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

ROBERT TEARMAN, Applicant

STOUGHTON TRAILERS INC, Employer

STOUGHTON TRAILERS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94057629

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: June 30, 1998
tearmro . wsd : 175 : 7  ND § 3.44

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in his petition for commission review that the administrative law judge erred in determining that the applicant sustained a work-related injury on August 3, 1994 in the nature of a hernia. The employer contends that the administrative law judge should have credited the opinion of Dr. Monk, who examined the applicant on behalf of the employer. Dr. Monk opined that the indirect type of hernia that the applicant had may be related to work when there is a history of heavy lifting and a sudden onset of pain and a mass, but with no bulge and no pain on August 3, 1994 and a history of being physically active in life otherwise, and with a job that requires no lifting over 20 pounds the incident of August 3, 1994 could not be considered as causative. However, the initial medical notes dated August 19, 1994 indicate that the applicant reported that on August 3, he was pulling and pushing at his work duties for the employer and he felt pain and a bulge in his right inguinal area, and that the bulge persisted but he was able to push it back.

Dr. Tydrich, who performed the initial examination, noted that there was a definite bulge in the right inguinal area consistent with a right inguinal hernia. The applicant testified that as part of his duties he had to pull out a bogie which was a chassis which sat on two wheels and on August 3, 1994, he was pulling on the bogie which had become stuck, and he was pulling with everything he had, when he felt a pulling sensation in his groin area on the right side just above the groin. The applicant testified that he had undergone a pre-employment physical in 1990 and had no evidence of a hernia and that he had not suffered any prior pulling sensations in his groin prior to that day.

The medical evidence indicates that the applicant did report that he suffered pain and a bulge in his right inguinal area on August 19, 1994 when he first sought treatment. However, the employer contended that the applicant's version was not credible. The employer points to the fact that the applicant engaged in an altercation with another employe on August 4, 1994, one day after the alleged incident, and also that the applicant was subsequently discharged for lying to the employer which undercuts his credibility. However, the commission consulted with the administrative law judge concerning her assessment of the witnesses demeanor and testimony. The administrative law judge indicated that she found the applicant's testimony to be straightforward and credible that he suffered a pulling sensation with the onset of swelling in the right inguinal area on August 3, 1994, and he subsequently noticed a bulge and was diagnosed with a right inguinal hernia. The administrative law judge also indicated that although the physical altercation demonstrated a lack of character it did not demonstrate that he did not pull his groin muscle on August 3, 1994. The commission agrees. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination.

Although the applicant did not display all the classic symptoms of a hernia on August 3, 1994 and did not become nauseous, he did credibly testify to the onset of a pulling sensation and resulting bulge and swelling in the right inguinal area following the incident on August 3, 1994. Further, the commission acknowledges that the applicant should have promptly reported the incident to the employer and that the applicant did give varying accounts of when the bulge in his groin appeared. However, the commission credits the initial medical notes dated August 19, 1994 which indicates that the applicant reported that on August 3, he was pulling and pushing in his work duties for the employer and he felt pain and a bulge in his right inguinal area and that the bulge persisted but he was able to push it back.

Dr. Karzel, the applicant's treating physician, completed a WC-16-B dated December 7, 1995 which indicates that the applicant sustained a hernia as a result of pulling and lifting activities at work on August 3, 1994 and in a letter dated December 1, 1995, Dr. Karzel specifically indicates that the applicant's activity he described on August 3, 1994 was consistent with producing the hernia and that he had no information regarding a fight or altercation in his notes. The commission credits Dr. Karzel's assessment. Based on the applicant's credible testimony of the nature and onset of his pain and bulge in the right inguinal area on August 3, 1994 while pulling with everything he had when he felt a pulling sensation in his groin area, and based on Dr. Karzel's assessment, as well as the original medical notes and history given to Dr. Tydrich, the evidence established that the applicant suffered a right inguinal hernia as a result of his work injury. The commission also agrees with the administrative law judge that the applicant was entitled to temporary total disability benefits from the date he was fired July 8, 1995 to the date of his recovery from his hernia surgery on January 11, 1996. The applicant was in his healing period from the date of the injury until six weeks after he had surgery. The employer did not establish that the applicant engaged in physical activities after he was discharged and before his surgery that were inconsistent with his hernia injury.

cc: ATTORNEY JAMES E HAMMIS
STOUGHTON TRAILERS INC

ATTORNEY JAMES MEIER

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