TAMARA S BUSSE, Applicant

NORCO WINDOWS INC, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, 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 July 28, 2009. Norco Windows, Inc. and Employers Insurance of Wausau (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is the applicant's claim for one day of temporary total disability on November 13, 2008.

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 sentence of the administrative law judge's FINDINGS OF FACT.

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

NOW, THEREFORE, this

The administrative law judge's FINDINGS OF FACT are modified to conform with the foregoing, and as modified, are affirmed. The administrative law judge's ORDER that dismissed the application for temporary total disability for November 13, 2008, is affirmed.

Dated and mailed June 23, 2010
busseta : 185 : 5 ND ? 5.2

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The administrative law judge properly excluded Dr. Cragg's medical note dated July 14, 2009, because it was not timely submitted pursuant to Wis. Stat. § 102.17(1)(d)3., and because it was not certified pursuant to Wis. Stat. § 102.17(1)(d)1. However, even had the note been admissible, it does not indicate the applicant was physically disabled from work on November 13, 2008. Dr. Cragg indicated in the note that it was reasonable and appropriate for the applicant to have missed work to treat with him on that date, and such treatment may very well have been medically appropriate. However, individuals who receive medical treatment are not always at the same time physically disabled from work, and the applicant did not demonstrate that she was physically disabled from work on November 13, 2008. In fact, the applicant's claim has never been that she was physically unable to work on November 13, 2008. Rather, her claim has been that it was impractical for her to work that day, given the distances between her home, Dr. Cragg's office, and the employer's plant.

Pursuant to Wis. Stat. § 102.43, temporary disability is payable if an injury causes "disability." Disability does not include isolated medical treatment, even though that treatment may be reasonably required by the effects of the work injury, if the treatment is not coincident with an actual physical incapacity to work. See Virginia Surety Company, Inc. v. LIRC, 2002 WI App. 277, 17, 258 Wis. 2d 665, 680, 654 N.W.2d 306.

While the commission is not unsympathetic to the practical difficulties the applicant faced in balancing her work attendance with her receipt of medical treatment from Dr. Cragg, there must be an actual physical incapacity to work before payment of temporary disability is authorized. The applicant failed to submit evidence to support such incapacity as having occurred on November 13, 2008.

cc: Attorney Patrick G. Heaney
Attorney Jessica Almazar

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