DOVIE PATTENGALE, Applicant
WEST ALLIS MEMORIAL HOSPITAL INC., Employer
SENTRY CASUALTY CO., 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, and following a consultation with the ALJ, the commission makes the following:
As of June 4, 2010, the applicant worked 33 years as a certified nursing assistant (CNA) for the respondent, a hospital. She was 85 years old and worked part-time, with an average weekly wage of $360.00. She had no history of fainting, seizures, or blackouts.
On Friday, June 4, 2010, the applicant reported to work at 6:30 a.m. Approximately three hours into her shift, she left her fourth floor work area to take a coffee break in the respondent's cafeteria on the lobby level. In order to get to the lobby level, she took the respondent's elevator. When the doors opened and she began exiting the elevator, she fell hitting her right knee and left shoulder onto the floor. Besides the applicant, no one witnessed the event. The applicant taken by wheelchair to the respondent's "Employee Health" area to complete an incident report prior to treatment in the respondent's emergency department.
On the incident report completed shortly after the event, the applicant indicated that her shoes stuck to the floor getting off the elevator and she fell forward. She denied any unevenness in the floor from elevator to tile lobby floor, and denied any water or debris on floor.
The emergency department record reflects in the narrative "TRIAGE NOTE" that the applicant's shoes stuck to the floor as she was getting off the elevator; in the "Mechanism" of injury section, "tripped" was circled (left unmarked were the options of: unsure, slipped, lost balance and possible syncope).
On June 7, 2010, the applicant was treated by her own provider at the Greendale clinic and staff notes reflect that the applicant explained, she was
not certain if she had her toe caught on the crack between the elevator door and the floor or if her foot just stuck. Either way she fell forward hitting her right knee, left shoulder and left forearm.
On June 15, 2010, eleven days after the event, a representative of the respondent insurer interviewed the applicant by telephone. The applicant explained that June 4 was the first day that the applicant wore the Skecher open back Croc type shoes to work and that coworker's wore such shoes. The applicant indicated that she normally wore tennis shoes to work. In describing the injury the applicant stated, "I must have stubbed my foot or something, and I pitched forward, and that's all I can remember." When asked the specifics of where she was when she fell, the applicant explained that she believed the fall occurred as she was getting out of the elevator, she "fell right away, you know stumbled and fell."
The applicant was notified that her worker's compensation claim was denied. Thereafter, on June 24, 2012, the applicant explained to her provider that she
became somewhat flustered when giving history. She gave me the history of that she felt that she tripped over the lip of the elevator shaft as she go out of the elevator. She apparently told someone else that her foot just stuck.
At the hearing, the applicant was uncertain if it was her right or left foot that got caught, speculating that it was her right. She testified that she was on the elevator, she was close to the door and tripped when she started out of the elevator. There was nothing sticking up from the floor and there was nothing about the flooring surface either inside or outside that she thought contributed to the fall. She did not know of anything sticky on the floor. In terms of the fall, she conceded, in cross, that all she remembered was "pitching forward."
In follow-up with the ALJ, the applicant testified that there was a lip or boundary between the similar surfaced elevator floor and lobby floor; she was uncertain how high the lip was and, ultimately, was not sure if she tripped on the lip or if her foot got stuck. See Transcript page 30.
Applicant's Exhibit A, the WKC-16-B, completed and certified by Dr. Bauer, sets forth the explanation of injury in the July 21, 2010 medical record (Exhibit B) as and apparent "trip or slip" as she was "stepping out of the elevator." The applicant fell to the floor striking her left shoulder and arm. While he opines that the injury should be compensated, he does not set forth any detail regarding whether the injury sustained would be consistent with a trip or slip.
Dr. Bauer, in an uncertified questionnaire, indicated that the applicant was temporarily totally disabled from her injury from June 4, 2010 until January 24, 2011, when he assigned her a 10% permanent partial disability rating for her left shoulder. However, the applicant has not returned to work and testified that she had retired.
The ALJ found that the applicant did not meet her burden to establish that her fall arose from her employment. The ALJ questioned the applicant's credibility given the differing descriptions of the nature of the event and injury and also was concerned by her June 24 description, which occurred after being notified that her claim had been denied and in which the applicant indicated that she had been flustered in giving prior statements. Ultimately, the ALJ concluded that the applicant did not know how or why she fell and did not establish that the elevator door opening posed a special danger - the floor surface was the same in the elevator as in the main floor (tile); the surface was clean and dry and was not established to be slippery or uneven.
