STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JAMES A NADOLKSI, Applicant
COUNTY OF WINNEBAGO SHERIFFS DEPARTMENT, Employer
EMPLOYE TRUST FUNDS
COUNTY OF WINNEGABO, Insurer
c/o EMPLOYERS INSURANCE OF WAUSAU
WORKER'S COMPENSATION DECISION
Claim No. 1996048267
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (DWD) issued a decision in this matter. A 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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Facts.
The applicant, who was born in 1957, suffered a heart attack while pruning branches in his back yard in 1995. At the time, the applicant was a detective, handling homicides for Winnebago County. The applicant held that job since 1991, and testified that though he liked the work it was stressful.
Indeed, the applicant claims the job stress caused his heart attack. In support of his claim under Wis. Stat. § 40.65, the applicant must submits reports certifying his claim from two doctors. These are at ETF exhibit 1.
Kenneth Geller, M.D., stated that in his opinion, the acute myocardial infarction resulted from occupational exposure. In narrative form he states:
"While the applicant has risk factors for coronary artery disease, including smoking and a positive family history, extraordinary work related stress has aggravated or accelerated the normal progression of the disease."
As a job restriction, Dr. Geller recommend the applicant avoid very stressful conditions, emotional or physical.
Donald Brescia, M.D., issued a report stating that the applicant's coronary artery disease, status post myocardial infarction, was the result of occupational exposure. In narrative form he states:
"As to whether the stress related to his job may have been a factor in his development of plaque rupture and myocardial infarction in 1995, is that it certainly may have been related to the pathogenesis of his myocardial infarction. This is in view of the particularly stressful homicide cases that the patient was engaged in at that time as an investigator."
With respect to work restrictions, Dr. Brescia stated "this patient should be able to perform all the duties of a detective as described in his job description, except perhaps the chase of a suspect greater than 100 yards."
The Department of Employe Trust funds (DETF) procured an IME report from Dianne L. Zwicke, M.D. This is also in EFT exhibit 1. She described his impairment as a limited heart attack in April 1995, but that he had no abnormalities manifesting themselves as symptoms, and that he had completely recovered. Her description of the injury or disease causing impairment was: atherosclerotic cardiovascular disease or coronary artery disease resulting in a limited anteroseptal myocardial infarction. She described coronary artery disease as a slowly progressive disease.
Dr. Zwicke stated the mild impairment from the heart attack would be permanent, but would not be noticeable in day-to-day functioning, and caused less than a five percent permanent partial disability. She did not think any work restrictions were necessary, and that he should have been able to return to work within 3 months of the heart attack. She did emphasis he should keep himself fit and control his risk factors.
Regarding the association of his coronary artery disease to work, Dr. Zwicke states:
"Mr. Nardolski's coronary artery disease (CAD) did not result from occupational exposure. CAD is a result of deterioration (aging) of the wall of the artery. This is slowly progressive and chronic. His heart attack occurred because of the progression of his underlying disease and had nothing to do with his work.
. . .
"CAD is a progressive, chronic artery disorder that occurs over years. He was not doing anything physically or emotionally stressful at work at the time (or within several hours of the time of this heart attack). There is no connection to work."
Exhibit ETF 1, January 24, 1996 report of Zwicke.
DETF denied the applicant's claim for duty disability on July 30, 1996. The applicant appealed.
ALJ James Lawrence heard the case on April 22, 1998, March 22, 1999, and June 22, 1999. He issued a decision on July 19, 1999. Copies presumably, were mailed to the parties: the applicant, DETF and Winnebago County. For some reason, however, he failed to follow DWD's consistent practice of sending a courtesy copy to the parties' attorneys.
Seven months later (and eight months after the last hearing), the applicant's attorney found out that ALJ Lawrence had issued an adverse decision. He then filed an immediate, though late, petition for commission review the next day. This appeal ensued.
2. Jurisdiction on late petition.
The first issue is whether the commission may accept the applicant's late petition. Wisconsin Statute § 102.18(3) requires a petition for commission review to be filed within 21 days of the date an ALJ's decision is mailed to the parties last known addresses. Neither Wis. Stat. § 102.18(3), nor any statute or administrative rule, requires mailing a courtesy copy of an ALJ's decision to the attorneys of record; though the commission observes that the consistent practice of DWD is to mail courtesy copies to attorneys.
