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

IKE LANGLEY, Applicant

INX INTERNATIONAL INK COMPANY, Employer

YASUDA FIRE & MARINE INSURANCE COMPANY OF AMERICA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998032801

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 October 6, 1999
langlik.wsd : 185 : 3 ND § 8.27

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant submitted credible evidence in support of his claims for temporary total disability and permanent total disability. Neither the employer nor the insurance carrier (collectively the respondents) appeared at the hearing held on June 23, 1999, even though both of them were sent notice of such hearing on April 27, 1999. Accordingly, no credible evidence exists in the record to rebut the applicant's case. No attempt to establish good cause for respondents' failure to appear has been made, nor was any explanation offered for the failure to answer the application for hearing or the amended application. Respondents offer arguments in their petition which rely on factual assertions which have not been submitted into evidence, and given the circumstances of this case, the commission does not deem it appropriate to order a new hearing.

Respondents claim a violation of the 30-day notice provision under Wis. Stat. § 102.12, but the applicant gave timely notice of his injury to the employer. The applicant also amended his application to give notice of his psychological injury within two weeks of the date of Dr. Bjerregaard's report. This constituted timely notice of the psychological injury. The psychological injury was a compensable consequence of the original occupational injury, and under Wis. Stat. § 102.01 (2)(g), the psychological injury bears the same date of injury as the occupational injury.

Respondents also assert that the applicant violated the notice provisions of Wis. Stat. § 102.17 (7)(b). But this assertion is belied by the file copy of the applicant's letter to the department dated January 7, 1999, copied to the insurance carrier, in which notice was given of the applicant's intent to produce the testimony of vocational expert John Birder at the hearing.

Finally, respondents asserted that the applicant's psychological disability should have been attributed to employment with a second employer, if to any employer at all. This assertion is not based on any medical opinion or other credible evidence of record, and must be rejected.

cc: ATTORNEY MARK P MCGILLIS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY IRWIN L KASS
BOARDMAN SUHR CURRY & FIELD LLP

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