P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)






Claim No. 95024787

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter on March 17, 1994. A timely petition for commission review was filed.

The commission issued its decision in this case on September 30, 1997. By letter dated October 24, 1997, the applicant requested reconsideration in light of a "Stipulation and Order for Wis. Stats. 102.29 Distribution and Dismissal" issued in Randle Hudson v. Lifeline Transports, et al., case no. 95-CV-000756 (Wis. Cir. Ct. Milwaukee County October 18, 1996) (hereafter, the cushion order). The commission granted the applicant's request for reconsideration by order dated October 27, 1997, and set aside its September 30, 1997 decision under Wis. Stat. 102.18 (4)(b). This decision is issued in place of the September 30, 1997 decision which was set aside.

Neither party submitted formal briefs with respect to reconsideration in light of the cushion order. However, the applicant's position is set out in a letter from his attorney dated October 9, 1997, and the respondent's position is set out in a letter from its attorney dated October 31, 1997. The commission has considered the petition for review, the positions of the parties with respect to the petition, the evidence submitted at the hearing before the ALJ, and the positions of the party with respect to cushion order. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in his decision, except that it makes the following modifications:

1. After the last paragraph of the ALJ's Findings of Fact and Conclusions of Law, insert:

"The applicant's claims for permanent partial disability benefits and for temporary disability benefits for periods after December 8, 1993, are denied. On the other hand, the applicant's claim for temporary total disability benefits for the period from March 24 to June 21, 1993 (a period of 12 weeks and 4 days), is allowed. At an average weekly wage of $196 for the December 1992 injury, the applicant's weekly compensation rate for temporary total disability is $130.67. His total award for temporary disability under this order, therefore, is $1,655.11.

"However, the amounts actually payable under this order are subject to a "Stipulation and Order for Wis. Stats. 102.29 Distribution and Dismissal" issued in Randle Hudson v. Lifeline Transports, et al., case no. 95-CV-000756 (Wis. Cir. Ct. Milwaukee County, October 18, 1996) (hereafter, the cushion order). Under that order, a cushion or credit against any additional claim under the worker's compensation act was paid to the applicant in the amount of $3,954.05. The amount of additional compensation awarded hereunder does not exceed the amount of the "cushion" paid the applicant in advance under Wis. Stat. 102.29. Consequently, no amount is due the applicant.

"Because the March 24, 1993 incident, if it occurred, did not cause any compensable injury or disability and because the applicant reached a healing plateau from the December 9, 1992 work injury without residual permanent disability, this order is final."

2. Delete the ALJ's Order and substitute:

"The applications, except as they pertain to temporary disability for the period from March 24 to June 21, 1993, are dismissed. In light of the cushion order, no amount is due the applicant or his attorney."

Dated and mailed: November 13, 1997
hudsora2.wpr : 101 : 6  ND 5.17  8.45

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner


The ALJ dismissed the applications entirely. He also concluded that the March 24, 1993 falling rotor incident, if it occurred, caused no injury. With respect to the December 9, 1992 conceded injury, the ALJ concluded the applicant reached a healing plateau without permanent disability by December 9, 1993 (per IME McDevitt's opinion). Finally, he concluded that the applicant's December 1992 work injury caused only temporary disability in the amounts already paid. The commission, after carefully examining the record and conferring with the ALJ regarding witnesses credibility and demeanor, agrees with the first two of these conclusions.

Neither the reports of the medical experts nor the contemporaneous medical records tie any period of temporary disability to the March 24, 1993 date of injury. The commission notes that Dr. Boynton's narrative report of September 15, 1995 does not mention the March 1993 injury at all, and Dr. Langenkamp refers to the incident as causing only a temporary aggravation of symptoms (1) from the December 1992 injury.

Concerning the nature and extent of disability from the December 1992 injury, the commission, like the ALJ, finds the opinions of IMEs McDevitt and Stiehl more credible than those of Dr. Boynton and IME Langenkamp. On this issue, the commission notes the opinion of treating doctor Szekley that the applicant recovered from the December 9, 1992 and the alleged March 24, 1993 injuries without permanent disability. In addition, as Dr. McDevitt observed, the applicant's "shoulder instability" was first mentioned by Dr. Boynton in April 1995. Since this was the primary problem addressed by the capsular shift surgery he performed (and after which he rated permanent disability), one may reasonably conclude that it was unrelated to the motor vehicle accident occurring two and a half years earlier.

The commission also notes the applicant's statement that he was "pain-free" for six weeks starting in June 1993, and indeed was well enough to play football in the fall of 1994. Standing alone, the applicant's apparent recovery in June 1993 and his physical activity thereafter may not be a sufficient basis to reject the applicant's claim, Leist v. LIRC, 183 Wis. 2d 450, 458-61 (1994), but they certainly enhance the credibility of the opinions of IMEs McDevitt and Stiehl. In sum, the commission agrees the applicant reached a plateau of healing from the December 1992 work injury on December 9, 1993, and sustained neither temporary disability nor permanent partial disability from that injury or the alleged March 1993 work injury thereafter.

However, while the March 24, 1993 falling rotor incident did not cause compensable disability, the applicant's evidence that he was disabled from March 24 to June 21, 1993, is unrebutted. Indeed, IME Stiehl stated the applicant continued healing from the December 9, 1992 injury until June 21, 1993, while IME McDevitt put the healing plateau from the December 1992 injury six months later in December 1993. Consequently, the applicant remained temporarily totally disabled from the December 1992 injury for the period from March 24 to June 21, 1993, and the commission amended the ALJ's order on that issue. As best as the commission can tell, however, none of the disputed treatment expenses were incurred before December 9, 1993, the date by which the applicant reached a plateau of healing without disability, so no additional medical expenses are ordered.

NOTE: On reconsideration, the applicant's position is that the cushion order was part of the hearing record, and that the commission's September 30, 1997 order directing the payment of compensation considered the cushion order but nonetheless ordered the payment of compensation. The respondent's position is that the effect of the commission's order is a question of law which does not require reconsideration by the commission; that the applicant has essentially requested the commission to issue, inappropriately, a "legal opinion" on that issue; and that no additional compensation is due the applicant under the cushion order and the commission's decision on the merits.

The commission's practice is to issue findings and orders which reflect circuit court "cushion" orders when it is aware of such orders. See for example, Ann Marie Bomberg v. MML Health Services, et al., WC case nos. 89076062 and 93004526 (LIRC, July 30, 1996). In this case, however, the cushion order was not one of the exhibits at the hearing. Nor does it appear from the commission's review of the hearing transcript that either testimony or a stipulation was offered with respect to the terms of the cushion order. In any event, the commission's September 30, 1997 did not take into account the cushion order.

There is no dispute about the authenticity of the copy of the cushion order provided by the applicant after the hearing. The commission therefore has reconsidered its decision in light of the cushion order as the applicant requested. The commission modified the prior findings and order accordingly.




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(1)( Back ) See Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1968) and Joseph Schlitz Brewing Co., v. DILHR, 67 Wis. 2d 185 (1975).