SHELDONNA MOLZAHN, Applicant

THOMAS O MULLIGAN, Employer

WILSON MUTUAL INS CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision on November 4, 2009. Accordingly, the last day of the 21-day appeal period under Wis. Stat. § 102.18(3) was Tuesday, November 25, 2009.

The applicant's attorney shipped his petition for commission review to the Worker's Compensation Division in Madison via "UPS NEXT DAY AIR" on November 23, 2009. However, the department did not receive the petition until November 30, 2009.

In worker's compensation cases, the date of physical receipt, not the date of postmark or mailing, is controlling. See Wis. Admin. Code § LIRC 1.025. Further, under Wis. Stat. § 102.18(3):

The commission shall dismiss a petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control.

The commission concludes the applicant has shown probable good cause that the reason for failure to timely file her petition for commission review was beyond her control. In this case, the applicant's attorney's secretary addressed the UPS envelope as follows:

State of Wisconsin
Worker's Compensation Division
201 E. Washington Avenue
Madison, WI 53707

The applicant's attorney used the form WKC-28 "Petition for Review" in this case. The address given by the department in its form WKC-28 petition is:

Worker's Compensation Division
201 E. Washington Ave.
P.O. Box 7901
Madison, WI 53707

The address given on the form WKC-28 petition is address for delivery to the Worker's Compensation Division's post office box, notwithstanding the fact the street address is included. The address and ZIP code that would be used if the postal service were to deliver a letter directly to the building housing the Worker's Compensation Division at 201 East Washington Avenue is:

201 E. Washington Ave
Madison, WI 53703

The difference in ZIP codes evidently caused the delay here. Although the applicant's attorney's secretary originally addressed the UPS box in which the petition was shipped with 53707 ZIP code, the box was not delivered until after a subsequently-added "Ship To" label which included the correct 53703 ZIP code.

As noted above, the department's form WKC-28 petition lists both the Worker's Compensation Division street address and its post office box address using a 53707 ZIP code. The applicant provided the correct street address for the Worker's Compensation Division in Madison on the envelope it timely provided to a private courier for overnight delivery. Given this and the facts outlined above, the applicant has shown probable good cause beyond her control for the late petition. The commission shall accordingly accept the petition and proceed to the merits.

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, except that it makes the following modification:

1. Delete the final sentence of the second paragraph of the ALJ's findings of fact and substitute:

"The Administrative Law Judge credited the applicant's testimony regarding this incident and these symptoms."

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 10, 2010
molzash . wsd : 101 : 1 ND6 10.2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The ALJ believed the applicant's testimony that, on December 23, 2002, she felt a sharp pain in her neck when she slipped while carrying legal files, dropping the files, and moving her body in a funny way in an attempt to catch the files. However, he credited the opinion of the Dr. Lemon, the examining doctor retained by the employer and insurer (collectively, the respondent), that the applicant's injury of December 23, 2002 caused at most a minor cervical strain which healed without permanent disability by March 23, 2003.

The ALJ's decision carefully and thoroughly explains why he credited the opinion of the Dr. Lemon over those of the treating doctors. He noted that the medical treatment notes, as well as some of the reports from treating doctors stating expert opinion, contained inaccurate descriptions of the work injury. He noted, too, that January 21, 2003 note of chiropractor Stanford reported only "intermittent" pain for a few weeks after the injury, and that chiropractor Kari's March 5, 2003 note reported symptoms for only a few days after the December 23, 2003 incident which did not return until the applicant attended hardware shows with her husband almost a month later.

The applicant's attorney suggests the inaccuracies in the history, some of which occur in patient questionnaires the applicant herself recorded, are not material to the issue of causation in this case. However, while the ALJ did credit the applicant's testimony about the events of December 23, 2002, the subsequent inaccurate histories undercut her claim for continuing disability and an injury more severe than the minor cervical sprain diagnosed by Dr. Lemon.

cc: Attorney Curtiss N. Lein
Attorney David Piehler

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