PAMELA JOHNSON, Applicant
UNITED HEALTH CARE SERVICES INC, Employer
FIDELITY & GUARANTY INS CO, Insurer
United Healthcare Services, Inc. and Fidelity & Guaranty Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 19, 2009. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained an injury arising out of and in the course of her employment on May 30, 2008, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:
The applicant, whose birth date is August 28, 1954, began working for the employer on or about November 12, 2007. On May 30, 2008, she parked in the employer's parking lot after returning from lunch and walked to the employee entrance in the back of the building. She thereupon realized that she did not have her employee ID card, and needed to go around to the front of the building to be admitted into it. She chose to walk on a paved asphalt surface that wrapped around one side of the building, and she testified at the hearing:
"I was walking around the building and I just fell. I just went flying forward and fell." (Hearing Transcript, p.7)
At the hearing the applicant could not explain what happened to cause her fall. She indicated that there were no obstacles in her way and that she does not know of anything slippery that was on the paved surface.
The applicant sought medical treatment that same day with Dr. Kerry S. Dernbach, a podiatrist, and an x-ray of her right foot showed a nondisplaced fracture of the fifth metatarsal. Dr. Dernbach provided her with a CAM boot and crutches. He took a history of the applicant walking outside her work when she "...stepped on something, lost control, and felt significant pain and discomfort in her right foot as it turned in."
The applicant also saw Dr. Jeffrey F. Kessel, M.D., on May 30, 2008. Dr. Kessel took the following history:
"...the patient was walking around the building to enter to attend a meeting. Her ID was not in her purse, and she was unable to get into that particular door. She needed to walk around to the other side of the building to enter the front door. She was walking very quickly, as she was in a rush to make the meeting. She was walking on a blacktop parking lot as she was walked around (sic) to the front of the building when she tripped on something and fell forward onto her hands and knees. She was wearing 3-inch platform shoes."
The applicant agreed at the hearing that in her recorded statement given to the insurance company on June 13, 2008, she indicated she was wearing half-inch sandals when she fell. She also indicated in that statement that she "tripped and fell," but that she could not "say specifically" what happened because it happened "so fast."
Dr. Dernbach referred the applicant for follow-up to Dr. Toni Jo Neal, another podiatrist. On June 26, 2003, Dr. Neal took a history of the applicant falling after "...she lost her footing on an uneven and rippled asphalt parking lot at her place of employment." Dr. Neal completed a WKC-16-B dated January 20, 2009, which found work causation and assessed permanent partial disability of " Dr. Dernbach completed a WKC-16-B dated January 5, 2009, which found work causation but deferred to Dr. Neal for permanency.
The applicant telephoned Dr. Neal's office on June 24, 2009, and asked for an assessment of percentage of permanent partial disability. A note was generated from someone in the office with the initials "MN" that indicates Dr. Neal assessed three percent permanent disability, but again without any indication of where on the lower extremity that assessment should be applied. The photocopied note includes a photocopied signature from Dr. Neal.
Respondents do not assert that the applicant's fall was idiopathic. Rather, they assert that it was an unexplained fall, and note that Wisconsin law provides that unexplained falls are not compensable. Briggs & Stratton Corp. v. ILHR Dept., 43 Wis. 2d 398, 404, 168 N.W.2d 817 (1969); Kraynick v. Ind. Comm., 34 Wis. 2d 107, 110, 148 N.W.2d 668 (1967); Nielsen v. Ind. Comm., 14 Wis. 2d 112, 116-17, 109 N.W.2d 483 (1961).
The commission has carefully considered the evidence presented in this matter, and infers that the applicant's fall is explained by her foot catching on the rough asphalt surface, or by a slip caused by stepping on a foreign object on that surface, as she was hurrying on her way to the employer's front door.(1) It is inferred that the applicant's memory of exactly what occurred in the work incident has faded since the date of the incident, and that the incident happened so fast that she was uncertain as to whether her foot caught on the surface or slipped on a foreign object on that surface. However, the clinic notes from Dr. Dernbach, Dr. Kessel, and Dr. Neal, together with the applicant's June 2008 statement to the insurer's representative that she "tripped and fell," lead to the inference that one of these two possible explanations for her fall is what actually occurred. Either the asphalt surface on which the applicant was walking was rough enough for her foot to catch on that surface and cause her to trip and fall; or there was a foreign object on the asphalt that she stepped on, causing her to fall. The incident happened in an instant, as is commonly the case with a fall, and this fact has added to the applicant's confusion over how to describe what occurred. Nevertheless, the fact that all three medical providers described the fall as having been caused by contact with a rough asphalt surface, or something on that surface, leads to the inference that in the weeks closest to the incident the applicant did recall and relate to those providers an explanation for her fall. She may have been uncertain as to whether she tripped over rough pavement or on a foreign object on the pavement,(2) but she knew that it was one or the other. Her honest inability at the hearing to identify which of these scenarios caused her fall is inferred to have been due to confusion and faded memory.
