STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
ROXANNE NINNEMAN, Applicant
KOHLER CORPORATION, Employer
KOHLER CORPORATION, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1996001949
The applicant alleges a compensable injury on June 15, 1994. She seeks compensation for temporary disability and permanent disability, and reimbursement of certain medical expenses.
The self-insured employer conceded the basic jurisdictional facts, and an average weekly wage of $231.67. Prior to the hearing, however, the employer contended (a) the applicant's claim was barred because the applicant provided late notice of the injury under Wis. Stat. § 102.12, and (b) that her disability and need for treatment did not arise from the alleged work injury.
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The ALJ found for the applicant. The employer filed a timely petition for review.
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
1. Facts.
The applicant was born in 1956. She has worked for Kohler Company as a laundry worker since 1991.
The applicant tripped on the raised edge of a sidewalk on her way from work to the employer-designated parking lot to work on June 15, 1994. As she tripped, she twisted her right foot. Co-workers helped her to her feet. Her foot was sore, and she continued on her way home.
The applicant was able to work the next day. She mentioned the fall to her supervisor, Laura. However, she did not ask to have the injury treated as a worker's compensation claim, as she did not think falling on a sidewalk could be a covered injury. Indeed, it was not until November 29, 1995 that she specifically asked the fall be treated as a compensable injury, and completed an accident report.
Meanwhile, the applicant continued to work. However, shortly after the fall, she saw an orthopedist, Donald R. Gore, M.D., about her foot on June 30, 1994. (1) He noted a history of twisting the foot two weeks earlier, with development of pain over the lateral aspect of the foot and point tenderness over the proximal fifth metatarsal. An x-ray looked fine, and the doctor did an injection.
When the applicant returned to Dr. Gore on November 7, 1994, he noted that her right foot bothered her again, with pain at the attachment of the peroneous brevis to the fifth metatarsal. He again did an injection.
The applicant returned in May 1995, telling the doctor that the prior injection "lasted" about six months, and that she again had pain right at the attachment of the peroneous brevis to the fifth metatarsal. He noted that if she continued to have the problem, he would consider releasing the tendon, shaving off the bone, and re-attaching it.
The applicant returned again in November 1995, again complaining of pain in the area of her fifth metatarsal "the same pain she has had all along." She now wanted something done, which Dr. Gore described as an "excision of the bony prominence of the proximal fifth metatarsal with re-attachment of the peroneous brevis."
The surgery was performed on December 12, 1995. By March 4, 1996 she was doing pretty well, and could return to her regular duty.
That did not end the treatment, however. In July 1996, the applicant returned to Dr. Gore, again complaining of pain in her foot. The doctor noted a nodule of scar tissue directly under the point of the December 1995 surgery. The doctor wanted to do another surgery to excise the scar tissue and shave the bone down.
This second surgery was done on August 5, 1996. By September 23, 1996, Dr. Gore reported she felt fine, and could return to her regular job. He released her to return for treatment as needed.
She was back complaining of pain on the outer aspect of her fifth metatarsal on January 9, 1997. He again injected her. She returned a couple weeks later with complaints of pain and swelling in the right ankle, which involved the same peroneal tendon that attached to her fifth metatarsal. A cast was applied. The doctor wondered about arthritis or an inflammatory process, but it turned out to be an infection, presumably following the January 1997 injection. See notes for February 1997. By April 1997, she was doing much better.
The doctor instructed her to return on July 21, 1997. By this time, her wounds were all healed. She still complained of ankle soreness. However, the doctor thought this would resolve with time. He ordered an EMG to rule out a neurological cause for the continuing pain based on her prior back injury, and a SED rate to rule out arthritis. These were both normal, but the pain continued.
The doctor was reluctant to try another injection, based on her history of infection. He did, however, recommend continued treatment with anti-inflammatories.
Treating Dr. Gore opined the applicant sustained disability from her foot problems which was directly caused by the June 15, 1994 injury. He rated permanent disability at five percent compared to loss of the foot at the ankle, and stated she was temporarily disabled from the condition as set out in his work releases (covering the surgeries and the post-injection infection). His notes of June 30, 1994 to November 9, 1995, indicate that the initial surgery (and the results of that surgery) were for the pain the applicant has had all along since the time of the injury.
