P O BOX 8126, MADISON, WI 53708-8126




Claim No. 2011-016105

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, except that it makes the following modifications:

1. Substitute "James Soper, M.D., for "Dr. Peter Christiansen" in the fourth paragraph of the ALJ's decision, and substitute "Dr. Soper" for all subsequent references to "Dr. Christiansen" in the remainder of the ALJ's decision.


The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed
August 29, 2013
amundse_wmd.doc:101 :  ND6 9.24; 9.28



/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


1. Facts and posture.

The applicant was born in 1957. On August 23, 2011, she underwent an arthroscopic re-repair of a right shoulder full thickness rotator cuff tear with debridement of the tear. At issue in this case is what caused that surgery to be necessary.

On June 2, 2011, the applicant went to the home of an elderly client whose name the applicant could not recall. While at the client's home, the applicant testified, she injured her right shoulder when she tried to take down a hanging plant that was above shoulder level from a clothesline. She testified that the plant was a potted geranium, that the soil in the plant was wet and had recently been watered, and that it weighed about 5 pounds. When she lifted the plant off the clothesline, she testified, she felt a twinge like a sharp needle sticking into her shoulder.

The applicant saw a doctor, Thomas J. McCool, M.D., that same day. Dr. McCool noted the following history:

This a 53-year-old employee of TLC presents after injuring her right dominant shoulder. The patient does home care as a CNA for her employer. As she was unhooking a hanging plant for a client today, she felt a pulling sensation in the right shoulder. The plant may have weighed 5 pounds or so. Upon presentation the patient is having some trouble moving the right shoulder and feels more comfortable holding the arm in a flexed position. Of note, the patient underwent right rotator cuff repair a bit over a year ago and after the procedure and physical therapy she thinks she had recovered completely from that.

The doctor assessed a "probable right shoulder sprain" and allowed the applicant to return to work, but advised her to come back if she did not improve. (Exhibit D.)

On June 3, 2011, the applicant treated at another clinic, the Peter Christensen Health Center, with James Soper, M.D. She explained that although she normally treated at a different clinic, she was able to treat at the Peter Christensen Clinic without insurance. (Transcript p. 26.) Dr. Soper's note, at Exhibit 3 and Exhibit 1, gives the following history:

Rose is having some right shoulder discomfort that she thinks stems from an incident two days ago when she was reaching up to remove a heavy box off a shelf or top of a cabinet that overwhelmed her and caused her to fall backwards with her right arm abducted and externally rotated. She did not hear a pop or feel a snap though wanted to make sure she does not have an injury that requires acute intervention for fear of harming herself even further.

This is quite different than the history that the applicant gave Dr. McCool one day earlier. The applicant testified that Dr. Soper told her it was his last day at the clinic, that he seemed distracted and his beeper was going off, that there was a knock on the door while he was seeing her, and that she did not believe he was giving her his full attention. (Transcript pp. 28-29.)

The applicant also testified that she only saw Dr. Soper to fill unrelated medication prescriptions. She testified that she told the doctor that her shoulder was bothering her when he inquired about her general health, "but I didn't tell him why or I said that's not the reason I'm here." (Transcript p. 28.) On cross-examination, she reiterated that she did not tell Dr. Soper how she hurt her shoulder. (Transcript p. 59.)

2. Discussion.

a. Did work injury happen?

The ALJ denied compensation in this case based on the conflict in record about how the applicant hurt her shoulder. The commission agrees with the ALJ's decision.

Here the applicant reported a work injury on the first occasion of treatment, then reported an unrelated off-duty incident on the second occasion, then reverted to a description of the work injury on subsequent occasions of treatment. Under other circumstances, it might be reasonable to infer that Dr. Soper simply misunderstood the applicant and mis-described the event in his notes. Indeed, the applicant testified without contradiction that Dr. Soper was distracted during his last day of work at the clinic.

