ERIC MURSA, Applicant

LEAR SEATING CORP, Employer

AMERICAN ZURICH INS CO, Insurer

The applicant filed an application for hearing in May 2005, seeking compensation for a right arm injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 19, 2007. Prior to the hearing, the employer and the insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $892.17 as of the alleged date of injury, February 17, 2006. At issue is whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment on February 17, 2006, and, if so, the nature and extent of disability from the injury.

The ALJ issued his decision in the applicant's favor on April 27, 2007. The respondent filed a timely petition for commission review.

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 makes the following:

The applicant was born in 1974. He began working for the employer in October 2000. He was injured on February 17, 2006, after his shift ended, while pushing a coworker's vehicle which was stuck in snow on the employer's parking lot.

The applicant's normal work shift was 4:30 p.m. to 2:30 a.m. On the date of injury, his shift was longer than usual--he worked until about 3:30 a.m. He punched out, and went to his car in a parking lot on the side of the employer's building where he normally parked.

It had snowed during the evening. The employer had plowed a path through the parking lot to allow its trucks to get through, creating a set of ridges down the aisle or driving lane running behind the applicant's car. The applicant got in his car and got ready to back out of his stall. He noted that about four stalls down, in the direction he needed to drive down the aisle to exit, another car was having trouble backing over the four inch ridge of snow.

The driver of the other vehicle was attempting to free her vehicle by "rocking" the vehicle back and forth. The applicant did not believe he would be able to get out of the lot safely, as the other vehicle was rocking part way into the aisle or lane to the exit. In other words, the other vehicle posed an obstacle or impediment to the employee's progress--it blocked his way out.

On cross-examination, it was brought out that neither the female coworker whose vehicle was stuck in the snow nor another male co-worker who was also trying to push her out actually asked the applicant to help. In his prior 5-plus years of employment, the applicant had not previously pushed a vehicle stuck in snow in the employer's parking lot. The applicant also admitted that when the driver of the other vehicle rocked the vehicle forward into the stall, he could have passed in the aisle. However, the applicant reiterated that when the driver rocked the vehicle backwards, he could not have gotten around her.

At any rate, the applicant and the other male coworker then proceeded to push the front end of the stuck vehicle while the driver tried to back out. On the final push, the applicant applied extensive force to the vehicle and experienced a pop in his right elbow, followed by numbness. The applicant proceeded immediately to a hospital for treatment.

Part of the emergency room note is at the first page of exhibit 1. It gives a history of

a 31-year old male who was pushing a car out of the snow at 2:30 a.m. this morning and felt a snap in his elbow and had sudden pain in his right arm. He had difficulty moving his right arm, numbness in the hand, and pain in the antecubital fossa area shooting up into his biceps area.

The emergency room doctor's diagnosis was biceps rupture. He noted a consultation with a David Pittenger, M.D., who recommended a sling and opined the applicant would likely need surgery. Dr. Pittenger agreed to see the applicant in the next few days.

Indeed, the applicant saw Dr. Pittenger on February 22, 2006. The doctor's note states:

He injured his right arm when he was helping to push a car out of a ditch on February 17. The patient felt a pop in his elbow and has had some weakness and pain since then.

After an examination, Dr. Pittenger diagnosed a probable partial ruptured biceps tendon, right elbow, and recommended an MRI for an evaluation.

The applicant then underwent an MRI and a repeat MRI, and returned to Dr. Pittenger on March 7, 2006. During this visit, the doctor noted the MRI showed "no visible tendon attaching the radial tuberosity" but also not a lot of bony edema and the doctor noted some palpable biceps anteriorly. He recommended an exploratory surgery.

This was done on March 17, 2006. In the partial operative note at exhibit 1, Dr. Pittenger stated that one MRI had shown a partial rupture, while the other showed a total rupture. On operative inspection, the doctor noted "some partial intrasubstance rupture of the biceps in the antecubital space," which was "firmly adherent to the radial tuberosity." It does not look from the note like the doctor did either a reattachment or a detachment procedure, but the "radial tuberosity area was excoriated with a rongeur to facilitate scarring of the remainder of the biceps."

When the applicant went for check up, the doctor noted that the applicant had a partial rupture, that it had been 71/2 weeks since the surgery, and that he had well healed scars with no complaints of pain. After three months, on June 21, 2006, the doctor released him to work without restriction.

Dr. Pittenger did a final disability rating on September 13, 2006. On that date, the doctor noted a complaint of some soreness and some range of motion limitation. On examination, there was little loss of grip strength but some limited range of motion, notably in supination. He had full elbow extension and 130 degrees of flexion, the doctor gave him

a 1% of his upper right extremity secondary to loss of supination and 5% due to residual scarring. Therefore his total impairment rating in the right upper extremity is 6%.

