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

JIPPIE BROWN, Applicant

BEST TIRE CTR, Employer

BEST TIRE CTR, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995058315

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, except that it makes the following modifications:

1. Delete the fourth paragraph of the ALJ's Findings of Fact and Conclusions of Law and substitute:

"As a result of the injury, the applicant was temporarily disabled from October 25, 1995 to February 1, 1996, both dates inclusive, a period of 14 weeks and two days which, at a rate of $326.67 per week, entitles him to $4,682.22. The applicant was also temporarily totally disabled from March 21, 1998 to September 26, 1998, a period of 27 weeks which, at a renewed TTD rate of $356.67 per week, entitles him to $9,630.09.

"During his healing period, the applicant worked for Larry Chan from October 1 to November 15, 1998, forty hours per week at $8.50 per hour. Thus, in the week ending on October 3, 1998, the applicant worked two eight-hour days at $8.50 per hour, and so earned $136. Based on a "renewed TTD" rate of $356.67, the applicant is entitled to temporary partial disability in the amount of $257.67 for that week. Beginning in the week ending on October 10, 1998 and continuing through the week ending on November 14, 1998, the applicant worked forty-hour weeks at $8.50 per hour, and so earned $340 per week. Based on a renewed TTD rate of $356.67, the applicant is entitled to $109.185 in temporary partial disability in each of those weeks totaling $655.11. In all, then, the applicant's entitlement to temporary partial disability while employed with Larry Chan was $912.78.

"The applicant was again temporarily and totally disabled from October 15, 1998 through the date of hearing (February 22, 1999), a period of 14 weeks and two days which, at the renewed TTD rate of $356.67 per week, entitles him to $5,112.32.

"In sum, the applicant is entitled to $20,337.42 in temporary disability under this order. He agreed to an attorney fee under Wis. Stat. § 102.26, which is set at 20 percent of the total compensation awarded, or $4,067.48. This amount, together with costs of $386.31, shall be deducted from the total due the applicant, and paid to his attorney within 30 days. The remainder, $15,883.62, shall be paid to the applicant within 30 days."

2. In the ALJ's Interlocutory Order, delete the first two clauses ending in semicolons, and substitute:

"That within 30 days, the respondent employer Best Tire Center, Inc., shall pay to the applicant, Jippie Brown, Fifteen thousand eight hundred eighty-three dollars and sixty-two cents ($15,883.62) in disability compensation; to the applicant's attorney, Michael Gillick, the sum of Four thousand sixty-seven dollars and forty-eight cents ($4,067.48) in fees and Three hundred eighty-six dollars and thirty- one cents ($386.31) in costs;".

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed October 29, 1999
brownji.wmd : 101 : 7  ND § 8.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent failed to appear at the February 22, 1999 hearing before ALJ Kaiser in this matter. The hearing proceeded in the respondent's absence, and ALJ Kaiser took testimony from the applicant and admitted his Exhibits A through D into the record. Thereafter, the ALJ issued a decision in favor of the applicant.

In its initial brief following its petition for commission review, the respondent raised three issues (a) whether the ALJ's "default" order was appropriate, (b) whether the record supports the order made, and (c) whether the ALJ erred in failing to reduce the applicant's award based on subsequent employment with another employer.

With respect to the first issue, the respondent asked the commission to "supply the entire file from the Department, pursuant to our request, so that additional briefing can be allowed" with respect to the issue of why the respondent failed to appear at the hearing before ALJ Kaiser. Thereafter, the commission forwarded additional file material, and allowed additional briefing. As the commission reads the respondent's letter brief of October 1, 1999, the respondent no longer contends the ALJ inappropriately proceeded upon its failure to appear.

With respect to the second issue (whether the record supports the ALJ's order), the commission notes that the ALJ did not "default" the respondent in the sense of simply ordering what the applicant asked for without taking any evidence. Instead, the ALJ went forward with a hearing, took testimony from the applicant about how the injury happened and its effect, and admitted exhibits including a WC-16-B and narrative report from a consulting doctor (N.M. Reddy, M.D.)

The respondent raises a number of points in opposition to the applicant's claim: the exhibits containing treatment notes and medical records are not complete, a treating doctor (C.K. Nagy, M.D.) suggested surgery was performed when there is no evidence of that in the record, the connection between the submitted expense and the treatment is unclear, and consulting doctor Reddy on whom the applicant relies did not adequately explain his opinion. Had the respondent appeared and offered a competing medical opinion, that report might have appeared relatively more credible in light of the concerns the respondent raises. However, while the respondent's concerns may go to the relative credibility of Dr. Reddy's opinion, they do not render his opinion insufficient to support the award or incredible as a matter of law.

In the absence of competing expert medical opinion, the commission must keep in mind the restrictions upon relying on lay intuition to find legitimate doubt and reject the only expert medical opinion provided in this case. See Leist v. LIRC, 183 Wis. 2d 450 (1994). After carefully considering the arguments raised by respondent, the commission concludes that the award in this case is completely supported by Dr. Reddy's report on form WC-16-B, his narrative report, and the applicant's testimony about when he was off work. In addition, the applicant testified all of the itemized bills were for his work injury; in the absence of a contrary medical opinion, or a challenge on the record, that is sufficient support for the bills. In short, the points raised by the respondent on appeal do not raise a legitimate doubt in the minds of the commission on any element of the applicant's claim.

With respect to the third issue (the calculation of the temporary disability award in light of the applicant's subsequent employment), the commission amended the ALJ's order as set out above.

cc: ATTORNEY JULIE J DARNIEDER
DARNIEDER WEST DAVIS & GERAGHTY

ATTORNEY MICHAEL H GILLICK
MURPHY GILLICK WICHT & PRACHTHAUSER

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