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

JOHN OEHRLEIN, Applicant

ROYLE PUBLISHING CO, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1990-066484

The applicant submitted a petition for commission review alleging error in the administrative law judge's decision issued in this matter on March 1, 2004. That decision dismissed the applicant's application as time-barred by the relevant statute of limitations (Wis. Stat. § 102.17(4)). On February 10, 2005, the commission remanded the matter to the department for hearing, and hearings were held on April 13, 2005, and on January 31, 2006. The matter is now before the commission with respect to the issue of whether the applicant's application, filed on May 23, 2003, was time-barred pursuant to Wis. Stat. § 102.17(4).

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order issued on March 1, 2006. The commission makes the following:

FINDINGS OF FACTS AND CONCLUSIONS OF LAW


The applicant sustained a myocardial infarction on October 15, 1990, after running through an airport to catch a plane while on a business trip for the employer. On February 22, 1991, the insurer sent a letter to the applicant acknowledging that the infarction was a compensable worker's compensation injury, and accepting responsibility for compensation. This was after the physician secured by the respondents, Dr. E. W. Grogan, had opined that the "acute precipitating cause" of the infarction was the episode of running in the airport. The last payment of temporary disability was made on February 25, 1991. The applicant continued to receive follow-up treatment for coronary artery disease, including a hospitalization for losing consciousness after a treadmill test in 1992, and treatment for ventricular tachycardia in 1997. It was not demonstrated that either of those two treatment events was related to the work injury.

On November 27, 2001, the applicant underwent surgical implantation of a cardiac defibrillator, causing him to be off work from November 27, 2001 though December 1, 2001. The employer paid him his regular wages during this period. The applicant argues that payment of these wages extended the statute of limitations for filing a worker's compensation claim, pursuant to the last sentence of Wis. Stat. 102.17(4):

"Payment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment."

In his decision of March 1, 2004, the administrative law judge rejected the applicant's argument. The ALJ found that during the period of November 27, 2001 to December 1, 2001, neither the employer nor the insurer was aware of any alleged, work-related component to the surgical procedure; and that accordingly, the last date for filing a claim was 12 years after February 25, 1991, or February 25, 2003. The applicant did not file a claim until May 23, 2003.

At the insurer's request, Dr. Diane Zwicke submitted two medical opinions concerning the applicant's condition. In the first one dated August 21, 2002, she opined that implantation of a defibrillator was medically indicated "at the time of the origin event in 1990," and again when the defibrillator was actually implanted in November 2001. She specifically attributed the need for the defibrillator to the October 1990 infarction stating:

"The only ongoing treatment needed in regard to the 10/15/90 incident is follow up of the implantable defibrillator/pacemaker, which will be ongoing for the remainder of his life."

On August 28, 2002, the insurer wrote a letter to the applicant indicating that it would accept responsibility for the defibrillator implant, based on Dr. Zwicke's opinion linking the need for the implant to the 1990 infarction. Implicit in this letter is an acknowledgement that the insurer continued to accept Dr. Grogan's opinion that the 1990 infarction was a work-related injury.

On April 14, 2003, Dr. Zwicke wrote a letter in response to the insurer's newly-posed question asking whether the 1990 myocardial infarction was attributable to the work event of running to catch a plane. Dr. Zwicke opined that the applicant had numerous cardiac risk factors, and that the infarction could have occurred "at any point in time, given the right precipitating events." She described such "precipitating events" as "physically or emotionally stressful situations." However, she ultimately opined that the applicant's employment did not cause or precipitate the infarction, adding that it would have occurred "in the near future" if it had not occurred at the airport.

On April 29, 2003, the insurer informed the applicant that based on Dr. Zwicke's opinion that the infarction had not been work-related, they were not paying any additional compensation.

In deciding whether the employer's payment of wages in November/December 2001 tolled the 12-year limitation, the determinative question is whether the employer or the insurer knew of the relationship between the applicant's defibrillator implant and the work-related event. This is a factual question. Yunker v. LIRC, 115 Wis. 2d 525, 529-30, 341 N.W.2d 703 (1983).

The commission infers that the insurer and the employer had been monitoring the applicant's claim and knew full well that they were at risk for the implant procedure when that procedure was done on November 27, 2001. They had conceded a work-related myocardial infarction, and the insurer's concern for continuing liability is what prompted it to ask Dr. Zwicke for her opinion concerning the defibrillator implant. Her subsequent opinion that the October 1990 infarction was not work-related was not sought by the insurer until April 1, 2003, which was after the alleged cut-off date for filing a claim on February 25, 2003. By its letter to the applicant dated August 28, 2002, the insurer effectively reassured the applicant that it was still accepting the infarction as work-related, and effectively assured him that the wage payments he received relative to the implant procedure were also work-related. The employer and insurer assert that at the time these payments were made to the applicant in November and December of 2001, they were unaware of the relationship between these payments and the work-related infarction. Given the above facts the commission finds this assertion to be incredible. Even had it been true that the insurer and the employer had, in their own minds, decided in November 2001 that the work-relatedness of the infarction was questionable, they did not communicate any such doubt to the applicant when the employer made the wage payments. On the contrary, the insurer notified the applicant on August 28, 2002, that it was accepting responsibility for the implant procedure as being work-related. This was well before the alleged cut off date of February 25, 2003.

Additionally, in Dr. Zwicke's letter dated August 21, 2002, she very clearly opined that the inferior heart wall scar from the 1990 infarction had resulted in five percent permanent partial disability. Dr. Zwicke did not at that time indicate that she considered the cause of the 1990 infarction to have been nonindustrial, and so the insurer was in possession of Dr. Grogan's opinion of a work-related injury, and Dr. Zwicke's opinion that such injury had caused five percent permanent partial disability. At that time it should have begun immediate payment of permanent partial disability, because there was no defense to nonpayment until Dr. Zwicke's opinion rendered on April 14, 2003, almost eight months later. Payment of this permanent partial disability should also have established a new date for the 12-year period for filing a claim, as provided in Wis. Stat. § 102.17(4).

The commission therefore finds that the application the applicant filed on May 23, 2003, was timely. The matter will be remanded to the department for resolution of any remaining dispute(s) concerning the nature and extent of disability and/or liability for medical expense.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The administrative law judge's decision issued in this matter on March 1, 2004, is reversed. The application filed on May 23, 2003, was filed within the 12-year period provided in Wis. Stat. § 102.17(4). The matter is remanded to the department for resolution of any remaining dispute(s) concerning the nature and extent of disability and/or liability for medical expense.

Dated and mailed March 30, 2006
oehrljo . wpr : 185 : 8  ND § 8.47

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Israel Ramon
Attorney Daniel J. Jungen

Appealed to Circuit Court.  Appeal dismissed, August 23, 2006.

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