The employer retained an independent medical examiner, Richard Karr, M.D. He does not believe the work injury caused the need for the December 15, 1995 surgery. Instead, he associates the need for the surgery either on the bony prominence in the applicant's foot, or perhaps Dr. Gore's injections. Exhibit 2, report of Dr. Karr, pages 6 and 7. Dr. Karr suggests the injections were related idiopathic bursitis rather than a work injury.
Dr. Karr concluded the applicant did not sustain a serious or substantial right foot injury (2) on June 15, 1994 because (a) the applicant did not report it immediately, (b) Dr. Gore did not note evidence of trauma on June 30, 1994, and (c) the foot was asymptomatic from June 30 to October 1994.
2. Laches, causation, extent of disability.
The first issue is whether the applicant's claim is barred under Wis. Stat. § 102.12. At the hearing, the employer contended that the applicant's claim is barred under the statutory "laches" provision because she did not immediately report her injury. (3)
Because the applicant indisputably filed an accident report 17 months after the time of the injury, the part of the statute in question reads:
"102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employe knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled thereby."
The applicant stated she did not formally file an accident report until 17 months after the fall because she was not aware a parking lot injury was compensable. She discovered the injury was compensable only after talking to an attorney. The ALJ accepted that explanation as credible, and the commission concurs without hesitation. The commission doubts many lay people know that an injury on a sidewalk while walking to an employer's parking lot may be compensable.
Beyond that, the applicant testified she in fact reported the fall to her supervisor shortly after it occurred. On this record, the commission concludes the applicant's claim is not barred by Wis. Stat. § 102.12.
The next question is whether the applicant sustained an injury arising out of employment with the employer while performing services growing out of or incidental to that employment. See Wis. Stat. § 102.03(1)(a), (c) and (e). This involves three factual questions: (1) did the applicant actually fall; (2) did the fall occur in the course of employment, and (3) did the fall cause the condition and disability the applicant which seeks to have compensated?
The record answers each of these questions affirmatively. There is no evidence to directly contradict the applicant's testimony, credible to the ALJ who observed her testify, that she fell en route to the employer's parking lot. Even the negative inference that might be drawn from her failure to formally complete an accident report for 17 months is undercut by the applicant's credible testimony that she told her supervisor, Laura, about the fall the day after it happened. In addition, of course, Dr. Gore's June 30, 1994 note mentions a twisting injury two weeks earlier, which would be around the time the applicant testified she fell at work.
Further, as an injury in the normal course of going from work to the employer's designated parking lot, the injury is while "performing services in the course of employment" under Wis. Stat. § 102.03(1)(c)2. Indeed, the employer does not dispute this point.
Regarding the relationship of the fall to the disability and need for medical treatment, the commission, like the ALJ, credit's Dr. Gore's report. The commission believes Dr. Gore's opinion on the cause of the applicant's disabling foot condition better reconciles the applicant's history, which included a traumatic fall and the immediate onset of foot pain where none had existed previously. In addition, while the commission of course does not adhere to a "treating practitioner rule," (4) Dr. Gore had the advantage of firsthand observation of the applicant's foot near the time of the injury and Dr. Karr acknowledges the condition of the applicant's foot shortly after the injury is especially significant in this case.
In addition, Dr. Karr's conclusion that the applicant's foot condition is not compensable is undermined by its reliance on the applicant's failure to report the injury immediately. The applicant did not report the injury immediately because she did not think it was compensable, not for any medical reason. As explained above, the commission regards that explanation as highly credible, and it is entirely unrelated to the applicant's actual medical condition or its cause. Further, the applicant did treat with Dr. Gore on June 30, 1994, within two weeks of the injury, and did then relate her pain to the twisting injury of two weeks past.
Dr. Karr also noted the absence of symptoms from June 30 to November 1994, and that the applicant had sought treatment for unrelated problems during that period without mentioning her foot. However, Dr. Gore had administered a cortisone steroid injection to the applicant's foot on June 30, 1994, and his treatment records indicate the applicant obtained temporary relief from periodic cortisone injections through November 1995.
