DENNIE E JOHNSON, Applicant

NORTHLAND EQUIPMENT CO, Employer

THE CINCINNATI INSURANCE CO, Insurer

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.

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

Dated and mailed July 19, 2001
johnsde . wsd : 175 : 8  ND  § 5.46   § 8.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant was entitled to temporary total disability benefits until December 9, 1999, for his work-related injury on June 2, 1999. The employer contends that the administrative law judge should have credited the opinion of Dr. Wirth, who examined the applicant on behalf of the employer, who opined that the applicant reached a maximum healing within eight weeks from the date of injury. The applicant testified that he attempted to return to work in June 1999 with restrictions, but began working on a dump truck which was not within his restrictions, and had a flare-up in his back symptoms and was again taken off of work by Dr. Atkinson. The applicant testified that he was again released to return to work with restrictions in August of 1999 to lighter duty, but again the employer returned him to building flat beds, and not all of the work was within his restrictions and he again was taken off of work by his physician.

The applicant testified to his ongoing pain and restrictions as a result of his work injury. Dr. Atkinson's treatment notes, in the summer and fall of 1999, reflect that the applicant reported some improvement in his condition, as well as several flare-ups and exacerbations during the summer and fall of 1999. Dr. Atkinson diagnosed the applicant with a compression trauma to the back, spinal joint damage, disc swelling and spinal joint bursitis. Dr. Atkinson opined that as a result of the work incident in June of 1999, the applicant is suffering from an acute, as well as chronic soft tissue problem, and that the magnitude of pain that he has been suffering has weakened the back and has allowed greater instability to complicate his condition and recommended rest to help initiate the healing process as well as treatment.

The commission agrees with the administrative law judge that the records of chiropractor Atkinson were replete with reports of pain and limitation from June 2, 1999 to December 9, 1999. The evidence indicates that when the applicant sought further employment as a truck driver in December of 1999, there was a note that the applicant has been returned to work without restrictions by Dr. Bracko on December 8, 1999.

The commission credits the applicant's testimony of his ongoing pain and restrictions as a result of his work injury, and concludes that the applicant's problems in November and December of 1999 were related to his back injury in June of 1999, and not to any pre-existing back problems. The applicant had a prior back injury in 1998, but after some treatment returned to work without restriction. The applicant did not have evidence of degenerative disc disease and prior to the work incident on June 2, 1999, he had been able to perform his normal work. The commission finds that the applicant did not reach a healing plateau until December 1999, and the administrative law judge appropriately awarded the applicant temporary total disability benefits from June 2, 1999 to December 9, 1999.

The employer also states that the administrative law judge erred in allowing the applicant 45 days to submit itemized medical bills. The employer contends that the applicant failed to file the necessary itemized bills, as required by statute, and should not have been allowed an additional 45 days from the date of the order in order to submit such itemized bills. However, the commission does not find that the administrative law judge abused her discretion in giving the applicant additional time to submit the itemized bills. Wis. Stat. § 102.17(8) provides that an applicant shall submit at least 15 days before the date of hearing an itemized statement of all medical expenses and incidental compensation claims by the injured employee, and that the department may not admit into evidence any information relating to medical expenses that the injured employee failed to file with the department, and serve on all parties at least 15 days before the date of hearing such an itemized statement. However, the statute does not provide that the department can deny the applicant's medical expenses in this situation, but that a late statement or an non-itemized statement may not be admitted into evidence. In this case, the applicant clearly suffered a work injury and to allow the employer to avoid paying any medical expenses for the applicant, who was unrepresented in this matter, for a work-related injury would be a windfall for the employer and insurer. The commission finds that under the circumstances presented in this case that the administrative law judge appropriately gave the applicant an additional 45 days to submit an itemized medical expense report, and the administrative law judge's order in this regard is affirmed.

cc: Attorney David L. Styer

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