LEROY JARCHOW, Applicant
FRIDAY CANNING CORP, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
An administrative law judge (ALJ) of the Worker's Compensation Division of the Department of Workforce Development issued an order in this matter on March 9, 2009, whereby the ALJ dismissed the application without prejudice, and found that a new application could not be filed unless accompanied by a WKC-16-B medical report supporting the applicant's claim relative to his left knee injury of September 13, 1978.
The applicant underwent a compensable left total knee replacement in 1988, and the last payment of compensation to him took place on September 26, 1996, which meant that the ten-year statute of limitations expired on September 26, 2006.(1)
The applicant filed an application on May 5, 2006, prior to the expiration of the statute of limitations, alleging that his artificial knee parts are wearing out and that he needs additional surgery. Respondents have resisted this claim, and the applicant has failed to file medical evidence in support of it. After the department sent warning letters to the applicant regarding this failure, the ALJ issued the order dated March 9, 2009. The applicant submitted a letter to the department alleging that he cannot obtain medical support for his claim because he cannot afford to see his doctor, and because the respondents will not pay for a medical examination.
Even though the ALJ's dismissal order was issued "without prejudice," it had the effect of a final dismissal in this case, because the statute of limitations had expired, and therefore no new application could be filed. In such circumstances, the department's routine policy is to issue an interlocutory order, or to refrain from issuing any order until the applicant has been given additional opportunity to obtain the needed medical support. It is inferred that the ALJ would have followed this policy had he taken cognizance of the fact that the statute of limitations had expired. It is clear from the issuance of a "without prejudice" order that the ALJ mistakenly believed he was issuing a non-final order.
Wis. Stat. § 102.18(4)(c), provides:
(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and after further consideration, do any of the following:
1. Affirm, reverse or modify, in whole or in part, the order or award.
2. Reinstate the previous order or award.
3. Remand the case to the department for further proceedings.
Respondents argue that because the ALJ's order was "without prejudice," it was not a "final order", and therefore Wis. Stat. § 102.18(4)(c), is not applicable. This argument is based on a misapplication of the statutory language that ignores the legal effect of the ALJ's order.
In American Motors Corp. v. Industrial Commission, 26 Wis. 2d 165, 172-73, 132 NW 2d 238 (1965), the court stated:
"Neither the commission nor the court should deprive workers of the rights given to them by law because of the inapt or incomplete phraseology used by a busy and harassed examiner in his written Findings of Fact and Order."
While American Motors Corp. involved the question of what issues were left open in an interlocutory order, the case's emphasis on the determinative importance of the ALJ's intent is applicable to the case at hand. Although not intended to be, the ALJ's order was a final order, because by operation of law its issuance precluded any further claim by the applicant. The "without prejudice" label was meaningless in this circumstance, and as issued, the order was final and was a mistake.
Accordingly, the commission makes the following:
The commission hereby assumes jurisdiction over this matter pursuant to its authority under Wis. Stat. § 102.18(4)(c), and sets aside the ALJ's order issued on March 9, 2009. The applicant shall be allowed 120 days from this date to obtain medical support for his ongoing left knee claim, and to submit that support, together with a new application for hearing, to the department. Upon such submission, the department shall assume jurisdiction over the claim.
Respondents are cautioned that because the left knee injury was originally conceded and paid, if they resist paying for the updated examination of the knee by the applicant's chosen physician, they must do so only on the basis of a medical opinion that provides reasonable basis for denial of such payment. If within 120 days from this date, the applicant fails to submit new medical support and submit a new application to the department, respondents shall contact the commission and request a final order in the matter. Should the applicant's examination be unduly delayed due to controversy over payment for such examination, the 120-day period may be extended.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed May 28, 2009
jarchle : 185 : 5 ND 8.33; 8.47
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney James O Moermond
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