The first issue is whether the applicant sustained a compensable injury--that is, an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. Particularly at issue is whether the applicant sustained an injury while performing services growing out of his employment with the employer; that is, whether the applicant's injury occurred in the course of employment.(1) This inquiry turns on Wis. Stat. § 102.03(1)(c)2, which provides:

102.03(1)(c)2 Any employee going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or while in the immediate vicinity thereof if the injury results from an occurrence on the premises, any employee going between an employer's designated parking lot and the employer's work premises while on a direct route and in the ordinary and usual way or any fire fighter or municipal utility employee responding to a call for assistance outside the limits of his or her city or village, unless that response is in violation of law, is performing service growing out of and incidental to employment.

The applicant was in a snowy parking lot at 3:30 a.m. after an 11-hour shift. The commission infers he wanted to get out of the lot as quickly and safely as possible to go home. He planned to take the route he customarily took out of the lot and onto the road. However, another vehicle was "rocking" into the egress lane between the applicant and the exit to the street, intermittently blocking the applicant's path.

The applicant could have waited indefinitely and hoped someone else helped the other vehicle or that her rocking efforts eventually proved successful. He could have attempted to drive out, trying to sneak past the other vehicle as it is rocked forward in the parking space--a course the respondent seems to advocate. Possibly, the applicant could have gone the other way in the aisle lane to get out through another exit if there was one.(2) Or the applicant could have tried to help remove the obstacle from his path so he could safely leave the employer's parking lot by his normal route.

The applicant, a relatively young man, reasonably chose the latter course. The applicant testified he got out of his car to help the other vehicle only in part as a "Good Samaritan." He was also motivated by his desire to pass safely on his normal course out of the employer's parking lot. Again, it was 3:30 a.m. after an 11-hour shift on a mid-winter night.

True, it was not ordinary or usual for the applicant to get out of his vehicle and help remove another vehicle from his path. Indeed, he had never done so before, nor has he done so since. However, as the applicant points out, the supreme court has said:

The test, according to the statute, is not whether the accident and injury were ordinary and usual. The trial court adopted the following interpretation, in which we concur, of the statutory terms:

The words 'in the ordinary and usual way clearly refer to the mode and route of transportation and ambulation,...'

Cemlak v. Industrial Commission, 27 Wis. 2d 552, 556 (1965).

In Cemlak, the injured worker, Ms. Cemlak, was driving into the parking lot when she was involved in a fender bender. As she and two other workers tried to pull the cars apart, the other workers let go leaving Ms. Cemlak with all the weight causing her to hurt her back. Certainly it was not ordinary and usual for Ms. Cemlak to get out of her car to help pull two vehicles apart, any more that it was ordinary and usual for the applicant here to get out his car to help remove a snowbound vehicle from his path. But, in both cases, the worker was injured on the employer's premises while going to or from work in the "ordinary and usual way."

The contrary cases cited by the respondent do not persuade the commission otherwise. Ide v. LIRC, 224 Wis. 2d 159 (1999) involved a worker who normally biked home or was driven by coworkers. However, on the date of injury, Mr. Ide borrowed the employer's truck and was injured while changing a tire on the vehicle on the employer's premises but after his shift ended. Clearly Mr. Ide, who had never before taken the employer's truck, was not coming or going in the normal way in terms of mode. The applicant in this case, by contrast, was leaving employment in his usual way--via his car in the employer's lot.

Dardanell v. DILHR, 37 Wis. 2d 249 (1967) involved a worker who was hurt on the employer's parking lot when, instead of going directly to her car, she walked to a coworkers car where she got a box and injured herself moving the box. The commission and the court held that the applicant was not going to and coming from her car in the ordinary and usual way due to the deviation to the coworker's car.

In Oscar Mayer Foods Corp. v. LIRC, 145 Wis. 2d 864 (Ct. App. 1988), a worker was injured while trying to climb over barriers in the employer's parking lot instead of going around them. Noting that the injured worker, who was 5'7" and weighed 245 pounds had only infrequently hopped the 30 inch barriers in the past, the court of appeals denied compensation.

However, both Dardanell and Oscar Mayer involved workers who were walking in the lot, but not on their ordinary and usual course. Neither involved an injury to a worker while trying to remove an obstacle in the way of their ordinary and usual course, occurring after the worker--like the applicant here--had gone directly to his or her vehicle to leave the employer's parking lot.

The commission appreciates that the supreme court has observed in discussing the language of current Wis. Stat. § 102.03(1)(c):

It is apparent that the legislature carefully chose its words and that, when it chose to extend the liability of the employer, it did not intend by this statute to extend coverage for any conduct that was unusual or extraordinary in terms of going to or from the employer's premises.

Dardanell, at 37 Wis. 2d 253-54. However, the commission declines to conclude that the applicant's actions were unusual or extraordinary, or anything more than a reasonable activity in leaving the employer's parking lot on his normal route under the circumstances. In short, the applicant has established that he sustained an injury arising from his employment while performing services growing out of and incidental to that employment. The next issue is the nature and extent of disability from the injury.

