THOMAS G MUELLER, Applicant

GREEN BAY PACKAGING INC, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued on February 21, 2002. The employer submitted an answer to the petition and both parties filed briefs. At issue is whether the applicant sustained a compensable work injury, temporary total disability benefits and medical expense as a result of a work injury on September 3, 1999.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge concerning his assessment of the credibility of witnesses, hereby reverses the findings and order below and substitutes the following therefor

The applicant worked for the employer for a very short period of time beginning August 23, 1999, as a production laborer. The applicant suffered a non-work related injury when he fell at home in his bathtub, and suffered a cracked right rib on August 13, 1999. The applicant was originally scheduled to begin work on August 16, 1999, but due to his rib injury he informed the employer he would need some time off, and actually did not begin working for the employer until one week later.

The applicant was released to return to full duty, and subsequently claimed in December 1999 he suffered a work-related occupational type injury on September 3, 1999, while working a double shift for the employer. The applicant contended he worked the first eight hours on September 3, 1999, performing his normal work as a forklift driver, but during the second eight hours he was working on a rotor machine which involved vigorous work which aggravated his right rib injury, and led to an occupational type exposure injury or an aggravation of a preexisting condition, leading to his need for treatment and surgery on September 12, 1999.

The applicant did not report to the employer or the insurer that his ongoing disability and need for treatment after September 3, 1999, was due to his work exposure with the employer until December 28, 1999. The applicant admitted he had been informed in August 1999 during his orientation he was to report any work injuries promptly. The applicant admitted he did not report the injury promptly to the employer, and explained that because he was a probationary employee he was afraid he would be terminated if he reported such a work injury.

Under Wis. Stat. § 102.12 no claim for compensation may be maintained unless within 30 days after the occurrence of the injury, or 30 days after the employee knew or ought to have known the nature of his or her disability and its relationship to the employment, actual notice is received by the employer or by an office manager or designated representative thereof. Absence of notice does not bar recovery if it is found the employer was not misled thereby.

The administrative law judge determined the applicant should have done what he was told by the employer at his orientation, and informed the employer not only about his disability but its relationship with his work within the 30-day period established by the legislature. The ALJ concluded the record is clear the applicant did not follow the directives of the legislature set forth in section 102.12 and failed to comply with this section, and dismissed the applicant's claim in its entirety. However, the evidence does not indicate there was any showing the employer was misled or prejudiced by the applicant's failure to give prompt notice pursuant to Wis. Stat. § 102.12. In Marten Transport v. LIRC, Cir. Court Case dated July 25, 1996, the circuit court refused to apply Wis. Stat. § 102.12 in a similar situation noting that even if the applicant did not give proper notice, the employer and insurer had not shown it was prejudiced by such failure. Since there was no showing of prejudice to the employer due to the applicant's failure to give notice or that the employer was misled thereby in constructing a defense to the applicant's claim, the commission reverses the administrative law judge's dismissal of the case on the basis the applicant failed to give proper notice pursuant to Wis. Stat. § 102.12.

However, the commission dismisses the applicant's claim on the merits and finds he did not suffer a work-related injury on September 3, 1999. The applicant testified that, due to working a double shift on September 3, 1999, including work on a rotor machine, he had the gradual onset of severe right rib pain over the following two days leading to his need for treatment on September 6, 1999, and subsequent surgery on September 12, 1999. However, the employer presented evidence and testimony that the applicant did not work a double shift on September 3, 1999, but rather he worked a double shift including work on a rotor machine only on August 27, 1999. There is no evidence the applicant saw any treating physician for any aggravated right rib pain shortly after August 27, 1999, and the first note of any treatment was on September 6, 1999. In addition, the applicant's treatment records do not clearly indicate he reported any work injury or exacerbation of his right rib pain to his treating physicians on September 6, 1999. The medical records simply reveal a prior right rib injury due to a fall at home earlier in August 1999. There is one reference in Exhibit B to a subsequent onset of right rib pain two weeks after the fall at home but it does not specifically refer to any work-related incident.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony of the nature and onset of his rib pain on September 3, 1999. The administrative law judge indicated he did not have any strong credibility impressions, and the applicant explained that he could not be expected to remember specific dates after such a long period of time from the alleged date of injury to the date of hearing. However, there is a serious inconsistency in the applicant's testimony as compared to the medical records. It would seem reasonable to expect if the applicant had the onset of right rib pain on September 3, 1999, he would have reported such incident or onset to his treating physicians on September 6, 1999.

The employer's plant superintendent, Mr. Stepp, testified the applicant worked his normal light duty work on a forklift throughout September 1999, prior to his surgery. The applicant's treating physician, Dr. Johnkoski, stated in his WC-16-B dated March 31, 2001, the applicant suffered an occupational injury, as well as an aggravation type injury due to working a double shift with strenuous activity resulting in an exacerbation of plural complications on September 3, 1999. Dr. Johnkoski's WC-16-B does not include any medical history or notes to support his conclusion or indicate what type of strenuous activity the applicant engaged in on September 3, 1999. The applicant's discharge diagnosis from the hospital on September 18, 1999, was status post right rib fracture sustained on August 14, 1999, with increasing chest discomfort and cough leading to surgery with no mention of any work injury or aggravation. Given the applicant's preexisting, serious right rib injury when he cracked a right rib when he fell in his bathtub at home on August 13, 1999, and given the inconsistencies in the applicant's testimony as compared to the medical records, and the employer's production records concerning the date the applicant worked a double shift on August 27, 1999 and not September 3, 1999, the commission finds the evidence is sufficient to raise a legitimate doubt the applicant suffered an occupational type work injury or an aggravation of his preexisting condition, as a result of his work activities on September 3, 1999. Therefore, the applicant's claim for benefits must be dismissed. 

NOW, THEREFORE, this

The findings and order of the administrative law judge are reversed and the commission's findings and order substituted therefore. The applicant's claim for benefits is dismissed.

Dated and mailed September 11, 2002
muellth . wrr : 175 : 8  ND § 8.47

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Shane W. Falk
Attorney Steve A. Cotton

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