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

GUADALUP BEJAR-VERBETEN, Applicant

AMERICAN MOTORS CORP, Employer

AMERICAN MOTORS CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1992017303

A hearing was held in this matter before an administrative law judge (ALJ) for the Workers Compensation Division of the Department of Workforce Development on August 4, 1997. The employer and insurer (collectively, the respondent) conceded jurisdictional facts and a wage resulting in the maximum compensation rates. The issues before the ALJ were whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment and, if so, the nature and extent of disability from that injury.

On January 9, 1998, the ALJ issued his Findings of Fact and Interlocutory Order deciding the issues substantially in favor of the applicant. The last day for filing a timely petition for commission review of the ALJ's Findings and Order was January 30, 1998. The respondent filed a petition for review which the Workers Compensation Division stamped as "received" on February 2, 1998.

Now before the commission are the issues that were in dispute before the ALJ, as well as the preliminary procedural question of whether the respondent has shown probable good cause that its petition was late for a reason beyond its control.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, and after consulting with the ALJ concerning witness credibility and demeanor, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Timeliness of petition.

The first issue in this case is whether the commission may consider the respondent's petition for commission review. Wisconsin Statutes § 102.18(3) provides in part:

"(3) 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 findings and order to the party's last-known address. The commission shall dismiss a petition which is not timely filed unless the petition shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. If no petition is filed within 21 days from the date that a copy of the findings or order of the examiner is mailed to the last-known address of the parties in interest, the findings or order shall be considered final unless set aside, reversed or modified by the examiner within that time."

As noted above, the ALJ's Findings of Fact and Interlocutory Order were issued on January 9, 1998, so the last day to file a timely petition for commission review was January 30, 1998. The respondent's petition for commission review was stamped as received by the Workers Compensation Division (the division) after that date on February 2, 1998. Consequently, the commission must dismiss the respondent's petition unless the respondent shows probable good cause that the reason for the failure to timely file was beyond its control.

The respondent has made that showing in this case. The file indicates that the petition was mailed to the division in an envelope bearing a private meter mark dated January 27, 1998; the meter mark was not "overstamped" by the postal service as being placed in the stream of mail on a later date; the applicant received (and answered) her copy of the petition by January 30, 1998; and the respondent's attorney represented that the applicant's copy and the division's copy were mailed the same day. The commission appreciates that the respondent's attorney and the applicant's attorney are both located in Milwaukee, while the petition was sent to the division's address in Madison. Nonetheless, the commission must conclude that the reason the petition for review was not stamped as received by the division on or before January 30, 1998 was beyond the respondent's control.

2. Merits of case.

The next issue is whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment and, if so, the nature and extent of disability from that injury.

On January 17, 1991, the applicant fell three steps from a ladder at work. She testified she experienced excruciating pain in her left foot, and treated initially with a TENS unit.

However, the record does not contain treatment notes from 1991, other than a summary of treatment by the employer's independent medical examiner, James B. Stiehl, M.D. Dr. Stiehl reports that several sets of x-rays were performed in 1991. According to Dr. Stiehl, the x-rays were either negative or showed spurs, though x-rays done in June 1991 showed a possible avulsion fracture of the left cuboid.

The applicant eventually came under the care of a podiatrist, Richard L. Hecker, D.P.M., in September 1993. Dr. Hecker's note for September 15, 1993, states that he evaluated the applicant from the standpoint of navicular cuneiform articulation of the left foot following the applicant's involvement in a car accident.

Dr. Hecker reported that imaging studies, including x-rays and a CT scan, showed degenerative arthritis to the navicular cuneiform joint with dorsal spurring, as well as hypertrophic degenerative changes with spurring and narrowing of the navicular cuneiform joint spaces. Exhibit A, notes of September 15 and 29, 1993. He also noted "multiple digital procedures on both feet with an implant evidently placed by Dr. Lapow in the past on the right foot."

When the applicant continued to experience pain through the spring of 1994, Dr. Hecker scheduled and performed a fusion of the navicular cuneiform articulation of the left foot. Subsequently, an irritable fixation device was removed in an out- patient procedure. Thereafter, the applicant continued to treat with Dr. Hecker, who noted numerous problems with both feet.

To prove how the accidental event of January 17, 1991 caused her disability and to establish the extent of her disability, the applicant offers Dr. Hecker's expert medical opinion on a practitioner's report form WC-16B. Exhibit A. The form lists January 17, 1991 as the date of injury. The form (at item 4) refers to attached notes for an explanation of the accidental event or work exposure to which the applicant attributed her condition. It likewise refers to attached notes for a complete description of physical disability and diagnosis. The doctor opined that the event described in "item 4" directly caused the applicant's disability.

Dr. Hecker also stated in the report that he treated the applicant from September 1994 to November 1996, that her disability from work began in May 1994, that she could return to light duty in August 1996, and that she had a 20 percent permanent partial disability of the left extremity due to limitation of motion, pain and swelling.

The respondent offers the report of Dr. Stiehl. He reported that, at the time of the January 17, 1991 injury, the applicant was diagnosed with significant degenerative arthritis of the midfoot. He noted the right foot had similar changes. Dr. Stiehl opined the applicant most likely had a fairly advanced pre-existing degenerative condition and that the injury of January 17, 1991 was merely an aggravation of that condition. He also opined that the January 17, 1991 injury was not a significant causative factor in the degenerative condition, but most likely caused a temporary flare-up after which the applicant returned to her prior status. He concluded that the surgery performed by Dr. Hecker in 1994 was related the applicant's long standing degenerative arthritis in her left foot rather than the incident of January 17, 1991.

The commission finds Dr. Stiehl's expert medical opinion the more credible of the two offered in evidence. Unlike Dr. Hecker, Dr. Stiehl considered medical records going back to the time of injury. Further, Dr. Stiehl's opinion seems to better reconcile the presence of the pre-exiting degenerative arthritis in both feet. Finally, while Dr. Hecker's practitioner report refers to his notes for a description of the applicant's work injury, the only description of any traumatic injury in those notes is a reference to a motor vehicle accident which the applicant denies occurred. Dr. Hecker's notes do not refer to the January 17, 1991 work injury, so one must question whether the doctor actually meant to assign the injury a causal role. In sum, the commission concludes that the January 17, 1991 incident at work caused nothing more than a brief, non-disabling flare-up of applicant's underlying degenerative arthritic condition.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed: August 25, 1998
bejargu.wrr : 101 : 8  ND § 5.18  § 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness whom he believed was incapable of shading the truth. The commission does not in any respect dispute the applicant's credibility. However, for the reasons set out above, it found the expert opinion of Dr. Stiehl more credible than Dr. Hecker.

cc: ATTORNEY ANGELA M VAN BOXTEL
SHNEIDMAN MYERS

ATTORNEY RHONDA B DEVORKIN
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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