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

JOSE GALARZA, Applicant

STONE CONTAINER CORP, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-031096

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 10, 2004. The employer and its insurance carrier (respondents) submitted a late cross-petition. The applicant's petition asserted that the administrative law judge failed to order payment of a medical expense in the amount of $1,719.24, that should have been paid in accordance with his other findings. Respondents' late cross-petition raised issues of causation as well as nature and extent of disability.

Respondents' cross-petition is denied because it was not timely (see Wis. Admin. Code § LIRC 1.026). However, as explained in Larry Schmidt v. Metropolitan Milwaukee Auto Auction, WC Claim No. 1998-012175 (LIRC April 13, 2001), the commission retains the authority to review all issues in a case in which a timely petition has been filed by one of the parties. If in such a case the commission chooses to review the arguments raised in the dismissed cross-petition, those arguments are given less weight than if they had been made in a timely cross- petition or petition (Id.).

The commission has carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's Findings and Order, except as herewith modified:



MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW


On page 7 of the administrative law judge's decision, add the following sentence:

Respondents shall also reimburse Aetna/US Health Care in the amount of $1,719.54.

The rest of remainder of the administrative law judge's decision is affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

ORDER


The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed.

Dated and mailed October 15, 2004
galarjo . wpr : 185 : 8   ND § 9.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission agreed with the administrative law judge that the applicant gave credible testimony concerning the work injury that occurred on February 25, 2002. While the descriptions of the injury recounted in various medical records are not entirely consistent with the applicant's description of the injury and symptom onset, there was no major discrepancy. The commission is familiar with the regrettable fact that medical records completed by busy physicians and their assistants are frequently inaccurate with respect to the details of how a work injury occurred. While discrepancies between various records and an applicant's testimony certainly may reach a level where the applicant's credibility is undermined, the commission did not find this to be such a case. Respondents' assertions that the accident could not have occurred as explained by the applicant are rejected. The applicant's description of how the accident occurred is credible.

cc:
Attorney Michael D. Stotler
Attorney David L. Weir

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