The applicant petitioned for commission review.
At issue is whether the applicant sustained an injury arising out of her employment on June 4, 2010. Also at issue is the nature and extent of disability resulting from the alleged injury and liability for medical and mileage expenses. The applicant claimed compensation temporary total disability from June 4, 2010 to January 24, 2010. She also claimed compensation for ten percent permanent partial disability at the left shoulder. She requested an interlocutory order.
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/personal cause nor a cause related to employment--is not compensable even if occurs while a worker is performing services for an employer. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404 (1969). In order to establish that she was not injured by a force solely personal to her, the applicant must prove that her fall was not solely idiopathic or unexplained in nature. Kraynick v. Industrial Comm'n, 34 Wis.2d 107, 111, 148 N.W.2d 668, 670 (1967).
There was no evidence the applicant's fall was idiopathic. She was not was suffering from any condition solely personal to her that would cause such a fall. While respondent attempted to argue that the applicant's choice of footwear was the sole cause of the fall, the commission does not accept this. In particular, she had been working over three hours without a fall and the footwear was acceptable to the respondent for its staff, with the applicant testifying that other workers wore such footwear. The fact that she may have decided to give or throw the shoes away is not material given the above.
In terms of whether the fall was unexplained, in Briggs & Stratton Corp. v. DILHR, 43 Wis. 2d 398 (1969), the worker fell at work when she was slowly walking down an aisle in the employer's plant. The worker testified she fell when her right foot was stopped because of something in the aisle, which then caused her foot to fly out from under her leading to her injuries. Briggs & Stratton at 401. She could not identify the object which caused her to fall and another worker testified that he immediately checked the floor after the fall and did not observe anything in the aisle upon which she could have fallen or slipped upon. Id. at 401. However, along the sides of the aisle were machines that scattered aluminum chips and the worker testified that, after the fall, her arms were covered with oil and dirt and her shoes had oil on them. Id. at 401. The Wisconsin Supreme Court noted, in Briggs & Stratton, that there was no evidence that the worker's fall was idiopathic since she had no history of fainting or seizures. The court held that the fall must additionally be explained by evidence of a cause related to employment to be compensable. Id. at 405-406. In Briggs & Stratton, the worker knew how she fell, where she fell, and she knew what caused her fall, although she was not able to identify the precise object that stopped her foot. Id. at 407. The court in Briggs & Stratton found this evidence sufficient to sustain the applicant's burden that the fall was not idiopathic, and there was evidence of a separate and work-related cause being the stopping of her foot by an unidentified object.
In this case, the majority disagrees with the ALJ's conclusion that the fall was unexplained. Instead, the majority finds the applicant credible and has reached a differing conclusion regarding whether the applicant established that her fall was due to a cause related to the employment. In particular, the commission does not find the applicant's description of the event to be contradictory; the lack of precise phraseology is understandable given the trauma involved, the numerous times explanation was sought and the period that elapsed. All the descriptions involve a foot stopping in an abrupt fashion and a quick pitch forward and fall as she was crossing the elevator threshold. While the applicant did mention the elevator lip as a possible "sticking point" on June 24, she had mentioned concern about it earlier on June 7. The commission does not find this to be so inconsistent as to find her fall to be unexplained. In fact, the applicant's explanations of a trip, catch or stick are consistent with a "sticking" at that threshold where the applicant necessarily had to step over a gap in flooring and differing surfaces in order to exit the elevator. Further, unlike the case of Eckelberg v. Scientific Molding, WC Claim No. 1999-058179 (Dec. 20, 2001), where the commission affirmed a dismissal implicating a doorway, where applicant was not entirely consistent about how the fall occurred and testimony was provided that the applicant fell 10 to 15 feet from the doorway, the evidence in this matter is consistent that the applicant in this matter fell as she exited the elevator.
Thus, commission is persuaded that the applicant's foot stopped as she was exiting the elevator and the fall is explained by a cause related to employment, her foot catching on the elevator gap/lip threshold. 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.
