LEI JERRY, Applicant
KWIK TRIP INC, Employer
KWIK TRIP INC, Insurer
Kwik Trip, Inc. and Sentry Insurance (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 22, 2007. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained a low back injury arising out of and in the course of her employment with the employer on or about November 25, 2004, and if so, 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:
Delete the administrative law judge's findings regarding temporary total disability that begin in the middle of the 14th line from the top of page 9 of his decision, and continue through the 22nd line from the top of that same page.
Delete the final two paragraphs of page 9 of the administrative law judge's decision and substitute the following paragraphs therefor:
The issue of temporary disability subsequent to the date of February 5, 2005, remains unresolved. Jurisdiction will be reserved with respect to that issue.
Reasonably required medical expenses were set forth in Applicant's Exhibits J, S, and T. Additional medical expense claims were set forth in Applicant's Exhibit B. It is unclear whether some of the expenses claimed in Exhibit B are duplicative of expenses claimed in the other exhibits, whether all the expense claims in Exhibit B are still being made, and whether reimbursement is due to Medicare. Therefore, the order will also be left interlocutory with respect to the expenses claimed in Exhibit B, as well as with respect to future medical expense. The expenses claimed in Exhibits J, S, and T will be ordered paid.
Jurisdiction will also be reserved with respect to the possibility of additional medical treatment and/or disability attributable to the work injury of November 25, 2004.
Delete the administrative law judge's ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.
Now, therefore, this
The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, respondents Kwik Trip, Inc. and Sentry Insurance Company shall pay to North Memorial Ambulance Service of Brooklyn Center, Minnesota the sum of One hundred forty-five dollars and forty cents ($145.40); to Lake View Medical Center of Rice Lake, Wisconsin the sum of Two thousand eight hundred twenty-seven dollars and seventy-six cents ($2,827.76); to Midwest Medical Equipment of Duluth, Minnesota the sum of Eighteen dollars and seventy-five cents ($18.75); to Lake View Memorial Hospital of Stillwater, Minnesota the sum of Nine hundred fifty-two dollars ($952.00); to Valley Anesthesiology Consultants of Plymouth, Minnesota the sum of Thirty-three dollars and seven cents ($33.07); and to the applicant as reimbursement for prescription medical expense the sum of One hundred eighteen dollars and fifteen cents ($118.15).
Jurisdiction is reserved for such further findings and orders as may be necessary to address the unresolved issues detailed above.
Dated and mailed April 28, 2008
jerryle . wrr : 185 : 9 ND §§ 8.30; 8.35
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondents first assert that a new hearing should have been held in this matter due to ALJ O'Connor's resignation from the department. Respondents cite Wis. Stat. § § 102.18(1)(a) and 102.18(1)(c), as well as alleged due process concerns in support of this argument.
As stated in Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617, 583 N.W.2d 662 (Ct. App. 1998):
"Where credibility of witnesses is at issue, it is a denial of due process if the administrative agency making a fact determination does not have the benefit of the findings, conclusions, and impressions of the testimony of each hearing officer who conducted any part of the hearing." (citations omitted)
The department did have the benefit of ALJ O'Connor's findings, conclusions, and impressions of the credibility of the hearing witnesses. ALJ O'Connor provided these credibility impressions in a written summary provided to the department and entered into the record. ALJ Ezalarab fully considered these credibility impressions in reaching his decision, which involves detailed findings and conclusions made in accordance with Wis. Stat. § 102.18(1)(a). With the modifications made above, the commission affirmed these findings.
Wis. Stat. § 102.18(1)(c), is inapplicable to this case, because that statute addresses the circumstance in which two or more ALJs have each conducted hearings on a claim. In the case at hand, ALJ O'Connor was the only ALJ who conducted a hearing. Notably, the second two sentences of Wis. Stat. § 102.18(1)(c), provide that where two or more ALJs have each held hearings and cannot agree on a decision, a tie-breaker ALJ will be appointed to make the final decision, but only after he/she has consulted with the other ALJs to receive their credibility impressions. Thus, the statute endorses the procedure of a final decision maker, who has not held a hearing in a claim, making his or her decision based on a record which includes the credibility impressions of the ALJs who did hold hearings. This is precisely what ALJ Ezalarab did in making a decision based on a record that included ALJ O'Connor's credibility impressions. ALJ Ezalarab was able to review all the evidence ALJ O'Connor would have reviewed, with the exception of any firsthand credibility impressions of the hearing witnesses. ALJ O'Connor's written summary of those impressions satisfies this due process requirement.(1) All the other elements of due process were fully satisfied by the two hearings held in this matter, together with the opportunities for briefing.
