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


LEONARD ANTONICCI, Applicant

KOHLS FOOD STORE, Employer

KOHLS FOOD STORE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996059961


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 June 7, 1999
antonic.wsd : 101 : 5  ND § 8.33  § 8.18  § 8.19

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On May 15, 1997, ALJ Randall Kaiser issued a decision finding a compensable work injury occurring on October 14, 1996. He also ordered temporary disability paid to the date of the hearing preceding that order (April 25, 1997). Because he concluded that the applicant had not finished healing, ALJ Kaiser left the order interlocutory on all issues.

The employer and insurer (collectively, the respondent) filed a late appeal of ALJ Kaiser's May 1997 order, which the commission dismissed as untimely.

Thereafter, the applicant allegedly reached his healing plateau. He sought an order granting additional temporary disability and permanent partial disability. Another hearing was scheduled before ALJ Kaiser in June 1998. The respondent's pre-hearing correspondence did not expressly state that the employer intended to again raise the causation issue at the second hearing. On the day of the second hearing, for the first time, the employer indicated it wanted to revisit causation.

ALJ Kaiser refused, noting that the employer had not raised the issue earlier. In a second order, dated September 4, 1998, ALJ Kaiser awarded five percent permanent partial disability and another 28 weeks of temporary disability. It is this second order that is now before the commission.

On appeal, the respondent's attorney asserts that he should be allowed to revisit the issue of causation (that is, whether a compensable injury actually occurred on October 14, 1996.) The respondent noted that the ALJ left his first order interlocutory on all issues, and that the second hearing notice did not specifically say causation would not be at issue.

However, the commission believes the ALJ correctly refused to reconsider the issue of causation. In support of its position, the respondent cites Lange Canning Co. v. Industrial Commission, 183 Wis. 2d 583 (1924), holding that an employer may resurrect the question of whether a compensable injury occurred in response to a second application, despite failing to appeal an earlier decision finding the compensable injury occurred. However, in the current case, correspondence provided to the applicant from the insurer on the second application indicates, if anything, that the insurer did not intend to relitigate the question of whether a compensable injury occurred on October 14, 1996 (even if its IME still had doubts. (1))

The second issue in this case is the extent of disability. The applicant continued to treat with a Dr. Reddi at the Curative Workshop to December 1997. Dr. Reddi set a healing plateau on November 12, 1997, the date he released the applicant to work with restrictions. (Exhibit A, page 1.)

While Dr. Wooten opines the applicant plateaued from his cervical injury much earlier (in December 1996), he noted the applicant's presentation on examination in November 1997 was better than it had been in April 1997. (Exhibit 1, page 2.) He also acknowledged in November 1997 that the applicant showed "substantial clinical improvement in response to recent epidural steroid injections." (Exhibit 1, page 4.) This refers to injections given as part of his treatment with Dr. Reddi between April and November 1997.

In other words, IME Wooten essentially admits the applicant's condition continued to improve to November 1997. Because the commission concludes that the applicant's continuing condition was due to the October 1996 work injury, then the improvement noted by Dr. Wooten would indicate the applicant was in fact still healing into November 1997. (2) Thus, the ALJ correctly ordered payment of temporary disability to November 1997. The permanent disability the ALJ awarded is within the range estimated by IME Wooten, assuming the injury was compensable.

cc: ATTORNEY WILLIAM J REDDIN
REDDIN & SINGER

ATTORNEY JOSEPH BERGER
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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Footnotes:

(1)( Back ) See particularly exhibit J and exhibits 1 and 2., from the June 1998 hearing. While Dr. Wooten referred to the October 1996 work injury as "alleged" in exhibit 1, the respondent subsequently told him to go ahead and estimate disability from the work injury (exhibit J.) It may have been that the insurer simply meant for IME Wooten to rate disability as if the injury occurred, and thus was not conceding a compensable injury. However, since the respondent never challenged the occurrence of an injury before the second hearing, the commission does not view that as a reasonable inference.

(2)( Back ) Subject to Wis. Stat. § 102.43(2) and (3), a worker is entitled to temporary disability until there has occurred all of  the improvement that is likely to occur as a result of the treatment and convalescence. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).