THOMAS DOROW, Applicant

DUNHAM EXPRESS, Employer

ZURICH AMERICAN INSURANCE COMPANY, 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 December 9, 2002
dorowth . wsd : 101 : 3  ND § 9.2  § 8.24 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant seeks compensation for medical treatment expense and temporary total disability from an injury on June 28, 2001. The employer and its insurer (collectively, the respondent) conceded the injury occurred, but denied liability for the claimed medical expense and temporary disability. At the hearing, the applicant and respondent offered various documents into evidence, including: practitioner's reports from the applicant's treating chiropractor, David K. Schneider, D.C. (exhibit D); reports from a physician retained by the respondent to do a record review, Daniel Wartinbee, M.D., (Exhibit 1), and various other medical records (exhibits 2 through 4). However, the ALJ did not receive the medical reports and medical records identified above, on the grounds that the documents were not timely filed under Wis. Stat. § 102.17(1)(d).

Because exhibits D and 1 through 4 were not received, the ALJ concluded that there was no basis for paying the disability and medical expense claimed. The applicant filed a petition for review.

The first issue is the employer's assertion that the applicant's petition for review is not timely under Wis. Stat. § 102.18(3). The ALJ's decision was dated and mailed on August 16, 2002, so the last day for a timely petition for review in this case was 21 days later on September 6, 2002. Here, the applicant's petition on form WKC-28 was date-stamped as received by DWD's worker's compensation division on September 6, 2002.

For some reason, however, the applicant dated his petition September 20, 2002. In addition, the applicant did not provide a copy of the petition to the respondent's attorney. However, the petition, regardless of the date given by the applicant, was received in a proper location for filing on September 6, 2002. Further, while attorneys routinely provide copies of petitions for commission review to one another to avoid the appearance of an ex parte communication, it is not statutorily-required. Accordingly, the petition was timely, and the commission has jurisdiction to review the case.

The second issue is whether the ALJ properly denied the applicant's claim for disability and medical expense for lack of supporting medical evidence. The first part of that issue is whether the ALJ properly excluded the late-filed expert medical opinion and medical records in exhibits D, and 1 though 4.

The record discloses no good cause for the late submission of the expert medical opinion and medical records. Both of the practitioner's reports from treating chiropractor Schneider in excluded exhibit D were signed months before the hearing, as were the reports from record-reviewer Wartinbee. The ALJ acted reasonably in excluding the documents from the record.

Moreover, as the ALJ explained, in the absence of exhibits D and 1 through 4, there is no support for the applicant's claims. Accordingly, the ALJ properly denied the claims and dismissed the hearing application.

cc: Attorney Robert Gregg

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uploaded 2002/12/23