GREGORY J SCISSOM, Applicant
DEPT OF CORRECTIONS, Employer
DEPT OF ADMINISTRATION, 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
May 31, 2011
scissge . wsd : 101 : 5 Duty Disability/40.65
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This is a duty disability case which presents two issues. The first issue is whether the applicant in fact sustained the injury on which his duty disability claim is based. The second is the effect, if any, the employer's failure to timely provide the Department of Employee Trust Funds (DETF) with a certification concerning the applicant's injury has on the applicant's claim.
a. Did the applicant sustain the injury?
At the August 2010 hearing, the applicant testified that, after running about an eighth of a mile to respond to a team call in "A-unit," he twisted his back and heard a pop as he pulled open a 400-pound metal door to the unit. Transcript, p. 14. He testified that because his adrenaline was flowing, he proceeded to the call anyway. He did not actually participate in subduing the inmate when he got there. Transcript, p. 26.
In the duty disability application the applicant completed on August 26, 2008, the applicant described the injury as follows:
On 6-13-08 while responding to an all call over the radio, I ... ran down
Main Street, pulling on 400-pound doors and running twisting and jaring my back resulting in injury to my back.
However, the applicant gave a somewhat different version of events the first time he saw a doctor on June 16, 2008, three days after the alleged injury. On that day, the applicant saw Bruce A. Polender, M.D., to whom he relayed the following history:
On Friday the 13th of June Mr. Scissom was involved with what is called a team call where he has to go with some other correctional officers and break up a fight or some type of conflict in the prison. He then had a second team call and then later on had to suit up for a possible altercation and suiting up is a fairly involved problem. By the next day he was stiffened up and is now having pain in his low back and has missed work today, the 16th of June.
Exhibit 3, p. 41 of 44.
On June 16, 2008, the applicant also completed a "case record" apparently as part of his medical treatment that date. The case record describes his injury as:
While running my back twisted at the trunk causing an injury resulting in reinjury of the spine.
Exhibit 7.
The applicant completed an incident report on June 17, 2008. In that report, he gave the following description of the incident:
On the above date and time I ... ran to A-unit after hearing an all call over the radio, pertaining to a fight that broke out in A-unit. During this time I twisted the trunk of my back with a jaring motion from running to the unit, not realizing it at the time I must have injured my back, because the next day when I woke up, my back was stiff and throbbing. After taking an Ibuprofen I realized that the pain was not getting any better. I made an appointment with my doctor and called in sick on 6-16-08...
Exhibit 7.
On June 17, 2008, the applicant also signed an "Employee workplace injury or illness report," a separate form. It states that the applicant injured himself by
"Quick movement responding faster than normal. By running at a faster pace."
Exhibit 7.
The commission agrees with the ALJ that the varying ways that the applicant describes the injury give rise to a legitimate doubt about whether it actually occurred at work. The applicant's testimony, the injury reports, and the treatment record are at odds about whether he twisted his back running, or opening the door, or both. More troubling is the applicant's testimony about experiencing a "pop" when he opened the door. This is a significant detail omitted from the written reports and medical treatment records, including the description of the injury by his doctor on May 16, 2008 and the duty disability application filed on August 26, 2008.
Beyond that, the initial reports and treatment record indicate that the applicant did not experience the onset of pain until the next day, not at the time of the incident or later in the day as his hearing testimony implied. Indeed, the early records indicate that he assumed he injured his back while running to respond to the call when he woke up the next day in pain. Again, this is inconsistent with the applicant's hearing testimony that he actually experienced a pop or jarring sensation while opening the door.
Moreover, the ALJ who observed the applicant as he testified, could not credit his hearing testimony when confronted with these inconsistencies. Given the inconsistencies, the commission, like the ALJ, concludes that the applicant has failed to meet his burden of establishing beyond a legitimate doubt(1) that he injured his back while working on June 13, 2008.
b. Failure of employer to respond to DETF's request for certification.
The next issue is the procedural issue raised by the applicant involving the failure of the employer to timely respond to DETF's request for a certification concerning whether the employer believed that the applicant had a duty disability.