Temporary total disability is due from June 4, 2010 with a return to work of January 24, 2011, 2 days and 33 weeks at $240.00 per week.
The respondent shall pay treatment expenses as provided on the WKC-3 form.
Also, Attorney Domer is entitled to a fee equal to 20% based upon the temporary disability award, 20% of $8,000.00 equals $1,600.00, plus costs of $94.86, totaling $1,694.86.
The commission directs the respondents to pay the applicant: four hundred thirty-two dollars and forty-six cents ($432.46) as reimbursement for medical expenses that she paid and mileage and $6,400.00 as balance due from the TTD after subtraction of the attorney's fees.
The matter is remanded to the worker's compensation division for determination of the permanent partial disability to be awarded.
Jurisdiction is reserved for such further findings and orders as may be necessary.
The findings and order of the administrative law judge are reversed. Within thirty days from this date, respondents shall pay to:
(1) Dovie Pattengale, the applicant, Four hundred thirty-two dollars and forty-six cents ($432.46) as reimbursement for medical expenses that she paid and mileage;
(2) ERMED SC, Four hundred forty-three dollars ($443.00);
(3) Medical Diagnostic Imaging LLC, One thousand seven hundred and ninety-six dollars ($1,796.00);
(4) Milwaukee Clinic of Orthopedic Surgery, One hundred thirty dollars and one cent, ($130.01);
(5) Anthem Bluecross/Blueshield, One thousand seven hundred eighty-five dollars and forty-four cents ($1,785.44).
(6) Temporary Total Disability payment of Eight thousand dollars ($8,000.00) for the period of June 4, 2010 until January 24, 2011 of which the applicant will receive Six thousand four hundred dollars ($6,400.00) after subtraction of attorney's fees
(7) Attorney Domer of One thousand six hundred dollars (20%) plus costs of Ninety four dollars and eighty six cents ($94.86), totaling One thousand six hundred ninety four dollars and eighty six cents ($1,694.86).Again, the matter is remanded to the worker's compensation division for determination of the permanent partial disability to be awarded. Specifically, at the hearing the applicant testified that she was no longer seeking employment.
Jurisdiction is reserved for such further findings and orders as may be necessary.
Dated and mailed
July 26, 2012
pattedo : 150 : 9 ND6 3.35
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
LAURIE R. MCCALLUM, Commissioner (dissenting):
I respectfully dissent from the majority opinion in this matter. Like the ALJ, I find that the applicant's multiple versions of the event which led to the subject injuries are simply too distinct to reconcile without speculation; and, particularly given the change in her characterization of the injury after she learned of the denial of her claim, find her present claim that the elevator opening caused her fall not to be credible.
As the ALJ pointed out in her credibility conference with the commissioners, in the initial version of events offered by the applicant, she stated that her shoe stuck to the floor and there had been no unevenness in the floor surface; but, by her final version, the applicant's explanation had morphed to the point where she was now stating that she had tripped over the lip of the elevator gap.
Moreover, as the ALJ also pointed out in the credibility conference, even at hearing, the applicant testified inconsistently, ultimately testifying that she was not sure if she tripped or her foot got stuck, and was not even sure which foot was involved.
Here, in my opinion, given the varying versions of events offered by the applicant, her fall is unexplained and, as such, I agree with the ALJ that it is not compensable. Brickson v. ILHR Department, 40 Wis.2d 694 (1968) (applicant gave differing accounts of how she fell as she exited a restroom, injury unexplained and not compensable). See, Durkee v. Marathon County, WC Claim No. 91-043764 (LIRC April 16, 1992)(applicant did not offer credible reason for fall on a clean terrazzo floor and no evidence that the floor was wet, slippery or littered, injury unexplained and not compensable); Eckelberg v. Scientific Molding, WC Claim No. 1999-058179 (LIRC Dec. 20, 2001)(compensation denied where applicant inconsistent about how fall occurred).
Further while it is possible that an elevator certainly could be found to be a zone of special danger, in this case no such evidence was presented.(1) No testimony or photographic evidence was entered to establish that the surface between the elevator and main floor was not level or that the flooring and gap was slippery, sticky or that any other impediment existed resulting in the fall.
Consequently, I agree with the ALJ and would affirm her decision in this matter.
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Thomas Domer
Attorney Daniel Zitzer
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