State of Wisconsin

Labor and Industry Review Commission

 

 

Kay Templin

Worker’s Compensation Decision[1]

Employee-Applicant

 

 

Aces/Xavier Educational System

 

Employer

Dated and Mailed:

 

 

Preferred Professional Ins. Co.

Insurer

October 24, 2016

 

 

Claim No.2015-013562

 

 

 

 

Order

The decision of the administrative law judge is modified and, as modified, is affirmed.  Accordingly, the application is dismissed.

 

 

By the Commission:

/s/____________________________________

Laurie R. McCallum, Chairperson

 

 

/s/____________________________________

C. William Jordahl, Commissioner

 

 

/s/____________________________________

David B. Falstad, Commissioner

 

 


Procedural Posture

This case is before the commission to consider the applicant’s entitlement to worker’s compensation benefits. An administrative law judge (ALJ) for the Division of Hearings and Appeals of the Department of Administration held a hearing and issued a decision. A timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, subject to the following:

 

Modification

In the second full paragraph on page 5 of the ALJ’s decision delete “$440 per hour” and insert therefor “$440 per week.”

 

Memorandum Opinion

 

The applicant worked as a kitchen worker for the employer.  On October 15, 2014, the applicant was pulling a tray of macaroni and cheese from a warming oven when she slipped on condensation from the tray.  The applicant’s right leg went in front of her and her left leg behind her and she landed on her left knee.  The applicant did not feel anything special in her knee.  About a week later, the applicant felt a pain in the right inside of her left kneecap. 

 

The applicant first sought medial treatment on March 26, 2015.  At that examination, she reported to Dr. Szabo that after her fall she did not experience pain with walking.   The applicant indicated that after the fall she felt minimal discomfort every now and again.  She further indicated that at the end of the day when sitting down with her legs crossed she would feel discomfort if her left leg was jostled.   She sought treatment after suddenly developing night pain.  An x-ray taken at the time was read as negative.  Examination of her knee revealed only mild tenderness in the medial aspect of her left knee.  Dr. Szabo released the applicant to return to her normal work duties.

 

An MRI of July 20, 2015, revealed a left knee medical meniscus tear.  On August 27, 2015, Dr. Springer performed a partial medial meniscectomy. 

 

The applicant submitted a WKC-16-B completed by Dr. Szabo.  Dr. Szabo indicated that the fall at work directly caused the applicant’s disability.  Dr. Szabo also stated that the applicant returned to work on March 26, 2015, with no limitations.  Dr. Szabo indicated that the applicant’s fall did not result in any permanent disability.

 

IME Dr. Xenos examined the applicant on February 12, 2016, and conducted a medical records review, including the treatment note of Dr. Szabo, the July 20, 2015, MRI, and the August 27, 2015, operative note.  Dr. Xenos stated in his report that the findings noted by the MRI were not traumatic in nature but most consistent with a degenerative pattern.  Dr. Xenos stated that the complex tear pattern noted of the medial meniscus is not associated with an acute injury but an attritional injury of the meniscus due to weight bearing over time.  Dr. Xenos opined that the applicant sustained a left knee sprain on October 15, 2014, which did not precipitate, aggravate, or accelerate her left knee degenerative joint disease.

 

The applicant has the burden of proving all of the facts necessary to recover benefits.[2]  Benefits should be denied when the evidence raises a legitimate doubt as to the existence of facts necessary to establish a claim. [3]

 

Here, the applicant failed to meet her burden of proof.  Indeed, the applicant’s own medical evidence fails to support a finding that she sustained any disability due to her fall at work.  Further, there is no indication in the record that Dr. Szabo, who saw the applicant only on March 26, 2015, was even aware of the MRI results.  Finally, Dr. Xenos presented a credible explanation as to why the MRI demonstrated that the applicant’s meniscus tear was a result of a degenerative condition. 

 

The applicant sought to introduce two uncertified letters containing medical opinions on causation.  However, such opinions must be certified absent a stipulation to their admission by the opposing parties.[4]  Here, the respondents objected to the admission of the letters.  Further, the applicant was required to submit certified reports to the department and the opposing parties 15‑days before the hearing, unless good cause is found.[5]  While the applicant notes that she has proceeded pro se, she was able to submit a properly certified and timely WKC-16-B.  In addition, the hearing in this matter took place on April 26, 2016, and one of the letters was dated August 17, 2015.  Thus, the applicant had ample time to submit that letter in a timely fashion.  The ALJ properly excluded both letters as being uncertified and not timely filed.  The applicant has submitted those letters with her petition.  However, the commission cannot consider evidence that was not considered by the ALJ.[6] 

 

 

cc:

Attorney Robert Dean

 



[1] Appeal Rights: See the yellow enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint:  the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above).

 

Appeal rights and answers to frequently asked questions about appealing a worker’s compensation decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

 

[2] Kraynik v. Industrial Commission, 34 Wis. 2d 107, 110-11, 148 N.W.2d 668 (1967).  

[3] Bumpas v. ILHR Department, 95 Wis. 2d 334, 342-43, 290 N.W.2d 504 (1980).

[4] Wis. Stat. § 102.17(1)(d)1.; Amundsen v. TLC for Seniors, WC Claim No. 2011-016105 (LIRC Aug. 29, 2013).

[5] Wis. Stat. § 102.17(1)(d)3.

[6] Amsoil, Inc. v. LIRC, 173 Wis.2d, 154, 166, 496 N.W.2d 150 (Ct. App. 1992).