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

TONY C KLATT, Applicant

CONAGRA FOODS PACKAGED FOODS LLC, Employer

CONAGRA FOODS PACKAGED FOODS LLC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-035969



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.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed May 28, 2009
klattto : 185 : 5 ND § 3.34

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant's testimony concerning what occurred in the work incident of October 17, 2007, is credible. The applicant made a 90-degree turn on the "aggressive" floor surface that did not allow his left foot to move freely with the turn. The floor surface did constitute a zone of special danger, and as credibly opined by Dr. McNally, the result was a precipitation, aggravation, and acceleration of the applicant's preexisting knee condition beyond normal progression. The applicant credibly testified that in his description of the work incident, given to Dr. McNally, he informed that physician that: "I told him I twisted my knee, yes."(1)

The respondent asserts that it was denied due process, because it allegedly did not know until the date of hearing that the applicant would implicate the floor surface as being causative of his knee injury. However, the respondent was apprised of the applicant's assertion that: "The injury occurred when I came through a door at work and turned around a 90-degree angle and [as] I was taking my next step to go in a straight line I felt some pain in my knee."(2) Also, on page 4 of Dr. Orth's May 2008 report, that physician took a history of the applicant "...walking around a corner, going through a doorway, and when he turned he felt pain in his left knee and it gave way."

It is inferred from the applicant's testimony and the medical records that no physician questioned him concerning the composition of the floor surface, and that at the times of the applicant's medical treatment, it did not occur to him to give a detailed description of the floor surface. Nevertheless, the applicant's unrebutted testimony concerning the floor surface is significant in making the legal determination of a work-related injury. Knowing that the applicant's claim involved making a 90-degree turn on its production floor surface, the respondent should have been prepared to present evidence concerning that surface. In fact, its Safety, Security, and Worker's Compensation Manager, Angela Smart, gave testimony at the hearing that included acknowledgement that: "I know where he was in the Hassia department. I know where he worked."(3) Accordingly, it is inferred that Ms. Smart had the knowledge and ability to rebut the applicant's testimony regarding the floor surface, had there been anything inaccurate about that testimony. She did not offer any rebuttal, and there was no due process violation.

 

cc: Attorney Steve M. Jackson
Attorney Douglas M. Feldman


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Footnotes:

(1)( Back ) Hearing transcript, page 30.

(2)( Back ) This quote is taken from the applicant's January 2008 application for hearing.

(3)( Back ) Hearing transcript, page 51.