However, the commission agrees with the ALJ's decision to dismiss the application. First, the ALJ saw the applicant as she testified and had the opportunity to develop impressions of her credibility from his first-hand observations. His credibility assessment is supported not only by the conflicting descriptions of the event causing the injury in the medical notes, but also by the applicant's testimony regarding the condition of her right shoulder before reporting for work on June 2, 2011. She first testified that her shoulder was hurting when she reported for work, which was its normal state due to prior injuries (Transcript p. 11). However, she later testified her shoulder felt fine (Transcript p. 12) and that her shoulder was not hurting before she arrived at the client's house on June 2 (Transcript p. 37). In addition, the applicant acknowledged that she had failed to report earlier right shoulder injuries to adjuster investigating her worker's compensation claim (Transcript p. 38).

Second, as set out above, the applicant testified that she told Dr. Soper nothing at all about how she hurt her shoulder when she saw him on June 3. That is, Dr. Soper did not simply misunderstand or mis-report the mechanism of injury-the applicant's testimony is that Dr. Soper completely invented one. The commission does not believe it likely that Dr. Soper would have made up a mechanism of injury, regardless of how distracted he may have been when he treated the applicant. Because the inconsistencies in the descriptions of the event causing the applicant's injury are material, and because a worker's compensation claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation, Leist v. LIRC, 183 Wis. 2d 450, 457 (1994), the ALJ properly dismissed the hearing application in this case.

b. Uncertified letter

The employer and its insurer (collectively, the respondent) challenge the ALJ's decision not to admit exhibit 4, a report in letter form from the applicant's treating doctor, Dr. Kirkhorn. The letter report was not certified as set out in Wis. Stat. § 102.17(1)(d).

The letter report is hearsay, and the applicant's attorney did not stipulate to its admission. The respondent argues that Dr. Kirkhorn's letter report meets the hearsay exception set out in Wis. Stat. § 908.03(4), which provides

908.03 Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:


(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

However, that hearsay exception allows a doctor or other practitioner to testify to certain statements made to him by another during treatment, such as a patient's description of his or her symptoms.(1) It is not intended to eliminate the requirement that medical records generally be certified under Wis. Stat. § 908.03(4m) or that medical reports or opinions in worker's compensation cases specifically be certified under Wis. Stat. § 102.17(1)(d)1 and 4.

Wisconsin Admin. Code § 140.12 gives an ALJ the discretion to admit hearsay having probative value. Even if admissible hearsay, however, Dr. Kirkhorn's letter would not be "substantial and credible evidence" on judicial review under Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis. 2d 211,  81, 89, as it has not been certified as required under Wis. Stat. § 102.17(1)(d)4.

Finally, in his letter report, Dr. Kirkhorn essentially states that if his opinion was based on an incomplete or inaccurate description of how the applicant hurt her shoulder, he would modify his opinion. However, the August 2, 2012, report of the employer's medical examiner, Dr. Fey, makes the same point. That is, Dr. Fey's report (exhibit 2, page 6) establishes that the difference between the descriptions of the events causing injury is material. Dr. Fey's report is more than sufficient to support the decision to dismiss the application in this case.


cc: Attorney Eric Pease
Attorney James Goonan

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(1)( Back ) In State v. Nelson, 138 Wis. 2d 418, 430-31, 406 N.W.2d 385 (1987), the supreme court explains:

Under sec. 908.03(4), Stats., a doctor may relate a "patient's statements of past or present symptoms or history, including statements of the character or external source of the cause [of the symptoms] insofar as reasonably pertinent to diagnosis or treatment." Judicial Council Committee's Note, Wis. R. Evid., 59 Wis. 2d R265 (1974). Thus a patient's statements to a doctor, as to the cause of an injury, may be introduced into evidence by that doctor if the patient's statements are made for the purposes of diagnosis or treatment. The rationale underlying this exception to the hearsay rule is that the declarant's motive of obtaining improved health guarantees the statement's trustworthiness. Because patients go to doctors to receive treatment and treatment usually depends in part upon what is said, the declarant has a motive to disclose the truth. State v. Wyss, 124 Wis. 2d 681, 710, 370 N.W.2d 745 (1985); 4 J. Weinstein and M. Berger, Weinstein's Evidence 803(4) [01] at 803-144 (1985).


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