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


DOUGLAS MORTENSON, Applicant

PAUL BUGAR TRUCKING, Employer

THRESHERMENS MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94005130


The applicant filed an application alleging a work injury causing disability from low back pain, with an October 27, 1993 date of injury. The applicant submitted no medical support for his claim, either with his application or upon the department's request for medical support for his claim.

A hearing was held on the application on June 13, 1995, but the applicant failed to appear. At the hearing, the employer introduced the notes of the applicant's treating doctor, Panna Varia, M.D., who began treating the applicant for low back pain on October 29, 1993. Dr. Varia opined in a letter dated August 19, 1994, that the applicant's low back pain was a manifestation of a preexisting condition, and did not seem to be related to his work. Dr. Varia's notes and letter were received into evidence at the hearing as respondent's Exhibit 1. Thereafter, the administrative law judge issued an order on June 20, 1995, dismissing the application without prejudice.

The employer and the insurer (collectively, the respondent) filed a timely petition for review, asking the commission to modify the administrative law judge's order to dismiss the application with prejudice. The applicant has not responded to the petition.

After carefully reviewing the entire record in this case, the commission sets aside the administrative law judge's order, and substitutes instead the ORDER set out below which dismisses the application in this case with prejudice.

The commission dismisses with prejudice for several reasons. First, the applicant has failed to submit any medical evidence, including notes or expert opinion, to support his claim. Second, he failed to appear at the hearing, and as far as the commission can tell, he has never explained his failure to appear. Third, he has never responded to the respondent's petition asking this commission to modify the administrative law judge's order to dismiss the application with prejudice. Finally, Dr. Varia's notes and opinion letter, the only medical evidence on the record in this case, establish that the applicant did not suffer an accident or disease arising out of his employment with the employer, while performing services growing out of and incidental to that employment. Section 102.03 (1)(c)1 and (e), Stats., and Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). Consequently, the commission concludes that a dismissal with prejudice is appropriate under sec. 102.18 (1)(a), Stats., in default on the applicant's failure to appear at the hearing.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The administrative law judge's Order is modified to conform with this Order and, as modified, is affirmed. The application is dismissed with prejudice.

Dated and mailed August 31, 1995
ND 8.9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

cc: ATTORNEY DAVID A PIEHLER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC


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