In sum, the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to her employment. It may be that the applicant's twisting injury would not have caused the disability were it not for the bony prominence already existing in the applicant's foot, but employer's take their workers as they are. E. F. Brewer Co. v. DILHR, 82 Wis. 2d 634 (1978).
The remaining question is the extent of disability from the injury. The periods of temporary disability sought by the applicant are well-documented, and the employer does not seriously dispute them. Likewise, Dr. Karr does not challenge Dr. Gore's estimate of permanent partial disability, at least not the rating itself.
3. Award.
As a result of the work injury, then, the applicant was temporarily and totally disabled from December 12, 1995 to January 29, 1996 (a period of six weeks and four days); from August 5 to August 20, 1996 (a period of two weeks); and from January 28 to April 28, 1997 (a period of 12 weeks and four days). Compensation for the first period is paid at the weekly rate of $154.45 (two-thirds of the applicant's average weekly wage of $231.67), for a total of $1,029.67. The second period is paid at a "renewed temporary disability rate" (5) of $163.73 per week, for a total of $327.46. The third period is paid at the renewed temporary disability rate of $168.70 per week, totaling $2,136.87. Adding these periods together, the applicant is entitled to $3,494 in temporary disability compensation.
The applicant is also entitled to permanent partial disability at five percent compared to amputation of the foot at the ankle. Under Wis. Stat. § 102.52(12), this results in 12.5 weeks of compensation at the weekly rate of $154.45 (two-thirds of the average weekly wage of $231.67), totaling $1,930.63, all of which has accrued.
In sum, the applicant is entitled to $5,424.63 in disability compensation. She agreed to an attorney fee set at 20 percent under Wis. Stat. § 102.26, or $1,084.93. The fee shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The remainder, $4,339.70 shall be paid to the applicant within 30 days.
The commission further finds that the applicant incurred the following reasonable and necessary medical expense to cure and relieve the effects of the work injury: from Sheboygan Orthopedics Associates, $499.46, of which $220.20 was paid by the applicant and $279.26 remains outstanding; and $133.54 in out-of-pocket medical expense.
In his final practitioner's report dated February 13, 1998, Dr. Gore gave a prognosis of "stable, will not change," but indicated that the applicant would need further symptomatic treatment. Accordingly, this order is left interlocutory only to permit the payment of future medical expense.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing as modified, affirmed.
Within 30 days from the date of this order, the employer shall pay all of the following:
1. To the applicant, Roxanne Ninneman, the sum of Four thousand three hundred thirty-nine dollars and seventy cents ($4,339.70) in disability compensation.
2. To the applicant's attorney, Dwight Darrow, the sum of One thousand eighty-four dollars and ninety-three cents ($1,084.93) as an attorney fee.
3. To Sheboygan Orthopedics Associates, the sum of Two hundred seventy- nine dollars and twenty-six cents ($279.26) for medical treatment expense.
4. To the applicant, the sum of Thee hundred fifty-three dollars and seventy-four cents ($353.74) as reimbursement of medical expenses paid.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed December 8, 1999
ninnemr.wrr : 101 : 7 ND § 3.19 § 8.14 § 8.47
§ 8.17
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
On appeal to the commission, the employer asserts the presiding ALJ was biased, and that it should be given a new hearing before another ALJ. In addition to the general assertion that it has been forced to endure an openly prejudicial attitude displayed toward it by the ALJ for years, the employer alleges that the ALJ's prehearing order regarding medical records in this case establishes bias. The commission rejects the employer's allegations of bias in their entirety.
The materials submitted by the employer in support of its claim of bias establish that a prehearing conference was held in this case on May 30, 1996. Thereafter, on June 5, 1996, ALJ Jones sent both parties a letter. The letter instructed the employer to submit an IME report if it challenged the extent of disability on or before receipt of the hearing notice to give the applicant a chance to respond to it in advance of the hearing if she wished. The letter also instructed the applicant to file her report on permanency, if she intended to seek permanent disability, on or before the date the hearing notice was sent.
