced in, acquiescence being shown by failure of either party to question the order and to ask for review. When review is asked, the findings and order can become effective only when supported by the findings of fact by the commission and order made thereon by such commission as a body. The commission in reviewing findings and order of an examiner does not act as an appellate body but under its powers in an original proceeding. The commission is to make its own determination. If the commission decides to hear additional testimony it may do so. The petition to review under the statute transfers to the commission as a body the duty of passing upon the merits of the case.

(6)( Back ) Certain language from the Murphy decision taken out of context could be read to confuse the issue of the whether Wis. Stat. § 102.18(5) applies to the commission's order or the ALJ's order. For example, the case refers to "a situation where the original hearing considered the possibility of both accidental injury and injury caused by occupational disease" and "situations where the original order and award were based solely on the issue of 'accidental injury.'" Id., at 63 Wis. 2d 253. However, in Murphy the examiner's initial order on the merits in 1968 was affirmed by order of the department (then headed by three commissioners) in 1969, id., at 63 Wis. 2d 249, 250-51. The Murphy court subsequently referred to the "1968-1969 determination of the department, as affirmed by the trial court. " Id., at 63 Wis. 2d 251. The court thereafter concluded the 1968-1969 order denying compensation ruled on both the accidental injury and injury from occupational disease, so that Wis. Stat. § 102.18(5) did not apply. Id., at 63 Wis. 2d 254. The reference to the 1968-1969 order, thus, was a reference to the order of the department commissioners that affirmed the examiner's order on review, not the examiner's earlier order itself.

In short, Murphy should not be read to indicate that Wis. Stat. § 102.18(5) is somehow limited to the order of the presiding examiner (or ALJ), rather than the order of the commission in cases decided by the commission. Likewise, in Kwaterski v. LIRC, 158 Wis. 2d 112, 120 (Ct. App. 1990), another case involving Wis. Stat. § 102.18(5), the court focused on the commission's decision. 

uploaded 2006/12/27