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

MATHEW P MITCHELL, Applicant

THILMANY PULP AND PAPER COMPANY, Employer

INTERNATIONAL PAPER COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92038959

An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations 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, except that it makes the following modifications:

1. Delete the fourth full paragraph on page 4 of the Decision.

2. In the second sentence of the second paragraph on page 6 of the Decision, delete the material beginning with the comma and ending with the word "claim."

ORDER

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

Dated and mailed April 20, 1995
ND § 8.12

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the respondent contends that the ALJ improperly exercised his discretion in denying the respondent's request for a continuance. The respondent sought the continuance so it could obtain an opinion of a medical expert on the applicant's claim for compensation for disability from a pulmonary embolism. In its petition, the respondent goes on to state that the applicant relied on an expert opinion from his family practitioner, rather than the specialist who treated him, and that the applicant refused to attend an independent medical examination which the respondent scheduled before the hearing. However, the respondent admitted that the independent medical examination was scheduled in Madison, and that the applicant (whose mailing address is in Kaukauna) refused to attend under the "100-mile rule." Section 102.13 (4), Stats.

The 100-mile rule is an exception to the general requirement under sec. 102.13 (1), Stats., that injured employes must submit to independent medical examinations. Under sec. 102.13 (1)(c), Stats., an employe who refuses an employer's request to submit to an independent medical examination may be suspended from trying to collect any disability otherwise accruing. If the examination is ordered by an administrative law judge, the suspension may be turned into an outright bar on collecting any disability until the employe submits to the examination. However, both the suspension and the bar are subject to the "100-mile exception" under sec. 102.13 (4), Stats.

Section 102.13 (4), Stats., which was recently amended, provides:

"102.13 (4) The rights of employes to begin or maintain proceedings for the collection of compensation and to receive weekly indemnities which accrue and become payable shall not be suspended or barred under sub. (1) when an employe refuses to submit to a physical examination, upon request of the employer or worker's compensation insurer or at the direction of the department or an examiner, which would require the employe to travel a distance of 100 miles or more from his or her place of residence, unless the employe has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employe's place of residence or the department or examiner determines that any other circumstances warrant the examination. If the employe has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employe's place of residence, the employer or insurer may request, or the department or an examiner may direct, the employe to submit to a physical examination in the area where the employe's treatment practitioner is located."

The department has also provided the following explanatory footnote :

"43 This provides that compensation may not be suspended or barred when the employe refuses to submit to an examination which would require him or her to travel a distance of 100 miles or more from his or her place of residence unless the department authorizes the examination. One hundred miles is determined from map miles as the crow flies from the place of residence and not by highway mileage."

In this case, the respondent's petition and the ALJ's synopsis of the hearing testimony indicate that the respondent knew, well in advance of the December 8, 1994 hearing, that the applicant had refused to attend the independent medical examination under the 100-mile rule. Since the independent medical examination was scheduled for sometime in August 1994, the respondent had at least 14 weeks notice that the applicant did not attend. However, the respondent took no action. In addition, the ALJ's notes state that the respondent scheduled the August 1994 independent medical examination with a pulmonary expert in March 1994. The commission, like the ALJ, has difficulty understanding the five-month delay. Further, the respondent apparently became aware of the pulmonary claim in 1993.

The commission also considered the respondent's argument that the applicant should have gotten an expert opinion from the pulmonary specialist who examined him, Dr. Whiteside, rather than his "family doctor," Dr. Jeffrey. However, the commission declines to reverse the ALJ's ruling denying the continuance on this basis. First, as a medical doctor licensed in this state, Dr. Jeffrey's certified opinion qualifies as an expert opinion under sec. 102.17 (1)(d), Stats. Second, Dr. Whiteside specifically stated in his note dated June 17, 1993, that he concurred in the treatment given by Dr. Jeffrey. Third, while Dr. Whiteside's note goes on to state that the embolism "may be related to his recent lack of ambulation related to surgery, although his obesity certainly may be a complicating factor," the note was neither certified nor submitted in advance of the hearing, so it does not qualify as expert opinion. In addition, since none of the documents submitted in respondent's Exhibits 2 through 5 were certified by their custodian or by the practitioner who made record of them, the ALJ properly excluded them (whether offered as expert opinion or simply as medical records.) See, generally, sec. 102.18 (1)(d), Stats. Fourth, nothing prevented the respondent itself from soliciting the opinion of Dr. Whiteside in certified form and thus avoid the 100-mile rule issue.

In short, the ALJ properly denied the respondent's request for a continuance, either because the respondent failed to act more promptly under the 100-mile rule or simply because no "other circumstances warrant examination." The commission therefore affirms his decision to deny a continuance. In the absence of medical evidence contrary to Dr. Jeffrey's opinion concerning the embolism, the commission also concludes the ALJ properly granted compensation for that condition.

Finally, the commission deleted those portions of the ALJ's Findings and Order specifically retaining jurisdiction for a delayed penalty payment if the applicant applies for a hearing on that matter. Jurisdiction on these issues is retained by the "automatic" effect of sec. 102.18 (4), Stats., which applies even if not specifically mentioned by the ALJ.

cc: ATTORNEY PHILLIP R OBRIEN
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY KEITH W KOSTECKE
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

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