The employer does not assert that it was unfairly rushed by the ALJ's requirement that the reports be submitted in advance of the hearing. Rather, the employer objects because by requiring the advance submission, the applicant would have the chance to respond to its IME report. This, the employer contends, is contrary to Wis. Stat. § 102.17(1)(d)(which requires ALJs to exclude reports not submitted at least 15 days in advance of the hearing) and "stacks the deck" against the employer. The commission rejects this assertion.
First, of course, ALJ Jones' letter requires both sides to submit their medical reports by the date of the hearing notice, thus giving both sides the chance to respond. Indeed, both of the applicant's WC-16-Bs were submitted over a year before the hearing was held, and many months before the hearing notice went out.
Further, Wis. Stat. § 102.17(1)(d) does not say that ALJs may not require reports to be submitted more than 15 days in advance of hearing. Rather it says ALJs must reject reports submitted less than 15 days before the hearing. That is, Wis. Stat. § 102.17(1)(d) in no way restricts an ALJ's efforts to require reports sooner if it will enable him or her to conduct a more orderly hearing. Indeed, even though there is no requirement in Wis. Stat. § 102.17(1), the department routinely requires applicants to file medical reports to substantiate their application well in advance of the hearing.
Finally, the expressed purpose of Wis. Stat. § 102.17(1)(d) is to prevent confusion and delay of the hearing or to prevent the requirement of an additional hearing based on last minute submissions. Indeed, the statutes expressly confer upon the ALJs authority to require parties to exchange or disclose materials as they see fit. See Wis. Stat. § 102.17(1)(b). An ALJ may legitimately require the advance submission and exchange of submit expert reports, so long as such disclosure requirements are carried out even-handedly as they were in this case.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the majority that the employe might not have known that she was covered for workers compensation in the beginning because the incident happened on her way to the employer's designed parking lot. I agree with Dr. Karr that the "6/15/94 right foot injury has not constituted significant workplace breakage; had not made necessary any of the subsequent right foot medical or surgical treatments."
Dr. Karr wrote "In my opinion, if Ms. Ninneman had incurred a significant or substantial right foot injury on or about 6/15/94, I would have expected her to have reported this to her employer within the June 1994 time frame; I would have expected her to have complained of right foot symptoms during her multiple visits to the Kohler Company Medical Department between June 1994 and late October 1994; I would have expected Dr. Gore to have found physical findings of a traumatic right foot injury on 6/30/94; I would have expected Dr. Gore's treatment on 6/30/94 to have been consistent with a traumatic etiology -- not an inflammatory bursitis. Please note that none of this had been the case. In my opinion, Ms. Ninneman had not incurred a serious nor substantial right foot injury on or about 6/15/94; all subsequent right foot treatments had solely been made necessary by developmental factors (prominent exostosis at the base of the right fifth metatarsal) - causally unrelated to prior workplace injury or exposure."
While I believe that the applicant probably did sprain her ankle on 6/15/94, I do not believe it was very severe since she continued to work and she was given no instructions by Dr. Gore to elevate her foot and there was no indication of swelling or bruising when she saw him. I am heavily influenced by the fact that she had multiple doctor visits between June and November 1994 and did not mention any foot problems. I do not believe her need for surgery was related to her work.
The majority was concerned that Dr. Karr placed emphasis on the fact the employe did not report the injury immediately as a work injury. I do not believe that harms his opinion. I also don't believe that Dr. Karr is saying that no injury occurred but that the injury wasn't very serious and completely healed. He was concerned that she did not mention foot problems in all her medical visits between June and November.
For these reasons, I would pay for her June 6/30/94 visit to Dr. Gore and cut off liability at that point. I would then dismiss the case.
__________________________________________
Pamela I. Anderson, Commissioner
cc: ATTORNEY DWIGHT D DARROW
DARROW DIETRICH & HAWLEY SC
ATTORNEY PAUL H TEN PAS
KOHLER COMPANY
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Footnotes:
(1)( Back ) The applicant had been treating with Dr. Gore for an unrelated back injury since 1993.
(2)( Back ) Dr. Karr, unlike the dissenting commissioner, did not diagnose a sprained ankle.
(3)( Back ) The employer did not discuss the "laches" defense under Wis. Stat. § 102.12 on appeal to the commission.
(4)( Back ) Conradt v. Mount Carmel School, 197 Wis. 2d 60 (Ct. App., 1995).