Pursuant to Dr. Pittinger's opinions, the applicant was temporarily totally disabled from February 17, 2006 to July 1, 2006 (19 weeks at $595.14 per week), totaling $11,207.66. Out of that amount $7,872.00 was paid as private short-term disability compensation by the respondent which was self-insured but administered by CIGNA. The respondent shall reimburse its administrator such amount. A balance of $3,435.66 is due the applicant from such temporary total disability compensation.

There is also some dispute about the interpretation of Dr. Pittinger's permanent partial disability rating. The surgical procedure included the biceps area. In addition, the applicant credibly testified that he occasionally feels pain up into his bicep area. Accordingly, permanent partial disability at the shoulder is appropriate. While Dr. Pittinger includes scarring as the basis for the permanent partial disability, such can result in permanent partial disability due to pain and/or restriction of movement. Accordingly, the applicant is entitled to a six percent permanent partial disability compensation at the right shoulder, 30 weeks at $252.00 per week, totaling $7,260.00.

Attorney James Meier is entitled to fees under Section 102.26, Stats., totaling $2,139.13 (which is 20 percent of the temporary total disability compensation due directly to the applicant and the permanent partial disability compensation).

Given the nature of the applicant's injury and the surgery to correct it, and in light of Dr. Pittenger's statement in his practitioner's report that further treatment could be expected, this order shall be left interlocutory to permit claims for additional temporary disability, permanent disability and medical expenses that may be sustained in the future.

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

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Eric Mursa, Eight thousand five hundred fifty-six dollars and fifty-three cents ($8,556.53) in disability compensation.

2. To the applicant's attorney, James A. Meier, Two thousand one hundred thirty-nine dollars and thirteen cents ($2,139.13) in fees.

3. To Cigna, the administrator of the employer's self-insured short-term disability plan, Seven thousand eight hundred seventy-two dollars and no cents ($7,872.00) for credit to the employer's plan.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed December 26, 2007
mursaer . wrr : 101 : 6  ND §§ 3.17, 3.19

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The ALJ found for the applicant based on the commission's holding in Stoner v. City of Milwaukee, WC claim no. 2002-001089 (LIRC, September 25, 2003). That case, relying in part on the authoritative treatise 2 Larson, Workers' Compensation Law § 27.02[2], involved a City of Milwaukee paramedic who was injured while assisting a disoriented woman on a freeway off ramp while driving to work. Stoner and Professor Larson's treatise might well support an award under a good will or Good Samaritan theory in this case, particularly as the employer's own plowing was responsible for the other vehicle's difficulty in crossing the ridge of snow. However, the commission concludes the Good Samaritan analysis is not necessary here, because as explained above, the applicant was injured on the employer's premises while going from employment in the ordinary and usual way, and therefore his injury is compensable under Wis. Stat. § 102.03(1)(c)2.

The respondent raises two other issues. The applicant's doctor rated permanent partial disability at the whole arm, and the respondent insists the rating should have been at the elbow. As the ALJ explained, the applicant's biceps was injured, not his elbow joint, and the doctor's rating is for scarring at the surgical site not just loss of motion measured at the elbow. On this record, the commission declines to reject Dr. Pittenger's estimate of disability to the whole arm, which stands uncontradicted by the opinion or estimate of any other medical expert. Nor can the commission conclude that the doctor did not adequately explain his rating--he specifically based it on loss of motion and scarring--absent a contrary expert opinion.

Lastly, the respondent objects to the ALJ order that the respondent reimburse the administrator of the employer's self-insured non-industrial disability fund for payments made to the applicant during periods he was temporarily disabled. The respondent suggests it should simply get a credit for the non-industrial disability payment. However, the worker's compensation insurer is liable for the disability award, and to allow it a credit for payments made by the employer's short-term non-industrial plan would appear to permit divided or partial insurance, contrary to Wis. Stat. § 102.31(1)(b).

More directly, Wis. Stat. § 102.30(7) provides for direct reimbursement for payments made under a non-industrial insurance policy, not a credit to a worker's compensation carrier. The commission has no equitable jurisdiction, and cannot fashion a credit to a worker's compensation insurer from a statute providing for reimbursement of a non-industrial insurer or self-insurer.

cc:
Mr. James Meier
Mr. William Ehrke

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(1)( Back ) As to the interchangeable use of the phrase "performing services growing out of and incidental to his or her employment" and the phrase "course of employment," see Ide v. LIRC, 224 159, 169, § 16 (1999)(noting further that both phrases refer to the time, place, and manner under which the injury occurred.)

(2)( Back ) As the employer had set up diagonal parking, however, it is reasonable to assume there was a single expected direction a vehicle would go in the aisle--that it was a one-way lane.

uploaded 2008/02/04