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

JUDY R SCHULTZ, Applicant

DEPT OF HEALTH & FAMILY SERVICES, Employer

DEPT OF ADMINISTRATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2010-026442


In November 2010, the applicant filed a hearing application for hearing seeking compensation for a left humerus fracture and right knee meniscus tear sustained in a fall at work on October 6, 2010. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 6, 2011.

Prior to the hearing, the self-insured employer conceded jurisdictional facts and an average weekly wage at the statutory maximum. At issue was whether the applicant sustained a compensable injury on October 6, 2010. If a compensable injury were found, the self-insured employer stipulated to a period of temporary total disability from October 6 to November 8, 2010, and permanent partial disability at five percent compared to loss of the leg at the knee.

On April 25, 2011, the ALJ issued a decision dismissing the hearing application. The applicant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1951. She began working for Sand Ridge Treatment Center, a secure facility operated by the state Department of Health and Family Services, in August 2004. She is a senior treatment provider.

On August 6, 2010, the applicant fell while walking down a hallway at work. At the time, the applicant was pulling a metal cart with a wire basket containing files. The hallway floor was tiled over cement.

The applicant did not know exactly why she fell, though she had never had episodes of falling before for personal health reasons. She did recall, though, that when she fell "my right foot did not move like it was supposed to." She explained that "when I fell my right leg didn't go forward" and that "my right foot became stuck and I tripped over something."

Sandy Strait, another nurse at the employer's facility at Sand Ridge, testified that she investigated the fall and the applicant told her that she felt like her shoe stuck. Sandy asked the applicant if she fell because of the cart and the applicant:

said she did not trip over the cart. She did not say that the cart did not affect the fall.

The applicant's fall was record in surveillance video, and a copy of the surveillance is in the record as exhibit I. It shows the applicant walking down a hallway pulling a cart by her side with her right hand. The cart is shown swaying from side to side as the applicant pulls it, but the cart never actually touches the applicant or the adjoining wall. The video shows the applicant's right foot splaying to the right, and her foot becomes stuck or stopped, leading to her fall.

As a result of her fall, the applicant sustained a left proximal humerus fracture, a right lateral meniscal tear, and a right lateral femoral condyle chondral injury. She underwent a surgery on March 25, 2011, to repair the meniscus tear and chondral injury.

The issue in this case is whether the applicant sustained a compensable injury, or specifically, whether the accident or disease causing injury arose out of her employment with the employer, while she was performing services growing out of and incidental to that employment. See Wis. Stat. § 102.03(1)(a), (c)1, and (e). The respondent's position is that the applicant's fall is unexplained and noncompensable because it has not been shown to arise out of her employment.

An idiopathic fall--one that is due to a personal condition not caused or aggravated by employment--is not compensable. Peterson v. Industrial Commission, 269 Wis. 44, 49 (1955). Similarly, a truly "unexplained fall"--one attributable to neither an idiopathic cause nor a cause related to employment--is not compensable even if it occurs while a worker is performing services for an employer. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404 (1969). Rather, in order to show an injury that arises out of employment as is required under Wis. Stat. § 102.03(1)(e), the worker must generally show a fall explained by evidence of a cause related to employment. Id., at 43 Wis. 2d 406.

In Nielsen v. Industrial Commission, 14 Wis. 2d 112 (1960), a worker fell and hurt her wrist. She could not testify how she fell, or even if she slipped or tripped. She did not know whether the floor was slippery or unbalanced. The worker in Nielsen was regarded as having had a truly unexplained fall, and compensation was denied. Id., at 14 Wis. 2d 114-15. Similarly, in Brickson v. ILHR Department, 40 Wis.2d 694 (1968), a worker fell as she exited a restroom. While the worker in Brickson gave differing accounts of how she fell, there was evidence that she did not know what caused her fall, id., at 40 Wis. 2d 670, and compensation was denied. Likewise, in Durkee v. Marathon County, WC Claim No. 91-043764 (LIRC April 16, 1992), the commission found an unexplained fall on a clean terrazzo floor noncompensable, absent evidence that the floor was wet, slippery or littered. In Briggs & Stratton, by contrast, the worker testified her foot was "stopped" by something on the floor, which then caused her foot to fly out from under her. After the fall, she noted oil on her clothing and shoe, and metal around a machine. Id., at 43 Wis. 2d 401. Her injury was found compensable, as the facts provided an adequate explanation of what caused her fall.

