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


BRETT WOOD TAYLOR, Applicant

UNITED PARCEL SERVICE, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95048406


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.

ORDER

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

Dated and mailed: December 11, 1997
woodtbr.wsd : 101 : 3  5.40

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

An August 21, 1995 work injury was conceded. At issue before the ALJ was the nature and extent of disability from that injury. The ALJ found that the applicant was temporarily disabled from the work injury from December 11, 1995 through February 14, 1997. The ALJ left her order interlocutory, specifically including the issues of medical expense liability and additional temporary disability as matters to be decided after further hearing.

The employer and the insurer (collectively, the respondent) appeal. The respondent asserts that the ALJ erred in admitting exhibits B through J, that she erred in finding the applicant was temporarily disabled, and that she erred by failing to consider and dismiss with prejudice the applicant's claim for medical expenses.

In this case, there have been two hearings on temporary disability. A third will be held for additional temporary disability, medical expenses, and, potentially, permanent disability. The applicant did not submit most of his medical records or practitioner's reports until the day of the first hearing. He did not submit his WC-3 statement of treatment expense until the day of the second hearing.

Wisconsin Statutes 102.17 (1)(d) provides that an ALJ may not admit into evidence a practitioner's report or medical record that was not submitted to DWD and all other parties more than 15 days in advance of the hearing, unless good cause is shown. A similar rule applies with respect to documentation supporting medical treatment expense. Wisconsin Statutes 102.17 (8).

Thus, at the time of the first hearing, the ALJ refused to admit the documents filed that day as untimely. By the time of the second hearing, of course, more than 15 days had passed, so the ALJ then admitted these documents. The ALJ likewise declined to admit the medical treatment expense documentation submitted at the second hearing, but ruled that medical expense would be dealt with at a third (as yet unheld) hearing. By the time the third hearing is held, the medical expense documents will no longer be untimely.

The respondent's attorney contends that the practitioner reports and medical records submitted on the day of the first hearing should be excluded from the record under the 15-day rule. He argues that these documents, which are critical to the findings on causation, were improperly admitted into the record at the second hearing. He also asserts that, since liability for medical expense was noticed as an issue at the first hearing, the ALJ has inappropriately delayed its resolution to the third hearing. Rather, he believes that issue should have been resolved at the second hearing, and that the resolution should have been dismissal since the medical expense documentation, too, was not submitted 15 days before the first or second hearing. In short, the respondent views the ALJ's actions in this case as contrary to the fifteen-day-or-good-cause rule.

However, ALJs have considerable latitude in rescheduling or continuing hearings. Such an action, like a postponement, is a matter of ALJ discretion in controlling his or her calendars. This procedural aspect of hearing procedure, which at most tangentially involves the awarding or denying of compensation, is an area into which the commission is reluctant to intrude. See for example, McNabb v. Cedar Crest Specialties, WC claim no. 92028018 (LIRC, January 31, 1997).

In this case, of course, a second hearing on temporary total disability was necessary because the ALJ ran out of time during the first hearing, and the parties were considering going to a "tie-breaker doctor." A third hearing on additional temporary disability and potential permanent disability will be necessary, given that the applicant had not yet plateaued from the December 1996 surgery at the time of the March 1997 hearing.

And of course, the underlying purpose of the fifteen day rule will have been served: the respondent will have had a chance to respond to the records, reports, or medical expense documentation. This is consistent with the evident purpose of Wis. Stat. 102.17 time deadlines: to prevent trial by ambush at the hearing. See DWD Workers Compensation Act, with amendments to January 1, 1996 (the "canary yellow" book), footnote 68.

The commission does note that neither it nor an ALJ may simply ignore the 15 day deadlines under Wis. Stat. 102.17. In Eaton's Fresh Pizza v. LIRC, case no. 96-CV-089 (Wis. Cir. Ct. Fond du Lac, November 19, 1996), the court found an abuse of discretion when the commission failed to exclude several exhibits submitted by the applicant which were not timely filed in advance of the hearing. However, it is important to understand why the court found an abuse of discretion:

"The plaintiffs should have had an opportunity to view, to study, and to examine these exhibits prior to the hearing, and to determine a course of action, to rebut the same, . . ."

Eaton's Fresh Pizza, slip op., at 11. By the same token, the commission has refused to consider untimely reports submitted at the hearing, when the opposing party was not given a chance to respond. Krause v. Sentry Foods, WC case no. 93016343 (LIRC, April 25, 1995).

In the present case, of course, the ALJ did not admit the records and reports until the second hearing, and will not admit the medical expense documentation until the third hearing. Thus, the respondent will have a chance to respond to the content of the reports. This case is thus clearly distinguishable from Eaton's Fresh Pizza and Krause on that basis.

In sum, the commission cannot conclude the ALJ erred, either in admitting exhibits B through J at the second hearing, or in deferring decision on medical expenses until the third hearing.

As noted above, the respondent also contends that the ALJ erred in finding the applicant was entitled to temporary total disability benefits. As the respondent acknowledges, however, this argument hinges on the assumption that exhibits B through J are not admissible. However, for the reasons stated above, the exhibits are admissible.

In response, however, the respondent points to exhibit 2, a videotape taken in November 1996 just before the second surgery. The tape shows the applicant teaching a judo class to small children. The respondent claims the applicant's action on the tape contradict the applicant's hearing testimony.

The commission cannot conclude that the videotape creates legitimate doubt as to the applicant's eligibility for temporary disability, including the periods of temporary total disability awarded by the ALJ. First, the videotape hardly shows a great deal of agility on the part of the applicant. Second, the fact remains that the applicant underwent a surgical disectomy, something he would be unlikely to do unless he really was in pain and disabled. Third, the surgery did disclose and correct a physiologic basis for the applicant's complaints. Fourth, the respondent did not offer an opinion from a medical expert to explain the pathology found during the second surgery or to opine the activity shown in the video established that the applicant was not disabled from the August 1995 work injury. The most reasonable conclusion on the record as it stands is that the August 1995 work injury caused the need for December 1996 discectomy, and the resulting periods of disability.

cc:
ATTORNEY DANIEL R DINEEN
VANDEN HEUVEL & DINEEN SC

ATTORNEY JEFFREY T OCONNOR
LAW OFFICE OF JEFFREY T OCONNOR


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