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

MARTIN F LAYMAN, Applicant

ALLISTER FABRICATING CO, Employer

TRAVELERS CASUALTY & SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1989-048657


Allister Fabricating Company and Travelers Casualty & Surety Company (respondents) submitted a late petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 20, 2001. Briefs have been submitted by the parties. The first issue is whether the respondents have demonstrated probable good cause for finding that their petition was late for a reason beyond their control. Originally, respondents had disputed the compensability of the applicant's claim, but in their petition to the commission, no arguments were made in this regard. Respondents have petitioned the administrative law judge's findings concerning the applicant's claims for additional temporary partial disability and additional medical expense.

The commission has carefully reviewed the entire record in this matter, and hereby reverses his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Late Petition

The petition was received two days after the appeal period had expired, but by mistake, a copy of the administrative law judge's decision was not sent to respondents' attorney, Linda Kiemele. Attorney Kiemele subsequently obtained a copy of the decision from applicant's attorney, Steven Lownik, after learning from Attorney Lownik that the decision had been issued. However, Attorney Kiemele did not receive this copy from Attorney Lownik until April 4, 2001.

Considering the circumstances, which constituted department error, the commission finds that respondents have shown probable good cause that their petition was late for a reason beyond their control. The petition is therefore accepted.

The Claims for Additional Temporary Disability and Medical Expense

The applicant worked as a welder for the employer, and on or about July 28, 1989, he developed trigger finger in his right small finger from overuse. Later in 1989, Dr. Domenick Bruno performed a surgical release of the trigger finger. On January 9, 1990, Dr. Lewis Chamoy performed a palmar fasciectomy with excision of part of the superficialis tendon and tenolysis of the profundus tendon. Later in 1990, Dr. Ron Stark performed another surgery involving ulnar neurolysis, excision of the flexor tendons and insertion of a passive tendon rod. Infection developed at the surgical site which was successfully treated. Still later in 1990, Dr. Stark performed a flexor tendon graft to the right small finger, utilizing a tendon from the right leg.

On April 5, 1991, Dr. Stark found a healing plateau and gave the applicant permanent restrictions of no forceful or repetitive grasping or wrist motions, no job requiring sustained grasp, and no lifting over 50 pounds. He assessed permanent partial disability "in the range of 10 to 15 percent" at the right wrist.

The applicant was also evaluated by Dr. James E. White on October 24, 1991, and Dr. White opined that no further therapy or surgery was recommended. He assessed 15 percent permanent partial disability at the right hand.

Respondents conceded a work injury and paid temporary and permanent disability as well as medical expenses. The current application claimed additional temporary partial disability during the period beginning November 13, 1999, and continuing through the hearing date of December 13, 2000. It also claimed additional medical expenses. The applicant received additional treatment for his hand in 1998 and 1999, but there is no medical opinion in the record indicating that he entered a new period of temporary disability. In addition, no medical invoices or summary of medical expenses were submitted.

The applicant bears the initial burden of proof in worker's compensation cases. Lewellyn v DIHLR, 38 Wis. 2d 43, 52, 155 N.W.2d 678 (1968); VanValin v. Industrial Commission, 15 Wis. 2d 362, 364, 112 N.W.2d 920 (1962). The determination of whether an individual remains medically disabled is a question which requires an opinion from a medical expert. Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 630, 563 N.W.2d 512 (1997). The applicant's assertion that he was temporarily disabled on various days beginning November 13, 1999, is unsupported by any medical opinion.

The applicant also claimed that he incurred additional medical expenses, but failed to submit either a listing of such alleged expenses or medical opinions supporting such unnamed expenses.

The administrative law judge's order requiring the respondents to "investigate" whether the applicant sustained any additional temporary partial disability and/or medical expenses is contrary to the established burden of proof. The applicant was given full and fair opportunity to present his case for these claims at the hearing held on December 13, 2000. He failed to do so, even though notice of the hearing was sent to him on October 18, 2000. Therefore, his claims must be dismissed.

The medical notes of Dr. Brusky and Dr. Watchmaker do indicate that the applicant could require additional treatment and/or sustain additional disability as a result of the work injury of July 28, 1989. Accordingly, the order will be left interlocutory.

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are reversed. The applicant's claims for additional temporary partial disability and additional medical expense up to the date of hearing, December 13, 2000, are dismissed.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed September 25, 2001
laymama . wrr : 185 : 8   ND § 8.23  § 9.2 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission's reversal of the administrative law judge's decision was based on the fact that the evidence submitted by the applicant failed to establish a prima facie case for compensability of the claims asserted. The applicant's credibility was not a factor in the commission's decision.

cc: 
Attorney Steven J. Lownik
Attorney Linda D. Kiemele


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/09/26