In this case, there is no evidence that tiled floor on which the applicant fell was slippery, littered or wet. The supreme court has also declined to accept the contention that, in the absence of a special condition or circumstance, a level floor in a place of employment is a hazard or zone of special danger implicating the positional risk doctrine. Kraynick v. Industrial Comm., 34 Wis. 2d 107, 113 (1967)

However, there is also no evidence the applicant has ever had unexplained or idiopathic falls in the past.(1) In fact, she denied such falls. More importantly, when she fell, the applicant was pulling a cart that was swaying from side-to-side. While she did not trip over the cart, and while the cart did not run into her, the commission concludes after watching the video surveillance that the cart affected her balance. Third, it does appear that her foot definitely stopped on the floor. The commission is persuaded that the applicant's right foot stopped due to a misstep because of the swaying cart, so that the fall is explained by a cause related to employment. In sum, the applicant has shown a fall arising out of her employment with the employer, while performing services growing out of and incidental to that employment, rather than an unexplained or idiopathic fall.

The parties stipulated to the nature and extent of disability, assuming a compensable injury is found. Specifically, the applicant was temporarily and totally disabled from October 6 to November 8, 2010, a period of 4 weeks and 4 days. At the weekly rate of $815 (the statutory maximum for injuries occurring in 2010), the amount due in temporary total disability is $3,803.33. The applicant also sustained partial disability at five percent compared to loss of the leg at the knee. Applying the schedule at Wis. Stat. § § 102.52(11) and 102.55(3), this results in 21.25 weeks of permanent partial disability compensation at the weekly rate of $292 (the statutory maximum for injuries occurring between May 6 and December 31, 2010). The amount due in permanent partial disability is $6,205, all of which has now accrued.

The total disability compensation under this order, then, is $10,008.33 ($3,803.33 plus $6,205.00). The applicant agreed to the direct payment of an attorney fee, set at 20 percent of that amount under Wis. Stat. § 102.26. The amount due the applicant's attorney in fee within 30 days is thus $2,001.67 (0.20 times $10,008.33). The remainder, $8,006.67, shall be paid the applicant within
30 days as well.(2)

The last issue is whether to reserve jurisdiction. The applicant, again, sustained a meniscal tear and humerus fracture in the fall. Her meniscus repair surgery occurred only about two weeks before the hearing. Consequently, and pursuant to the understanding of the parties and ALJ at the hearing, this order shall be left interlocutory on all issues, other than liability and the specific temporary total disability and permanent partial disability claims decided hereunder.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed.

Within 30 days, the self-insured employer shall pay all of the following:

1. To the applicant, Judy R. Schultz, Eight thousand six dollars and sixty-seven cents ($8,006.67) in disability compensation.

2. To the applicant's attorney, John D. Neal, Two thousand one dollar and sixty-seven cents ($2,001.67) in fees.

Jurisdiction is retained for further orders and awards as are warranted consistent with this decision.

Dated and mailed
February 28, 2012, as amended March 22, 2012
schultz . wrr : 101 : 5 ND6 3.34, 3.35.

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He described the applicant as an honest and fair witness who was telling the truth from her perspective. He informed the commission that he had no demeanor impression regarding her testimony or that of the other witness. Rather, he explained, as he did in his decision, that his view of the videotape did not show why her foot stopped.

The commission, after watching the video surveillance, does not agree. The ALJ's decision acknowledges that before she fell the applicant's foot rotated slightly to the right before she fell. He described the cart as not swaying at that point. However, in the commission's view of the video, the cart was swaying or moving from side to side in an undulating manner the entire time the applicant was walking down the hallway. Again, the commission found it most probable that the movement of the cart affected the applicant's balance, causing her to misstep and fall.

 

cc: Attorney John Neal
Attorney David Hart



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Footnotes:

(1)( Back ) Prior falls and a medical condition to explain them were a factor consider in denying compensation in Kraynick, 34 Wis. 2d at 112, where the court noted:

Mr. Kraynick's previous medical record includes head injuries, cirrhosis, jaundice, and alcoholism, as well as some history of blackouts. With that medical background and upon all the facts of this case, the commission was not required to find that the fall arose out of the employment.

(2)( Back ) There is no claim for medical expenses.

 


uploaded 2012/05/08