Respondents also assert that ALJ O'Connor was not acting in his statutory capacity as an ALJ when he wrote his credibility impressions, and those impressions should therefore not be received. No precedent is cited in support of this argument which the commission rejects. O'Connor was acting in his statutory capacity as an ALJ when he wrote down his credibility impressions of the witnesses. Respondents' allegations of possible bias because O'Connor had begun the private practice of law are completely unfounded and unsupported.
Next, respondents assert that ALJ Ezalarab's decision and the entire record should be discarded because no decision was issued in the matter within 90 days from the date of the final hearing held on April 19, 2007.(2) ALJ O'Connor's resignation caused the delay in issuance of the decision in this case. While that delay was regrettable, the commission has found that the 90-day deadline in the statute is directory rather than mandatory, and that no action will be taken based on the department's failure to comply with the deadline.(3)
In considering the "directory versus mandatory" question, the supreme court has indicated that two relevant considerations are the failure of the legislature to provide a penalty for noncompliance of the statute in question (indicating a directory interpretation) and the apparent intent of the statute. State v. Perry, 181 Wis. 2d 43, 53-54 (1993) See also T.H. v. LaCrosse County, 147 Wis. 2d 22, 26 (Ct. App., 1988) (Citing State v. Industrial Commission, 233 Wis. 461, 466 (1940). Here, no penalty is set for noncompliance with Wis. Stat. § 102.18(1)(b), and the apparent purpose of the 90-day rule (to hasten issuance of decisions) is not served by delaying further with a remand.
The commission's review of the record led it to agree with ALJ Ezalarab that the credible inference is that the work incident did occur as described by the applicant, and that Dr. Rieser credibly opined that the incident precipitated, aggravated, and accelerated the applicant's preexisting degenerative lumbar condition beyond normal progression. There were inconsistencies or lapses of memory in virtually all of the witnesses' testimonies, but the applicant's testimony describing when and how the work incident occurred, as well as Brenda Lang's testimony describing the applicant's back complaints when she saw her in the early morning hours of November 26, 2004, were particularly credible.
The commission left the order interlocutory with respect to temporary disability subsequent to February 5, 2005, because the record and the positions of the parties are unclear with respect to that issue. At the beginning of the hearing held on January 23, 2007, the applicant's attorney indicated to ALJ O'Connor that temporary total disability was being claimed from November 29, 2004 to January 15, 2007. In his decision of October 22, 2007, ALJ Ezalarab ordered temporary partial disability from November 28, 2004 to February 20, 2005, and temporary total disability from February 21, 2005 to January 15, 2007. Presumably, this was done in response to the claim made to ALJ O'Connor on January 23, 2007. However, in their briefs to the commission, the applicant and the respondents agree that certain temporary disability compensation ordered paid by ALJ Ezalarab was not being claimed in this proceeding (there appears to be disagreement over which compensation was not being claimed). Given all this confusion, the commission concluded that its decision should be left interlocutory with respect to the issue of temporary disability, and should be resolved between the parties if possible. If dispute remains regarding this issue then it will be resolved with further hearing.
Finally, the commission notes additional confusion with regard to the medical expense claims, which include claims found at Applicant's Exhibits B, J, S, and T. ALJ Ezalarab gave no explanation for awarding payment of the expenses in the latter three exhibits, but not those claimed in Exhibit B. It appears that some, but certainly not all, of the expenses claimed in Exhibit B may be duplicative of those found in the other exhibits. Additionally, there appear to be claims for reimbursement to Medicare that should be properly documented and presented. For these reasons the order is also interlocutory with respect to medical expense beyond that ordered paid.
cc:
Attorney Curtiss N. Lein
Attorney Leslie Altman
Appealed to Circuit Court.
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