WILLIE JENNINGS, Applicant

AMERICAN SEWER SERVICES, Employer

ASSURANCE COMPANY OF AMERICA, 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 August 19, 2004
jenniwi . wsd : 185 : 2 ND § 8.24

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Respondents assert in their petition that the administrative law judge erred in admitting Applicant's Exhibits B and C, since they were not timely filed in accordance with Wis. Stat. § 102.17(1)(d). However, the hearing transcript records the discussion of this matter prior to the taking of testimony, when respondents objected to admission of these exhibits. The administrative law judge responded to this objection by offering to postpone the hearing to give respondents an opportunity to gather additional evidence, including cross-examination of Dr. Major, but respondents declined this offer. Respondents argue that the administrative law judge should have gone ahead with the hearing as scheduled, and excluded the contested exhibits from the record.

Wis. Stat. § 102.17(1)(a), provides in relevant part that a hearing " . . . may be adjourned in the discretion of the department . . . ." The administrative law judge reasonably exercised his discretion to offer a postponement of the hearing, in order to cure any prejudice claimed by the respondents as a result of late submission of the contested exhibits. As noted by the administrative law judge, those exhibits were important to a fair resolution of the matter, and he determined that it would be better to postpone the hearing than to exclude them based on the procedural objection. Respondents chose not to accept the postponement but to proceed with the hearing, and thereby effectively waived their objection to the submission of the exhibits. The commission would add that the medical evidence from Dr. Major found in Applicant's Exhibit A, would have adequately apprised respondents of Dr. Major's opinion concerning work-related causation. Respondents had already obtained the medical opinion from Dr. Robbins (Respondent's Exhibit 1), which disputed the claim of work-related causation.

Respondents additionally assert that Dr. Major's opinions do not credibly support the findings that the applicant's disability and medical expense, including the surgeries of March and September 2003, were causally related to the work injury of November 12, 2002. However, Dr. Major consistently and credibly related the applicant's ongoing back condition, including the two surgeries, to the work injury. On November 26, 2002, Dr. Major wrote in a letter that the applicant had acutely injured his back at work during a lifting episode approximately one week previously (it had actually been two weeks since the work injury). On March 4, 2003, Dr. Major wrote in a letter that the applicant's work injury was related to his current problem. On April 13, 2003, Dr. Major completed a "Physician's Report" in which he indicated the applicant's disability was incurred in the course of his employment. On July 14, 2003, Dr. Major wrote in a letter that the applicant had undergone a one-level spinal fusion for degenerative disc disease aggravated by a workplace injury. On September 4, 2003, the date of the second surgery, Dr. Major dictated a clinic note indicating that this surgery had revealed a pseudoarthrosis from the first surgery requiring refusion and reinstrumentation. Thus, the cause of the second surgery was credibly related to the first surgery, and hence to the work injury.

cc:
Attorney Nancy Gruber
Attorney Stanley J. Lowe

Appealed to Circuit Court.  Affirmed February 23, 2005.

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