Untimely petitions must be dismissed unless the petitioner shows probable good cause that the reason for the failure to file a timely petition was beyond the petitioner's control. In this case, the 21-day appeal period ran on August 9, 1999, well before the applicant's petition was finally filed in February 2000.
The applicant's position, essentially, is that the failure of DWD to mail a copy of ALJ Lawrence's decision to the applicant's attorney of record provides probable good cause that the reason for the applicant's failure to file a timely petition was beyond his control. Winnebago County and DETF assert that the commission lacks jurisdiction to consider the petition. They point out that the law does not technically require a copy be sent to the applicant's attorney, or any party's attorney, and that the applicant sat on his rights anyway for 7 months after receiving his copy of the decision which included the appeal deadlines. They also point out that a more diligent applicant's attorney would have contacted ALJ Lawrence after the 90-day deadline imposed on ALJs to issue a decision (1) ran in late September 1999.
The commission does not lightly disregard the arguments of DEFT and Winnebago County on this point. However, the commission has previously addressed the issue at hand in a case involving very similar facts. In Toni Palmer v. Toro Company, WC claim no. 86012679 (LIRC, June 10, 1993), DWD mailed the applicant's attorney's courtesy copy of an ALJ decision to the wrong address, and then took no further action when the letter was returned by the postal service. Thirteen months later, the applicant's attorney finally inquired about the status of the case, and a late appeal ensued.
After considering arguments very similar to those raised by DEFT and Winnebago County here, the commission decided to accept Ms. Palmer's petition and proceed to the merits. Its decision in Toni Palmer states in part:
". . . the employer contends that a copy of the administrative law judge's decision was mailed to the applicant, and thus the statute was complied with even if the applicant's attorney never received his copy. However, a strong argument could be made that once a party appears by attorney in a worker's compensation case, the party's last-known address for the purposes of the legal proceedings arising from that case could reasonably be considered to be his or her attorney's address. Certainly, when an applicant hires an attorney to represent him or her in a worker's compensation claim, he or she may reasonably understand that a copy of any decision will be sent to that attorney who will take further action on the decision, whether to appeal it, defend it against an appeal or simply explain it to the applicant."
Toni L. Palmer v. Toro Company, WC claim no. 86012679 (LIRC, June 10, 1993), opinion at page 3.
The commission's practice since Toni Palmer has been to adhere to this principle. See, for example, Corey French v. Western Temporary Services, WC claim no. 94041080 (LIRC, September 30, 1996) (copy attached). The commission also notes that Wis. Stat. § 102.17(1)(c) specifically gives parties the right to be represented by an attorney. In light of that statutory right, the commission believes that due process may require consistency about notifying attorneys of record of ALJ decisions.
Accordingly, the commission concludes that the applicant has shown probable good cause that the reason for his failure to file a timely petition for commission review was beyond his control. The commission therefore proceeds to the merits of the applicant's duty disability claim.
3. The duty disability claim.
In order to prevail in a duty disability case, an employe must have been injured while performing his or her duty or contracted a disease due to his or her occupation. Wis. Stat. § 40.65(4)(a). The commission cannot conclude that the applicant has established such an injury disease in this case.
First, the commission finds most credible the report of Dr. Zwicke, who opined the applicant's heart attack had nothing to do with work. The commission finds persuasive Dr. Zwicke's explanation that coronary artery disease is a process that develops over years, as well as her observation that the applicant suffered his heart attack not during a time of emotional stress related to work, but while performing physical labor off duty at his home. In addition, Dr. Bresica's narrative explanation uses hedging "certainly may have been" language (2) in discussing the role stress played in causing the applicant's heart attack. Beyond that, Dr. Geller acknowledges the presence of other risk factors for heart disease, including family history and smoking, in the applicant's case.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
ORDER
The findings and order of the administrative law judge are modified to the foregoing. The application is dismissed.
Dated and mailed July 28, 2000
nadolsk . wrr : 101 : 3 ND § 9.2
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
cc: ATTORNEY DANIEL R DINEEN
VANDEN HEUVEL & DINEEN SC
ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC
Appealed to Circuit Court. Affirmed February 14, 2001.
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Footnotes:
(1)( Back ) Wis. Stat. § 101.18(1)(b).
(2)( Back ) The word "may," even in the phrase "certainly may" connotes a possibility rather than medical probability. See Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959).