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


NEALA WINCHEL, Applicant

FRANCISCAN SISTERS OF PERPETUAL ADORATION
ST JOSEPHS MEMORIAL HOSPITAL & HOME, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93066564


The employer and the insurer (collectively, the respondent) have submitted a timely petition for commission review of Administrative Law Judge Roberta Arnold's July 22, 1996 findings of fact, conclusions of law, and interlocutory order. After reviewing the briefs submitted by the parties and the entire record in this case, the commission concludes that ALJ Arnold's order does not award or deny compensation. Consequently, the commission has no jurisdiction to proceed at this point.

NOW, THEREFORE, the Labor and Review Commission makes this

ORDER

The petition for review is dismissed.

Dated and mailed October 31, 1996
winchne.wpr : 101 : 8  ND 9.2

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission's authority on review is limited to orders awarding or denying compensation. Section 102.18 (3), Stats. "Compensation" is broadly defined in the act to include any liability under ch. 102, Stats. Sections 102.01 (1) and (2)(am), Stats. The commission acknowledges that ALJ Arnold's order, which indicates that the respondent should pay for the EMG testing (whether under Spencer (1) or sec. 102.17 (1)(g), Stats.), comes close to an award of compensation. However, payment of medical expenses generally may not be ordered prospectively (2) and the ALJ has not yet made an order under 102.17 (1)(g), Stats.

In short, ALJ Arnold's order is a sua sponte grant of a postponement, and within her discretion as a factfinder conducting a hearing. But even if the order was beyond her discretion, the commission has no authority to review it at this point. If the commission were to reverse ALJ Arnold's order now, it would be managing ALJ Arnold's hearing rather than reviewing an order awarding or denying compensation.

cc: ATTORNEY PETER T WALTZ
FITZPATRICK SMYTH DUNN & FITZPATRICK

ATTORNEY WILLIAM R GARDNER
STILP & COTTON


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Footnotes:

(1)( Back ) Spencer v. DILHR, 55 Wis. 2d 525, (1972), which holds that if treatment for a work injury is determined to be unnecessary, it must still be paid.

(2)( Back ) Levy v. Industrial Commission, 234 Wis. 670 (1940); Ramirez v. Grede Foundries, WC claim no. 92042919 (November 29, 1993) and Lainberger-Nelson v. Beaver Dam Care Center, WC claim no. 93-043967 (January 3, 1996).