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


DANIEL JOHN THOMAS, Applicant

RANDALLS FROZEN CUSTARD, Employer

SOCIETY INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996045741


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 makes the following:  

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, a restaurant manager, claims he sustained a recurrent inguinal hernia from his duties as a restaurant manager. The applicant had already had two prior inguinal hernia repairs, the last done in 1989.

On June 15, 1996, the applicant recalled experiencing a pull, a feeling of nausea, and light-headedness he when moved some utility poles by himself. (1) He did not notice a bulge at the time.

The applicant did not treat for this injury. Indeed, a recurrent hernia was not discovered until a month later on August 15, 1996, when the applicant was examined for a DOT-required physical before starting work as a truck driver. Dr. Crawford, who performed the examination and discovered the hernia, did not note the "utility pole moving" incident in his discussion of the hernia. Rather, Dr. Crawford noted that the applicant had no presenting symptoms. See Exhibit C, note of Crawford.

Dr. Crawford referred the applicant to Dr. Pratt who performed surgery. Dr. Pratt's note also does not mention the utility pole incident.

Indeed, none of the treating doctors have indicated that the applicant's inguinal hernia was caused by a lifting injury or otherwise work-related. The commission examined the medical notes attached to exhibits A, B, and C, but found no such statement. Exhibits A, B, and C also contain practitioner's reports from Drs. Pratt and Crawford on form WC-16-B. The practitioner's report form allows a medical practitioner to give an opinion that work caused disability by simply marking a box. The doctors either left these spaces blank or marked them negatively.

The insurer's independent medical examiner, Gerald R. Zupnik, M.D., opines that the hernia was not caused by lifting or moving the utility poles. Dr. Zupnik believed that, because the applicant was familiar with inguinal hernia pain, he would have associated the pain from moving the poles with a hernia immediately had he in fact experienced hernia-like pain. Instead, the applicant was surprised when a hernia was discovered.

On this record, the commission concludes that the applicant has failed to provide competent medical evidence to prove that his hernia or the resulting disability was caused by an accident or disease arising from his employment. Consequently, the application must be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed August 31, 1999
thomasd.wrr : 101 : 5 ND § 3.44

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ found the applicant to be a credible witness. The ALJ believed the applicant was in fact performing the work duties he described when he felt discomfort but that up until the DOT physical did not know for sure that he had sustained a hernia. The ALJ went on to state that he believed the record thus met the standards used in hernia cases.

The two cases which set out special standards for cases involving inguinal hernias are Meade v. M.M. Co., 168 Wis. 2d 250 (1918), and McCarthy v. Sawyer- Goodman Co., 194 Wis. 198 (1927). The standards are summarized in Meade, at 168 Wis. 250:

"Inguinal hernias rarely result from accident. They come from inherited or acquired weakness and develop gradually. Because of this, it has been necessary for the Commission to require definite proof that the hernia was produced by accident. The applicant must prove that the accident was such as could produce a hernia; that the hernia appeared immediately after the accident; that it was followed by pain immediately disabling the applicant; and that the applicant gave immediate notice of the injury to the respondent."

The commission cannot accept ALJ Jones' conclusion that the Meade/McCarthy standards support payment of compensation in this case. First, it does not seems as if the hernia "appeared" immediately after the injury, at least in the sense of a detectable bulge. Second, the applicant did not give immediate notice of the injury to the employer. Third, while the Meade/McCarthy   standards may possibly be used to reject an expert opinion that a hernia is work-related, the commission is not certain they may be used to award compensation in the face of an uncontroverted expert opinion that the hernia is not work-related.

cc: ATTORNEY DAVID F ANDRES
PETERSON JOHNSON & MURRAY SC


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Footnotes:

(1)( Back ) The applicant had had the poles cut into ten-foot lengths as firewood for a fishboil.