STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN H LEGWINSKI, Applicant

CITY OF OAK CREEK POLICE, Employer

WAUSAU INSURANCE COMPANIES, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94060497

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.

ORDER

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

Dated and mailed: March 31, 1998
legwinj.wsd : 101 : 2  ND § 3.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The issue in this case is the date of the injury that led to the applicant's disability and need for back surgery. The applicant asserts that the injury occurred in an August 9, 1994 incident in which the applicant struggled with and lifted a resisting suspect while handcuffing the suspect. The employer and the insurer (collectively, the respondent) assert the injury occurred during a charity flag football game between the fire department and police department held on September 24, 1994. Both parties offer expert medical opinion to support their positions. The ALJ found for the applicant.

After carefully examining the record, and conferring with the presiding ALJ concerning witness credibility and demeanor (1), the commission agrees with the ALJ. First, the commission notes there is no dispute that the applicant reported the August 1994 back injury when it happened. During the credibility conference, the ALJ stated he found the applicant an extremely credible witness with respect to his testimony that he had continuing pain after the August 1994 injury; that he wore a corset-type belt after that injury; that the back pain made him reluctant to participate in the charity football game until he was cajoled into playing by coworkers; and that he experienced no noticeable injury in the football game. On this later point, particularly, the commission notes that acting chief Bauer did not recall the applicant being hurt, or even being hit, in the football game. Under these facts, the commission finds more credible Dr. Ladwig's opinion that the August 9, 1994 injury caused the applicant's disability and need for surgery.

As the respondent points out in its brief, ALJ Jones made no specific finding in regard to whether the applicant was in the course of his employment while participating in the flag football game between the police department and the fire department on September 24, 1994. The commission notes that, because the ALJ found the applicant's disability was caused by the August 9, 1994 injury which clearly was in the course of employment, the applicant's status during the charity football game is not at issue. ALJ Jones thus prudently declined to decide an issue that was not before him. (2)

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Stiehl's report to be more convincing than Dr. Ladwig's report. The applicant did not seek treatment from his lifting incident of August 9, 1994. The first treatment he sought occurred after the football game. In Exhibit 3, page 11, the applicant was asked "Did you slip or fall during the game?" He answered, "I think I fell once."

Dr. Stiehl reported that the applicant was "admitted to the hospital October 24, 1994 following a one month history of lower back pain into the right leg correlated with a CT Scan showing an extruded fragment at the L5-S1 level on the right with obliteration of the S1 nerve root." The emergency room report said that the applicant had a prior back injury but "developed fairly significant pain at that time which had been fairly acute.... Then at the time of the accident on 9/24/94 he had an excruciating onset of pain with tenderness in his lower back." Dr. Stiehl found that "Based on the rather specific development of back pain and leg pain on 9/24/94, it is likely that the herniated disk problem occurred at that time. Furthermore, it is likely that this individual sustained his injury requiring surgery because of this particular condition. Therefore, the 8/09/94 injury was not because of that disk rupture specially, nor was it the cause of the need for subsequent surgery."

I would also find that under the standard the commission articulated in Wunsch v. City of Fond du Lac Fire Department (LIRC, December 21, 1994) that the football game was not within the scope of the applicant's employment. I would find that the surgery for the herniation was not covered by workers compensation.

Pamela I. Anderson, Commissioner

cc: PETER TOPCZEWSKI
ATTORNEY AT LAW
STILP & COTTON
MILWAUKEE WI 53224-3607

ATTORNEY JULIE DARNIEDER
DARNIEDER WEST DAVIS & GERAGHTY

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Footnotes:

(1)( Back ) Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

(2)( Back ) In the case cited by the dissenting commissioner, the commision recently concluded that a firefighter's off-duty, uncompensated participation in a "donkey baseball" game conducted for charity constituted covered employment under the facts of that case. Larry Wunsch v. City of Fond du Lac, WC Claim no. 93040966 (LIRC, December 21, 1994).