The commission therefore finds that the applicant's fall on the employer's premises on May 30, 2008, arose out of and in the course of her employment with the employer, and resulted in a nondisplaced fracture of the fifth metatarsal in her right foot. No temporary disability was claimed because the injury did not cause the applicant to lose time from work.
With regard to the issue of permanency, no opinions were submitted from Dr. Kessel or Dr. Dernbach. As previously noted, in his January 2009 WKC-16-B Dr. Neal assessed permanency of less than 5 percent, but did not indicate where on the applicant's right lower extremity that permanency was to be assessed. In the photocopied clinic note dated June 24, 2009, which is of questionable evidentiary competence, three percent permanency is assessed, but again without indication of where on the lower extremity it should be assessed. The injury sustained was a nondisplaced fracture of the fifth metatarsal bone of the right foot, which is a scheduled injury under Wis. Stat. § 102.52(14)(g), with maximum compensation of 20 weeks of permanent partial disability. Dr. Neal's January 2009 WKC-16-B indicated that he last saw the applicant on August 1, 2008, but the latest clinic note from Dr. Neal submitted into evidence is dated July 10, 2008. In it Dr. Neal indicated:
"Patient to slowly transition out of rocker bottom shoe to into regular shoe gear. She was shown how to wrap foot and ankle with coban for better fit in shoe. She should take 10-14 days to return full time to regular shoe gear and start activited (sic) slow. RTC 3 weeks to monitor progress."
Accordingly, there is no credible medical support for a finding that the injury caused any permanent partial disability beyond the fifth metatarsal of the right foot. Based on Dr. Neal's assessment of less than five percent permanent partial disability in his WKC-16-B, and the June 2009 note referring to three percent permanent disability, the commission finds that the applicant sustained three percent permanent partial disability at the fifth metatarsal bone of her right foot, entitling her to .6 of a week of permanent partial disability at the applicable rate of $ 272 per week, for a total of $ 163.20.
Reasonably required medical expenses are due in the amount of $ 468.37 to be reimbursed to United Healthcare; and $ 1,059.36 to be reimbursed to the applicant for treatment and mileage expense that she paid out of pocket.
Dr. Neal indicated that future treatment may be required for functional foot orthosis, and for that reason the order shall be interlocutory with respect to future medical treatment.
NOW, THERFORE, this
The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant compensation for permanent partial disability in the amount of One hundred sixty-three dollars and twenty cents ($163.20); to United Healthcare reimbursement in the amount of Four hundred sixty-eight dollars and thirty-seven cents ($468.37); and to the applicant as reimbursement for treatment and medical mileage expense the sum of One thousand fifty-nine dollars and thirty-six cents ($1,059.36).
Jurisdiction is reserved with respect to the possibility of future medical treatment.
Dated and mailed May 26, 2010
johnspa . wrr : 185 : 5 ND § 3.34
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In the commission's consultation with the administrative law judge he indicated he found the applicant to have been a credible witness, and referred the commission to his decision for an explanation of his findings. His decision makes it clear that he was unwilling to adopt any of the histories of the work injury set forth in the practitioner's clinic notes, because the histories were inconsistent with each other, and because the applicant's hearing testimony did not support those histories. The commission inferred that the histories were consistent to the extent that they each describe a work incident in which the applicant lost her footing due to a trip on rough asphalt, or due to stepping on a foreign object on the asphalt. At the hearing, the applicant was unable to relate which of these scenarios was accurate, but the commission inferred from the clinic notes and from the applicant's statement to the insurer given on June 13, 2008, that one or the other of them was accurate.
The commission reversed the administrative law judge's finding of three percent permanent partial disability at the right ankle due to lack of credible medical support for such finding, as explained in the above commission findings.
cc:
Attorney Luke Kingree
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]