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

JASON MAASKE, Applicant

SMI INC, Employer

WEST BEND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-022533


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 March 27, 2008
maaskja : 175 : 9 ND §§ 3.12, 3.14, 8.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant sustained an injury arising out of his employment with the employer while performing services incidental to and growing out of that employment on April 22, 2004. The employer contends the applicant was not injured while in the course of his employment, but rather was engaged in a deviation due to a dispute with a co-worker, Mr. Vande Moore, which resulted in his injury. The employer contends that the applicant seriously deviated from his employment and completely abandoned his job duties when he confronted Mr. Vande Moore holding a shovel over his shoulders. The employer states that though verbal banter may have been part of employment with the employer, physical confrontations were not part of his employment and could not be expected to be part of the employment.

However, the applicant denied that he had physically confronted Mr. Vande Moore during a verbal dispute on April 22, 2004. The evidence indicates that the applicant and Mr. Vande Moore, as well other employees, engaged in verbal banter on a common and daily basis with the employer. The applicant testified that on April 22, 2004, he was performing his normal work checking the mason's mud boards in order to assess how he and the masons might best be able to use up the available mud at the time he approached Mr. Vande Moore's location on the scaffolding.

The applicant admitted that he was angry but denied that he raised his voice. The evidence indicates that Mr. Vande Moore had thrown a brush as well as a metal jointer at the applicant after a verbal exchange. The applicant held his shovel waist high with the balance of the shovel directly down with the metal face about one foot from the ground. The applicant denied that he held the shovel above his shoulder or in a threatening manner to Mr. Vande Moore. The evidence indicates that the applicant asked Mr. Vande Moore what his problem was, and as he approached the scaffolding Mr. Vande Moore jumped down and landed on the applicant, causing an injury.

The evidence does not indicate the applicant deviated from his employment during this period but rather continued to perform his normal work as a mason tender. Further, it does not appear that the applicant was the aggressor in causing the altercation which led to his injury. Rather Mr. Vande Moore threw two items at the applicant and did hit the applicant with the brush, and subsequently jumped down onto the applicant causing injury.

The administrative law judge appropriately noted that Mr. Smith, a foreman, and Mr. Warner, a co-worker, were not credible witnesses of the events on April 22, 2004. Mr. Smith admitted in his testimony that he lied in his report to the law enforcement officers at the time of the incident so that no one would have to go to jail. In addition, there were several inconsistencies in Mr. Warner's testimony. The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The evidence indicates that Mr. Vande Moore was the aggressor in causing the applicant's injury.

In addition, the employer contends that it was denied due process in this matter when the administrative law judge issued a bench decision after hearing the testimony and evidence because the administrative law judge did not fully assess the credibility of all witnesses, and requests a remand on the basis the employer did not have a chance to argue about what the credibility determinations regarding the witnesses should have been. However, the employer and the applicant were given the opportunity to testify and present witnesses on their behalf and the issues were clearly presented at the hearing. There has been no reason put forth or found to order further hearing in this matter. The employer has not been denied due process by the administrative law judge's order upon completion of the hearing process. Given the applicant's credible and consistent testimony of the nature of the incident leading to his injury on April 22, 2004, and given the employer's tolerance for verbal bantering in the workplace, and given the inconsistencies in the testimony from Mr. Smith and Mr. Warner, as well as Mr. Vande Moore on the nature of the circumstances that occurred leading to the incident on April 24, 2004, the evidence was sufficient to establish that the applicant suffered a work injury arising out of his employment with the employer while performing services incidental to and growing out of that employment on April 22, 2004.

cc:
Attorney Carl Dubin
Attorney Joseph Danas



Appealed to Circuit Court. Appeal dismissed, July 11, 2008.

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