JOSEPH J LENZ, Applicant

CABELA'S INC, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 17, 2008. Cabela's, Inc. and Sentry Insurance Company (Respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue before the commission is the applicant's claim for a traumatic left shoulder injury arising out of and in the course of his employment with the employer on July 15, 2007.

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 second, third, and fourth full paragraphs on page 8 of the administrative law judge's decision and substitute the following paragraph therefor:

"Dr. Grossman credibly opined that the applicant did not sustain any injury to his left shoulder in the work incident of July 15, 2007. The applicant did not complain of left shoulder difficulty between that incident and the date of August 30, 2007, when he saw a medical provider and complained of "...increasing flares of his pain for the last 2-3 weeks...without any recent injury."

A 2002 left shoulder injury sustained at a previous employer was mentioned to the provider, but nothing concerning the incident of July 15, 2007. In his written report of the work incident completed on July 22, 2007, the applicant described injury to his right knee, but did not describe any injury to his shoulder. When seen by a physician's assistant on July 25, 2007, the applicant again failed to mention any shoulder problem. Dr. Grossman's opinion that the applicant has experienced a manifestation of his preexisting degenerative left shoulder condition, unrelated to the work incident of July 15, 2007, is credible.

The rest and remainder of the administrative law judge's Findings are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this:

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application for a traumatic left shoulder injury occurring on July 15, 2007, is dismissed.

Dated and mailed July 9, 2009
filnam : 185:5 ND 8.47

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The applicant asserted in his petition that the administrative law judge's decision should be set aside, and the matter scheduled for new hearing pursuant to Wis. Stat. § 102.18(5), which provides:

"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."

In support of the applicant's assertion, he has submitted an additional medical opinion from Dr. Docter, obtained subsequent to the issuance of the administrative law judge's decision. In this new opinion, Dr. Docter answered several written questions submitted to him by the applicant's attorney, and rejected his own prior opinion of a traumatic left shoulder injury. Dr. Docter opined instead that the applicant had sustained an occupational left shoulder injury, and apportioned liability for such occupational shoulder injury between the employer and a previous employer. No specific date or dates of injury were proffered for this alleged occupational injury.

The applicant's claim brought before the department was for a traumatic injury to his left shoulder, with an alleged date of injury on July 15, 2007. No occupational injury claim was noticed for hearing, and the commission is in agreement with the administrative law judge's finding that no traumatic left shoulder injury occurred in the work incident of July 15, 2007. Accordingly, no mistake has been made with regard to the claimed injury, and Wis. Stat. § 102.18(5), is not applicable to such claim.

The commission deleted the administrative law judge's reference to Dr. Grossman's comments regarding the type of work the applicant performed for the employer, as well as the administrative law judge's overly-broad finding that the applicant did not sustain any injury to his left shoulder arising out of and in the course of employment with the employer. The only claim adjudicated in this proceeding was the claim for a traumatic left shoulder injury allegedly occurring on July 15, 2007. That claim is dismissed. The applicant is not precluded from submitting a claim for an occupational shoulder injury with another date of injury, assuming he has medical support for such a claim. Of course, the commission takes no position with regard to whether or not such claim would be successful.

cc: Attorney Ronald N. Walker
Attorney James Goonan

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