TRACIE L FLUG, Applicant

WAL MART ASSOCIATES INC, Employer

NEW HAMPSHIRE INSURANCE 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, 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 February 23, 2015

flugtr_wsd . doc : 145 : ND6 5.6

BY THE COMMISSION:

Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The applicant has petitioned for commission review of the ALJ's decision. The applicant asserts that there is no dispute that she injured herself at work. Rather, the applicant argues that the medical dispute is over the nature and extent of the applicant's disability. The issue before the ALJ whether the applicant sustained an injury on February 14, 2013, arising out of and occurring while performing services growing out of and incidental to her employment with the employer. The applicant has the burden to establish that she suffered a work injury. The applicant failed to present credible medical evidence to establish that she suffered a work-related injury because the history upon which Dr. Floren relied when making his determination as to whether the incident on February 14, 2013, resulted in a work injury was incorrect.

The applicant asserts that Dr. Soriano, the respondent's expert, is incorrect about the nature of the injury. The applicant asserts that Dr. Soriano indicated that scanning a product on a shelf could not have aggravated or worsened two levels of a previously arthritic condition at C5-6 and C6-7 to the point they became symptomatic. However, the applicant asserts that there is no burden on the applicant to show that the exertion was anything beyond unusual. The ALJ did not adopt the findings of Dr. Soriano. Rather, the ALJ was left with legitimate doubt as to whether the applicant suffered any work injury, and so he dismissed the application. See Leist v. LIRC, 183 Wis. 2d 450, 457 (1994).

The applicant also asserts that the respondent is liable for benefits under Wis. Stat. § 102.42(1m) because she in good faith underwent invasive treatment that is generally medically acceptable but is unnecessary. The applicant asserts that Dr. Soriano determined that the applicant suffered a cervical strain as a result of the work incident and that the surgery was not reasonable and necessary to treat that work injury.

Wis. Stat. § 102.42 provides:

(1m) LIABILITY FOR UNNECESSARY TREATMENT. If an employee who has sustained a compensable injury undertakes in good faith invasive treatment that is generally medically acceptable, but that is unnecessary, the employer shall pay disability indemnity for all disability incurred as a result of that treatment. An employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is noninvasive or not medically acceptable. This subsection applies to all findings that an employee has sustained a compensable injury, whether the finding results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department.

In order for Wis. Stat. § 102.42(1m) to apply the applicant must first establish that she sustained a compensable injury. The applicant has failed to do this.

The applicant further asserts that the ALJ erred when he concluded that the applicant gave a different history to Dr. Morissette than the one she gave to Dr. Floren. Since they both work in the same clinic and since Dr. Floren wrote that Dr. Morissette's "history concurs" the applicant asserts that the only reasonable inference is that Dr. Floren reviewed the notes of Dr. Morissette. The commission agrees with the ALJ's conclusions. In February, when the applicant sought treatment with Dr. Morissette she stated that she had some pain after doing some work. The applicant told Dr. Floren that she had sudden and significant symptoms.

The applicant asserts that the ALJ conflated terminology and this led to additional misunderstanding. The applicant asserts that she did not provide an explanation for the significant difference in histories because she was not asked to as she does not believe there was a significant difference in histories. She states she had pain but not numbness or tingling at the onset of her symptoms. The applicant asserts that she did not experience tingling until around March 22, 2013. The commission notes that the applicant experienced problems at work on February 14, 2013, but did not seek treatment until February 20, 2013. The commission notes that the applicant was performing a relatively minor task on February 14, and using a scanner which was not heavy. The applicant gave very specific testimony at the hearing regarding radiating, needles going through the shoulder blade and radiating down into her arm. She also indicated that she felt something shift in her neck and it just pinched it off. This shifting was followed by a sudden onset of pain. Thus, the commission agrees with ALJ's conclusion that the variance in history raises a legitimate doubt as to the compensability of the claim.

cc: Attorney Jeffrey J. Klemp
     Attorney Richard D. Duplessie

Appealed to Circuit Court.  Affirmed September 3, 2015.  Appealed to Court of Appeals.  Reversed June 21, 2016.  Commission Decision Affirmed by Supreme Court June 30, 2017.

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