ALAN M MARTENS, Applicant

VILLAGE OF ALLOUEZ, Employer

LEAGE OF WIS MUNICIPALITIES MUTUAL, 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 January 20, 2011
marteal : 175 : 5 ND6 3.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining there is a legitimate doubt as to whether the applicant's work activities on August 25, 2009, caused his myocardial infarction. The applicant testified that while working as a paid on-call firefighter on August 25, 2009, he began to feel pressure as though someone was pressing a finger into his chest and subsequent testing revealed he suffered a minor myocardial infarction. The applicant states in his petition for commission review he suffers from diabetes and high blood pressure which he has had for many years, and because he was on duty when the heart attack occurred, he believes his claim should have been approved. However, the administrative law judge appropriately noted the applicant's treating physician, Dr. Freeman, prepared a return to work recommendation on October 21, 2009, where he determined the applicant's injury was not work-related. Dr. Freeman stated on September 28, 2009, though associated with the stress of firefighting, myocardial infarction could occur with any stress and everyone has stress, and hence he felt the applicant was going to have an event and there was no direct precipitation.

Subsequently on December 16, 2009, Dr. Freeman stated the applicant asked him to state that the temperate humidity and the stress, both physical and mental, of a fire call on August 25, 2009, could have been a factor in triggering his myocardial infarction, and that certainly is a reasonable conclusion. Dr. Freeman subsequently completed a WKC-16-B dated January 25, 2010, in which he checked the box for direct causation for the applicant's myocardial infarction on August 25, 2009, and refers to his letter dated December 16, 2009.

The administrative law judge appropriately noted Dr. Freeman's WKC-16-B report displays minimal confidence on the question of causation, and approaches the level of legal insufficiency in so far as it incorporates his letter dated December 16, 2009. Dr. Freeman's notes, as well as his WKC-16-B, are certainly ambiguous on the question of causation.

Dr. Zwicke, who reviewed the applicant's medical records on behalf of the employer, stated in her report dated July 27, 2010, the applicant's work as a volunteer firefighter for the employer did not cause his trivial myocardial infarction between August 25 and August 26, 2009. Dr. Zwicke stated coronary artery disease is a naturally occurring disorder of aging and the presence of numerous cardiac risk factors including poorly controlled hypertension and diabetes along with a genetic predisposition. Dr. Zwicke found the applicant's work for the employer did not precipitate, aggravate or accelerate a preexisting condition beyond its normal progression.

The administrative law judge credited Dr. Zwicke's assessment. 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. Therefore, given the ambiguity in Dr. Freeman's assessment of causation for the applicant's myocardial infarction, and based on Dr. Zwicke's assessment, the evidence was sufficient to raise a legitimate doubt the applicant's work activities on August 25, 2009, caused his myocardial infarction. Therefore, the administrative law judge appropriately dismissed the applicant's claim with prejudice. The commission notes, however, if the case arose under Wis. Stat. § 40.65(2) and Wis. Stat. § 891.45 a presumption would arise that the coronary disease is employment connected. However, this case arose under Wis. Stat. ch. 102 where no such presumption applies.

cc: Attorney Sean M. Spencer

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2011/03/17