STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JACK BRADLEY, Applicant

SILVER CREEK LUMBER INC, Employer

BAY TOWN TIRE CTR, Employer

HARTFORD ACCIDENT & INDEMNITY CO, Insurer

INTEGRITY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1993-019623


On May 2008, the applicant filed an application seeking compensation for right hip, low back and left leg pain based on an October 2007 injury while employed at Baytown Tire Center. The applicant later impleaded Silver Creek Lumber, Inc., based on a March 3, 1993 date of injury.

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter December 2, 2009 and September 14, 2011. In dispute was the nature and extent of disability, and liability for medical expense.

On October 31, 2011, the ALJ issued his decision dismissing the application as to both employers. The department received the applicant's petition for review by mail on November 22, 2011. There are two main issues before the commission: (1) the timeliness of the applicant's petition for review, and (2) the merits of the applicant's claim for disability compensation.

On these issues, the Labor and Industry Commission makes these

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

1. Timeliness.

Wisconsin Stat. § 102.18(3) provides, in relevant part, as follows:

A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's decision to the party's last-known address. The commission shall dismiss any 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 . . .

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

1.025 Petitions for review; filing. (1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.
(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.
(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. Except in the case of a petition for review in fair employment and public accommodations cases under s. 106.52 or s. 111.39(5) Stats., where a facsimile transmission filed after the regular business hours of the equal rights division shall be considered filed on the next business day, a petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition. If the commission's or department's records indicate receipt of the facsimile at a date later than that shown, then the later date shall control.

Wisconsin Admin. Code § LIRC 3.01 provides, in relevant part, as follows:

3.01 Petitions for review; where filed. A petition for commission review of the findings or order of a department administrative law judge under s. 102.18, Stats., shall be filed with any of the following:
(1) The worker's compensation division of the department, at any of the following locations:
(a) 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 (FAX: 608-267-0394).
(b) 819 North Sixth Street, Milwaukee, Wisconsin 53203 (FAX: 414-227-4012).
(c) 1500 North Casaloma Drive, Suite 310, Appleton, Wisconsin 54915 (FAX: 920-832-5355).
(2) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: 608-267-4409).
In this case, the worker's compensation division received the applicant's mailed petition on November 22, 2011, one day after the end of the 21-day appeal period beginning with the mailing of the ALJ's decision on October 31, 2011. The applicant's petition refers to a faxed copy of the petition being sent to (608) 267-0394, which is the correct fax number for the worker's compensation division. However, the division informs the commission that it did not receive the fax.

In response to a "Reasons for Late" inquiry from LIRC, the applicant's attorney forwarded to the commission a copy of a fax document indicating the transmission went "OK" to destination address (608) 267-0394 on November 18 at 3:46 p.m. Further, the mailed petition that the worker's compensation division received on November 22 was also dated and postmarked on November 18.

Under these circumstances, the commission finds it credible that the applicant's attorney not only mailed the petition to the division on November 18, but also faxed it to the telephone number shown on the document, indicating a successful facsimile transmission. It is true that the commission and department are not responsible for fax transmission errors, Wis. Admin. Code § LIRC 1.025, but in this case that does not compel dismissal.

The statutory standard for an untimely appeal is whether the petition is late for reason beyond the petitioner's control. Wis. Stat. § 102.18(3). The applicant's attorney has met this standard in this case. He mailed the petition three days in advance of its due date on November 18, 2011. In addition, he sent the document by facsimile transmission, and was given notice that the facsimile transmission went through "OK."

The commission therefore finds that the petitioner has shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 102.18(3). The commission shall proceed to the merits of the case.


2. Merits of the claim under Wis. Stat. § 102.35(3).

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 modifications:

1. Wherever in the ALJ's decision the words "Silver Creek Lumbar" appear, substitute "Silver Creek Lumber."

ORDER

The petition for review is accepted. The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed
May 30, 2012
bradlja : 101 : 5 ND6

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The applicant contends he sustained permanent partial disability due to an injury to his back and hip. He contends his injury is due in part to a distal left tibia and fibula fracture occurring during his employment with Silver Creek Lumber in February 1993, and in part due to a lifting injury while employed with Bay Town Tire on October 19, 2007. However, as explained by the ALJ, the applicant has substantial documented treatment for his lumbar spine beginning in 2002--well after his injury in February 1993 and well before his injury in October 2007--which required considerable treatment including the prescription of narcotic pain medication. Having carefully reviewed the record and the hearing transcripts, the commission adopts the ALJ's firsthand credibility impressions and agrees that the medical opinions of Drs. Barron and O'Brien are most credible on the issue of causation.

 

cc: Attorney Curtiss Lein
Attorney Patrick Mitchell
Attorney Melissa Kirschner


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