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

BRIAN STARK, Applicant

KOHLER CORP, Employer

KOHLER CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999032987

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 31, 2000
starkbr . wsd : 175 : 5 ND § 8.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant has failed to present prima facie evidence as to medical cause for his alleged occupational, wear and tear neck condition. The applicant contended that he had suffered an occupational disease type wear and tear neck injury as a result of his work for the employer in September 1998. However, Dr. Borca, one of the applicant's treating physicians, opined that the applicant had suffered a work-related injury on September 21, 1998 resulting in left C7 radiculopathy but he did not specifically opine that the applicant had suffered an occupational disease, or a wear and tear injury. Further, Dr. Northrup, another of the applicant's treating physicians, testified that he did not think that the applicant's problem was work related as there is only a history of some elbow pain some years ago and then the arm pain that started in mid-September 1998, and that the blow to the elbow would not be a cause of the applicant's neck problem. Dr. Northrup admitted that he did not discuss the applicant's work duties with him and he did not have an opinion as to whether the applicant's neck trouble was due to a wear and tear work exposure. Dr. Northrup stated that when he checked the box marked "yes" on the work release slips for work related absence it was more for clinic billing purposes than causation, and he had no opinion on an occupational neck injury. In addition, Dr. Mann, the applicant's treating surgeon, also did not opine that the applicant suffered from an occupational type neck injury. Based on the lack of medical support in the record the commission finds that the applicant has not established a prima facie case for an occupational cervical injury.

The employer contends in its cross-petition for commission review that the administrative law judge erred in dismissing the applicant's claim without prejudice. The employer states that it is not within the power of the administrative law judge to order that a dismissal be without prejudice because the administrative law judge believes that the case was not well prosecuted. However, although the administrative law judge mentioned in his order that he believed that the case was not well prosecuted, the evidence does not establish that he dismissed the case without prejudice on that basis. Rather, the administrative law judge noted that pursuant to Wis. Stat. § 102.18(6) that a dismissal without prejudice was appropriate. Under Wis. Stat. § 102.18(6) in the case of disease arising out of employment the department may from time to time review its findings, order or award and make new findings, order or award based on the facts regarding disability or otherwise as they may then appear. Under this provision the department may review its order in this case and make new findings based on facts presented in the future. Therefore, under the provisions of the statute the administrative law judge appropriately noted that the dismissal should be without prejudice since it allows additional evidence to be tendered in cases of alleged occupational disease. The administrative law judge clearly had the authority to make the order without prejudice pursuant to Wis. Stat. § 102.18(6) without a finding that the case had not been well prosecuted but simply on the merits of the statute itself. Therefore, the commission finds that the administrative law judge did not err in dismissing the applicant's claim without prejudice.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY PAUL H TEN PAS
KOHLER COMPANY

Appealed to Circuit Court.  Appeal dismissed January 12, 2001. Appealed to the Court of Appeals. Affirmed, unpublished  Summary Disposition, June 20, 2001.

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