AMELIA SOTO, Applicant
CITY OF MADISON, Employer
CITY OF MADISON, 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 24, 2012
sotoame : 150 : ND6 6 3.35
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant petitioned the ALJ's decision dismissing her applications based upon the finding that the three syncopal episodes involved did not arise from her employment.
Wis. Stat. § 102.03(1)(e) requires that the accident or disease arise out of the injured worker's employment with the employer. In Witkowski v. ARPS Manufacturing, Inc. and Transportation Insurance Company, WC Claim No. 86-37831 (LIRC May 6, 1988), the commission found that in order for the positional risk doctrine to be applicable, not only must the employment cause the applicant to be in a particular place at the particular time of injury, but the injury must be caused by a force not solely personal to the applicant; the force must occur through the agency of a third person, an outside force, or conditions constituting a zone of special danger. In Dumesic v. Carmax, WC Claim No. 2007-030617 (LIRC Nov. 9, 2009), the commission, in explaining idiopathic falls, provided the following example,
. . . if person with diabetes falls to the floor at work because of an insulin reaction unrelated to work duties and is injured in the fall, the fall may be regarded as idiopathic, or due to a solely personal force, and the injury caused by the fall would not be compensable. Such an accident or fall, even though occurring while a worker is performing services for an employer, does not arise out of employment as is required under Wis. Stat. § 102.03(1)(e). Similarly, an "unexplained fall," which can be attributed to neither an idiopathic fall nor a cause related to employment, is not compensable even if it occurs while the worker is performing services. [citing Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969)].
To support her claims, the applicant offered a WKC-16B completed by Dr. Deaton. Dr. Deaton did not provide any narrative support for her April 7, 2011 opinion but attached the applicant's medical records, directing attention to the materials by Dr. Alberte. It is clear from these materials that the applicant has had the benefit of being seen by a number of specialists:
While Dr. Alberte's notes reflect that the episodes were brought on by stress, a review of all the notes and the treatment which the applicant followed reflect that the stress is physical stress she imposes on her body being "ultra athletic," a vegan and an individual that does not hydrate herself. While this might lead to the belief that this is a pre-existing condition and the employer takes her "as is," yet there must still be an "injury arising out of the employment."
Further, Dr. Novom, a neurological specialist, explained that vasovagal syncope is not exertion related. See Dr. Novum's Supplemental Report, dated January 15, 2009, Exhibit 1. Dr. Ferguson, in a letter to Dr. Deaton dated January 23, 2009, (see Exhibit B), indicated that while the work episodes occurred on the night shift, they were in relatively nonstress work situations. He suggested a "tilt-table test" with an EPS cardiologist (Eckhardt) and referenced proper hydration and opined that the applicant was "overdoing" her physical activity.
Thereafter, the applicant underwent two "tilt-table" tests and Dr. Eckhardt stated:
For Amelia, her triggers are very clear and obvious. These include lack of sleep, dehydration, and possibly exacerbated by working night shifts. See Dr. Eckhardt's June 12, 2009 correspondence to Dr. Zwicke in Exhibit B.
After the second "tilt-table," Dr. Eckhardt, indicated that the symptoms from the earlier "tilt-table" test did not return, the applicant was negative for neurocardiogenic syncope and her treatment would be to continue the "intensive lifestyle modifications."
Thus, the commission affirms the dismissals in this matter; it agrees with the ALJ that the applicant has not met her burden to establish that the syncope arose out of her employment with the employer; instead it appears to be a condition solely personal to herself. See Leist v. LIRC, 183 Wis. 2d 450, 457 (1994).
The ALJ's decision is affirmed and the claims are dismissed.
cc:
Attorney Amanda Kaiser
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