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

JAMES H BAUER, Applicant

AMBASSADOR ENTERPRISE LLC, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2010-012946


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.

ORDER

The findings and order of the administrative law judge are affirmed. The application is dismissed.

Dated and mailed
 July 26, 2012
bauerja : 150 : 9 ND6 3.35

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The applicant petitioned the ALJ's decision dismissing his application for worker's compensation benefits for a serious fall at work on May 13, 2010, resulting in a traumatic brain injury, hearing loss and significant medical bills and continuing medical conditions. The applicant argues that the event was a covered injury and questions the fairness of the hearing process, the ALJ's treatment of him and also raises concerns regarding the respondent's witness.

The applicant argued that the outcome of his case was decided prior to the hearing and, in support of this, references a pre-hearing conference with another ALJ. The file reflects that a pre-hearing conference was conducted by telephone on August 19, 2011. If an applicant is not represented by an attorney, the Division will generally schedule a pre-hearing conference after an application for hearing is filed. The purpose of this conference is to permit the parties to discuss the claim informally with an ALJ. Typically, the ALJ will attempt to have the parties identify conceded and disputed issues and to encourage the parties to agree on exhibits which may be introduced at a hearing. A formal hearing is scheduled at a later date if the parties cannot resolve the case at a pre-hearing conference. In this case, ALJ Lake sent a letter to the applicant advising him of her concerns regarding whether his injury arose from the employment and that he should contact the department if he still wished to move forward with a hearing. The applicant sought a hearing and a different ALJ was assigned to hear the matter. Although the applicant appeared representing himself, there is no evidence that he was not given an opportunity to present the material evidence in this matter. In terms of the hearing process, given the respondent's position that that the injury did not arise from the employment, the ALJ's decision to initially limit the evidence at the hearing to that issue and, then, if found in favor of the applicant, to deal with the nature and extent of liability issues, was reasonable. Further while the ALJ may have been abrupt in his rulings, instructions and questioning of the witnesses, his actions were not improper; for example, it was important for questions to be completed prior to answering. Also, despite applicant's argument, the transcript reflects that respondent's witness, Schneider, was sworn before her testimony. Additionally, while Schneider was not present on the date of the event, her testimony was for the purpose of identifying the surveillance video evidence and, as such, it was material. The applicant did not argue that the video was altered in any way. Finally, the commission assures the applicant that it has carefully reviewed the record of this matter impartially.

The primary issue to be addressed by the ALJ was the question of whether the applicant's injury "arises out of" the employment; this is a requirement for liability under the Worker's Compensation law. See Wis. Stat. § 102.03(1)(e). In order for an injury to be found to arise from the employment, the injury cannot be idiopathic -- meaning solely due to conditions personal to the applicant and must be explained by a cause related to the employment or arise in a zone of special danger. See, generally, Kraynick v. Industrial Comm., 34 Wis. 2d 107 (1967) and Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). In Dumesic v. Carmax, WC Claim No. 2007-030617 (LIRC Nov. 9, 2009), the commission explained,

. . . An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work, not due to any hazard or danger of employment, but instead due to a disease, physical disability, or condition personal to the injured worker. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). For 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. Id.

The commission is sympathetic to the applicant's situation and frustration with understanding how this terrible event could happen but worker's compensation benefits are not awarded on this basis alone. The assertion, that his fall arose from the employment- namely a slip on the purportedly wet floor mat, is clearly contradicted by the surveillance video. The video shows the applicant beginning to slump while standing still and, falling to the ground without any reaction or attempts to minimize the damage of the fall. There is nothing to support a finding of a cause related to the employment given this evidence. The fall was unexplained and was not within a zone of special danger.

Thus, the dismissal with prejudice is affirmed.

 

cc: Attorney Matthew Siderits


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