SHELLY R WASMUND, Applicant
ROCK-TENN CO, Employer
LUMBERMENS MUTUAL CAS CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed September 8, 2009
wasmush : 175 : 5 ND 5.46
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant sustained a work-related injury and is entitled to benefits, including the prospective surgery she seeks. The employer contends the commission does not have the authority to order the payment of prospective medical treatment under Wis. Stat. § 102.18(1)(b) on cases involving dates of injury prior to January 1, 2002, the effective date of the amendment authorizes such orders. The applicant was injured at work on December 11, 2001, when she tripped and fell backwards landing on a steel platform and striking her upper left buttock.
The employer contends the commission does not have authority to retroactively apply the amendments to Wis. Stat. § 102.18(1)(b) without violating the statutory and constitutional rights of the employer. To the extent the employer asserts a violation of its constitutional rights, the commission lacks the authority to address such issues. The administrative law judge appropriately noted that prior decisions indicate that Wis. Stat. § 102.18(1)(b) allows prospective orders for medical treatment to be retroactive. In Jenkins v. Cashen Moving and Storage Co., Inc. (Comm. Dec. December 19, 2003), the commission noted a similar issue that the applicant's injury occurred on October 25, 2001, and the employer asserted in the Cashen case that the new statutory provision to Wis. Stat. § 102.18(1)(b) does not apply since the statute was not effective until after the applicant's injury.
The commission found in the Cashen case that under Wis. Stat. § 102.03(4) the right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect. The commission found that the change to Wis. Stat. § 102.18(1)(b) did not change the right to compensation or the amount of compensation. Reasonable and necessary medical expenses have always been, and continue to be, compensable. The changes to Wis. Stat. § 102.18(1)(b) merely alter when and how these expenses may be ordered paid. The commission held in the Cashen case that the provisions of Wis. Stat. § 102.18(1)(b) may be applied to injuries and subsequent medical expenses incurred in relation to an injury which occurred in 2001. There has been no reason put forth or found to reverse the commission's findings in the Cashen case. Therefore, the administrative law judge appropriately found the applicant sustained a work-related injury and is entitled to benefits including the prospective surgery she seeks for her work-related injury in December 2001.
Attorney Ronald Bornstein
Attorney Robert P. Ochowicz
Appealed to Circuit Court. Affirmed June 7, 2010. Appealed to
the Court of Appeals. Affirmed
Rock Tenn Company and Lumbermens
Mutual Casualty Company v. LIRC and Wasmund, 2011 WI App 93, 334
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