State of Wisconsin
Labor and Industry
Review Commission
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Worker's Compensation
Decision[1] |
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Employee-Applicant |
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Employer |
Dated and Mailed: |
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Insurer |
October
24, 2016 |
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Claim
No.2015-013562 |
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Order
The decision
of the administrative law judge is modified
and, as modified, is affirmed. Accordingly, the application is dismissed.
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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.”
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]
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[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).