STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
TIMOTHY WIESE, Applicant
ERIC NELSON PAINTING, Employer
REGENT INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997031610
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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.
ORDER
The findings and order of the administrative law judge are affirmed.
Dated and mailed May 28, 1999
wieseti.wsd : 101 : 5 ND § 8.47
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The applicant was in an automobile accident while working in 1992. He contends that the accident caused the onset of neck pain, leading ultimately to a cervical fusion. He then re-injured his neck, resulting in failure of the fusion, in an off- duty accident in 1994. (1) It was not until 1997 that the applicant filed an application for hearing. Meanwhile, the applicant settled a third-party action with the driver of the other car in the 1992 injury, and obtained a jury verdict and damages from the driver of the other car in the 1994 injury.
This case poses several issues: (a) is the claim barred entirely by the failure to report the injury or file a claim sooner? (b) is the applicant's disability and need for treatment related to the 1992 on-duty car accident, and to what extent? and (c) what is the effect of the third party settlement and judgment, which the WC insurer did not participate in?
The ALJ awarded temporary disability to the date in August 1992 when Dr. Anderson opined that permanent restrictions could be set. The ALJ also concluded that the applicant had no permanent disability from the May 1992 work injury. In this respect, he credited the report of the respondent's medical examiner, Dr. Grossman, who opined the May 1992 car accident temporarily aggravated a pre-existing degenerative condition. Further, the ALJ did not order any benefits paid until the third-party settlement of the first car accident could be approved, and the "cushion" set, under Wis. Stat. § 102.29.
The applicant appeals. For its part, the respondent again raises its affirmative defense under Wis. Stat. § 102.12, which it raised before the ALJ.
a. Extent of disability from May 1992 injury.
The applicant argues, essentially, that his doctors are more credible than the respondent's medical examiner, Dr. Grossman, on the extent of disability. However, the commission does not agree.
After carefully reviewing the record, the commission concludes that the applicant recovered from the May 1992 car accident without permanent disability. While cervical problems were noted initially in the emergency room, the applicant's most immediate concern was with his back. In his first treatment note of December 1992, Dr. Leonard discusses neck symptoms only collaterally and it is not clear from Dr. Leonard's report that the applicant even had ongoing neck complaints at that time. Certainly, Dr. Zdeblick states in January 1993 that chiropractic treatment gave the applicant "good relief" of his cervical complaints.
Indeed, the first records clearly documenting neck complaints are dated in July 1993 (14 months after the injury). At that time, Dr. Leonard opined that the applicant's neck complaints were musculoskeletal. It was not until January 1994 (and the intervening increase of symptoms while bending to turn the grill valve) that the applicant saw Dr. Zdeblick (who ultimately performed the fusion surgery) about his neck. Further, the applicant had considerable degenerative pathology in his spine shown in the earliest x-rays. It also appears that the actual nerve cord abnormalities eventually shown in the 1994 MRI may have arisen well after the May 1992 car accident; at least, the 1993 cervical CT scan did not mention significant impingement. In sum, the commission adopts the ALJ's conclusion that the applicant had only a short-term "temporary aggravation" from the work injury.
b. Wis. Stat. § 102.12
The respondent argues, however, that the applicant's claim should be barred completely under Wis. Stat. § 102.12. That section, which provides a kind of statutory basis for the equitable defense of laches, states:
"102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employe knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employe or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employe had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17 (4).
The respondent asserts the applicant's claim should be barred for failing to report timely his injury or commence an action with respect to it. Under Wis. Stat. § 102.12, a failure to report an injury within 30 days bars a claim only if it is shown the employer was misled by the lack of notice. A claim is barred if an application is not filed within 2 years of when the injured worker ought to know the nature of his disability and its relationship to work, unless the employer knew or should have known of the injury. The commission concludes neither provision applies here.
The applicant's uncontradicted testimony is that the employer's owner knew of the
employe's May 1992 work injury while driving between job sites, as the owner picked the
applicant up from the hospital on the day it happened. Indeed, the employer's owner
recommended a chiropractor for treatment. The employer's owner did not testify, and the
record contains no evidence rebutting either point.
Given that the employer's owner knew the applicant was sufficiently injured following the
1992 on-duty car accident that follow-up chiropractic treatment might be necessary, the
commission cannot conclude the employer has affirmatively shown it was misled by any lack
of notice. Further, the applicant's testimony shows the employer had actual knowledge of
the injury on the day it happened.
cc: ATTORNEY MICHAEL LUEBKE
GINGRAS CATES & LUEBKE SC
ATTORNEY RONALD S APLIN
COYNE NIESS SCHULTZ BECKER & BAUER SC
Appealed to Circuit Court. Affirmed February 1, 2000. Appealed to Court of Appeals. Affirmed February 8, 2001 (publication not recommended).
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Footnotes:
(1)( Back ) The May 1994 accident occurred when the applicant was driving to work to start the day, which is a noncompensable "commuting" injury, as opposed the May 1992 injury which occurred between jobsites.