Duty disability, which is administered by both DETF and the Department of Workforce Development, is governed by Wis. Stat. § 40.65. The procedure governing the claims is set out in part at Wis. Stat. § 40.65(2)(b) which provides:
40.65(2) (b)1. This paragraph applies to participants who first apply for benefits under this section on or after May 3, 1988.
2. An applicant for benefits under this section shall submit or have submitted to the department an application that includes written certification of the applicant's disability under sub. (4) by at least 2 physicians, as defined in s. 448.01 (5), who practice in this state and one of whom is approved or appointed by the department, and a statement from the applicant's employer that the injury or disease leading to the disability was duty-related.
3. The department shall determine whether or not the applicant is eligible for benefits under this section on the basis of the evidence in subd. 2. An applicant may appeal a determination under this subdivision to the department of workforce development.
4. In hearing an appeal under subd. 3., the department of workforce development shall follow the procedures under ss.102.16 to 102.26.
5. The department shall be an interested party in an appeal under subd. 3., and the department shall receive legal assistance from the department of justice, as provided under s. 165.25 (4).
The requirement of an employer statement in Wis. Stat. § 40.65(2)(b)1 is fleshed out somewhat at Wis. Admin. Code § § ETF 52.06(7) and (8) which provide in part as follows:
52.06(7) REQUIRED EMPLOYER CERTIFICATION. (a) For each application for duty disability benefits, the department shall obtain from the employer one of the following:
1. A certification that the applicant is disabled as described in s. 40.65 (4), Stats., indicating the specific criterion under s. 40.65 (4) (c), Stats., which has been satisfied, and an admission that the injury or disease leading to the disability was duty-related.
2. A statement that the employer believes the applicant does not qualify for duty disability benefits and the general basis for that belief.
...
(8) DENIAL AND APPEAL OPTION ABSENT EMPLOYER RESPONSE. If the employer fails, upon request of the department, to provide either the certification or the statement required by sub. (7), the department shall deny the application. The department shall allow the employer at least 30 days to respond to its request and may grant reasonable extensions of time to the employer.
In this case, DETF sent the applicant's employer an "Employer Certification - Duty Disability," form ET-5326. The file(2) indicates that the employer failed to return the required certification within the required time because it was investigating the applicant's claim. Indeed, documents in the file include e-mail correspondence indicating that the employer's official who was investigating the claim asked DETF for more time to provide the certification. Apparently, having received an extension, the employer still failed to submit the certification. Ultimately DETF denied the claim, presumably under Wis. Admin. Code § ETF 52.06(8).
The applicant now contends that the employer should have been prevented from appearing before ALJ Endter due to its failure to respond to the certification request. More specifically, the applicant argues that the failure to file an answer should have resulted in a default judgment against the employer under Wis. Admin. Code § DWD 80.05(2).
However, that administrative code provision deals with failure to answer an application for hearing. In this case, the applicant filed an application for hearing in September 2009 after DETF denied his request for duty disability. The application for hearing was served on the employer on October 8, 2009, and the employer did, in fact, file an answer to that application on October 15, 2009. Thus, Wis. Admin. Code § DWD 80.05(2) does not actually apply.
Further, that code section states that an ALJ may issue a default order without hearing if the employer fails to answer, not that a default order must be issued. In this case, the applicant did not raise the issue of the employer's failure to provide the certification until after ALJ Endter heard the matter and issued her decision. Consequently, she did not address Wis. Admin. Code § 80.05(2). Indeed, the employer reasonably asserts that the applicant waived any right to argue for a default by not raising it earlier.
Beyond that, of course, is the fact that neither the statute nor the administrative rule dealing specifically with the requirement of the employer certification provide for a default order against the employer in the event that the employer fails to provide the certification. To the contrary, Wis. Admin. Code § ETF 52.06(8) states that if an employer fails to provide the certification, DETF must deny the employee's duty disability claim. Given that provision, it seems unreasonable to reverse that rule-required result and issue a default order allowing the duty disability claim simply because the applicant subsequently appealed to the department under Wis. Stat. ch. 102.
cc:
Attorney Mark McCabe
Attorney Jonathan Nitti
Attorney David Nispel
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