LINDA SURPRISE, Applicant
SURFACE MOUNT TECHNOLOGY, Employer
TRAVELERS INDEMNITY CO OF CT THE, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed November 6, 2007
suprise . wsd : 101 : 1 ND §
5.32, 5.34
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The applicant sought compensation related to a fall at work. The ALJ found the applicant slipped and fell on the smooth cement floor at work due to slippery residue on the soles of her shoes from flux, a substance on the employer's premises. The ALJ accordingly awarded compensation as set out in his order.
On appeal, the employer and its insurer (collectively, the respondent) does not challenge the findings on nature and extent of disability. Rather, the respondent contends the fall was unexplained and not proven to have arisen out her employment, and is therefore noncompensable. The respondent also questions the ALJ's reservation of jurisdiction on medical expenses.
An "unexplained fall" is not compensable simply because it occurred while the worker was performing services. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). Such an accident or fall, even though occurring while a worker is performing services for an employer, does not arise out of employment as is required under Wis. Stat. § 102.03(1)(e). In order to be compensable, the fall must additionally be explained by evidence of a cause related to employment. Briggs & Stratton, 43 Wis. 2d at 405-06.
For example, Durkee v. County Marathon Other, WC claim no. 91-043764 (LIRC, April 16, 1992), aff'd sub nom. Durkee v. LIRC, case no. 93-0920 (Wis. Ct. App. October 26, 1993) involved a fall in a hallway on a courthouse terrazzo floor. In Durkee, the worker failed to prove the floor was slippery, so the commission denied worker's compensation as the injury was not shown to arise out of her employment. (1) However, the court of appeals, in its decision affirming the commission in Durkee, emphasized that an injured worker need only prove a floor is slippery, not why it was slippery.
Like the ALJ, the commission concludes the most reasonable inference from the evidence is that the floor was slippery and the applicant fell because she slipped on it. On the one hand, the applicant testified only that she thought she stepped in a slick area on the floor but had no actual recollection of her feet slipping. However, Ms. Reinert, a supervisor employed by the employer at the time of injury, testified that she herself had slipped on the floor often and explained how the smooth cement floor would become slippery, identifying water and flux. Ms. Reinert had worked with flux often and, as a supervisor, had a good understanding of the employer's processes (for example, she persuasively explained why the employer used two different types of bottles to contain and apply the flux). Further, the ALJ who observed Ms. Reinert -- and the other witnesses -- testify credited Ms. Reinert's testimony.
After reviewing the record, the commission sees no reason to question the ALJ's firsthand credibility impression. The commission appreciates that Ms. Reinert was discharged by the employer for absences from employment after the applicant's injury. However, the commission does not conclude from that that her sworn testimony is untrustworthy, especially as the employer thought enough of her personal integrity to make her a supervisor. Like the ALJ, the commission finds Ms. Reinert's testimony to be credible and consistent even under a relatively vigorous cross-examination.
In short, the commission concludes that the applicant slipped on a slippery floor, and thus the fall is explained by evidence of a cause related to employment. While the commission must draw an inference to reach that conclusion, the drawing of that inference does not undo the explanation.
The respondent also asks that the commission deny past medical expenses (those incurred to the date of the last hearing) on which the ALJ reserved jurisdiction because the applicant has not proceeded with the expenses through three separate dates of hearing. The ALJ's decision, however, includes a footnote stating that the parties stipulated to deferring the claim for reimbursement of medical expenses until a future hearing. Indeed, the stipulation appears in the record in the last sentence of the "Proceedings" section of the synopsis from the hearing on November 30, 2006.
cc:
Attorney John Griner
Attorney Mark Gustafson
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