RITA POST, Applicant
SCHOOL DISTRICT MAUSTON, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
This case comes before the commission on review of two separate decisions by administrative law judges (ALJs) for the Worker's Compensation Division of the Department of Workforce Development: a June 11, 2003 decision by ALJ Andrew M. Roberts, and an April 12, 2007 decision by ALJ Roberta Arnold.
1. ALJ Roberts' June 11, 2003 decision
The applicant was born in 1930, and worked for the employer as an elementary school teacher from the 1960s to 2000. She was injured twice in 1989: once on March 21, 1989 and once in September 1989. Each time, a passing student bumped his or her head into her jaw as the applicant stood in the doorway of her classroom.
The applicant filed an application for hearing on March 21, 2002. The application lists the dates of injury as "spring and Sept 1989" and describes the two separate incidents when passing students bumped their heads into her jaw. The applicant sought compensation for medical expenses and reinstatement of sick leave in lieu of temporary disability compensation. ALJ Roberts heard the claim on May 5, 2003.
At issue before ALJ Roberts was whether the applicant's claim was barred by the 12-year statute of limitations that applies in worker's compensation cases, Wis. Stat. § 102.17(4). (1) The injuries both occurred in 1989, and no actual disability compensation had been paid when the application for hearing was filed over 12 years later in 2002. ALJ Roberts noted that Wis. Stat. § 102.17(4)does provide that "[p]ayment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment." However, ALJ Roberts concluded that the evidence before him did "not clearly demonstrate that the employer was aware the applicant was undergoing treatment for this injury when she was off work on various different occasions after the injuries, as Sec. 102.17(4), Stats., requires to toll the statute of limitations." Accordingly, by order dated June 11, 2003, ALJ Roberts dismissed the application with prejudice, concluding it was barred by the statute of limitations.
Nearly four years later, the applicant filed a petition for commission review of ALJ Roberts' June 11, 2003 decision, which the commission received on April 12, 2007.
Wisconsin Stat. § 102.18 (3) provides, in relevant part, as follows:
"A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's decision to the party's last-known address. The commission shall dismiss any petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control . . ."
Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:
All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .
Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:
(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.
ALJ Robert's decision having been dated and mailed on June 11, 2003, the last day on which a timely petition for review could have been filed was July 2, 2003. Again, the applicant's petition for review was filed on receipt by the commission on April 25, 2007.
The commission sent the applicant a letter asking for a detailed explanation about why her petition for review was late. She responded:
"1. I was NOT notified that there was a time limit to appeal ALJ Roberts's June 11, 2003 decision.
"2. Lack of legal advice. I was dropped by my attorney on May 5, 2003...
"3. Your WC leaflet WKC-18-P (r. 12/2004) indicates that a case may be reopened in the event the conditions deteriorate....
Was the applicant's failure to file a timely petition for commission review of Roberts' 2003 decision beyond the applicant's control? The applicant does not assert that either she or her attorney failed to receive a copy of ALJ Roberts' decision, but rather that she was not notified of the deadline to appeal. However, the department routinely includes an appeals rights enclosure with the decisions it sends to parties. Moreover, however, when an injured worker receives an adverse ALJ decision, it is within his or her control to inquire with the department about an appeal. This is especially true where, as here, nearly four years have passed since the date of the ALJ's decision and the date of the appeal.
The commission considered the applicant's contention that a case may be reopened if a condition deteriorates. An occupational disease injury has no statute of limitations, so that a claim based on occupational disease may be made regardless of how much time has passed from the occupational exposure. But this is not an "occupational disease" case -- that is, an injury caused by an appreciable period of work place exposure that is a material contributory causative factor in the onset or progression of the worker's disabling condition. Rather, the claim is based on two discrete "accidental" events in 1989. Further, while the law permits ALJs and the commission to reserve jurisdiction on a claim if additional disability is expected -- again subject to the statute of limitations -- that was not done in this case.
The commission therefore concludes that the applicant has failed to establish probable good cause that her failure to file a timely appeal of ALJ Roberts' decision was beyond her control within the meaning of Wis. Stat. § 102.18 (3). The commission must therefore dismiss the petition for commission review as untimely as it relates to ALJ Roberts' June 11, 2003 decision.
2. ALJ Arnold's April 12, 2007 decision
In February 2007, the applicant filed another application for hearing. This application again lists the dates of injury as "spring and fall of 1989" and again describes the two separate incidents when passing students bumped their heads into her jaw. The insurer filed an answer to this application, asserting that ALJ Roberts had dismissed with prejudice the applicant's previous claim based on the same dates of injury. Thereafter, on April 12, 2007, ALJ Roberta Arnold issued her decision resolving the claims from the 2007 application. Noting ALJ Roberts' 2003 decision on the same claims and the statute of limitations, ALJ Arnold dismissed the 2007 application with prejudice.
The applicant's petition for review is, of course, timely as it relates to ALJ Arnold's April 2007 decision. However, having considered the petition and the positions of the parties, and having reviewed the evidence submitted at the hearing before ALJ Arnold, the commission concludes she reached the proper result. The February 2007 application attempts to relitigate the same claim raised in the March 2002 application that ALJ Roberts has previously dismissed with prejudice. Both applications describe the two incidents in the spring and fall of 1989 when passing students bumped their heads into her jaw. That claim has been finally resolved by ALJ Roberts' June 2003 dismissal order. Neither ALJ Arnold nor the commission may revisit the issue as the deadline for appealing ALJ Roberts' order is long past.
Based on its review, the commission agrees with the decision of ALJ Arnold. It adopts the findings and order in ALJ Arnold's decision as its own, except to modify her decision to delete the "Memorandum" to that decision (which appears to have been included inadvertently.)
NOW, THEREFORE, the Labor and Industry Review Commission makes this:
The petition for review is dismissed as it relates the June 11, 2003 order issued by Administrative Law Judge Andrew M. Roberts.
The findings and order of Administrative Law Judge Arnold dated April 27, 2007 are modified as set out above and, as modified, are affirmed.
Dated and mailed July 19, 2007
postri . wpr : 101 : 1 ND § 8.47 § 9.2
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Gary Roets
Attorney Steve Cotton
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