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

KEVIN L HAKE, Applicant

MILWAUKEE HILTON MARCUS CORP, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997010432

The applicant submitted a petition for commission review alleging in the administrative law judge's Findings and Order issued in this matter on March 31, 1998. Respondents submitted an answer to the petition. At issue is whether the applicant sustained an injury arising out of his employment with the employer on July 20, 1996.

The commission carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified.

MODIFIED FINDINGS OF FACT

The administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein, with the exception of the fourth sentences of the final paragraph of her findings. That sentence is deleted and the following sentence substituted therefore:

"Rather, it is found that the applicant's head injuries were the result of an unexplained fall to the flat tile floor in the room service room on July 20, 1996."

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application is hereby dismissed.

Dated and mailed: June 19, 1998
hakekev.wmd : 185 : 7  ND § 3.34

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission carefully reviewed the entire record in this matter and concluded that the applicant's injury was unexplained, and did not give rise to an inference that it arose out of his employment with the employer. The administrative law judge found that the fall was either idiopathic or unexplained, but based on what the record demonstrates is known about the incident, the commission found the reason for the fall was truly unexplained, and therefore not compensable. Briggs and Stratton Corp. v. ILHR Department, 43 Wis. 2d 398, 404, 168 N.W.2d 817 (1969).

The applicant asserted that the administrative law judge's reference to prior medical conditions was inappropriate because there was no medical opinion to the effect that any of those prior conditions was causative of the injury occurring on July 20, 1996. In her narrative report dated January 8, 1998, Dr. Altmann opined that it was plausible that diarrhea and dehydration, possibly HIV related, could have led to a syncopal episode on July 20, 1996. While Dr. Altmann's medical opinion was not accepted as a an opinion of legal causation, it did provide evidence, together with the other evidence concerning prior medical conditions, relevant to the issue of causation as determined by the administrative law judge and the commission.

The applicant also challenged Dr. Biedrzycki's opinion that his head injuries were consistent with having fallen from a standing position and hitting the left side of his head on the floor. This opinion was plausible. The applicant asserted that evidence that there may have been a "contusion to back of head," (1) supports his theory that there was a separate blow to the left side of his head and a fall onto the back side of his head. No physician diagnosed a contusion or laceration to the back of the applicant's head. In fact, on July 20, 1996, Dr. Lippman examined the applicant's head and found a left frontotemporal edipural hematoma with a contrecoup hemorrhage in the right frontoparietal region, but made no mention of any other head injury. In testimony, Dr. Lippman verified that he found no injury to the back of the applicant's skull.

cc: ATTORNEY JOHN S JUDE
ALBERT JUDE BOYD & SIMANEK SC

ATTORNEY SCOTT R WINKLER
STILP AND COTTON

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Footnotes:

(1)( Back ) This notation is found in the nurse's assessment notes in the Sinai Samaritan Emergency Room Report dated July 20, 1996.