BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


ROBYNN A. SILBERG, Applicant

AMSOIL, INCORPORATED, Employer

TRAVELERS INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 87-016478


The applicant submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on July 7, 1989. The employer and the insurer answered the petition for review. On October 22, 1990, the Commission issued its Decision and Interlocutory Order, which set aside the Findings of Fact and Order of the Administrative Law Judge. [October 22, 1990 commission decision]  Respondents commenced an action for judicial review of the Commission's decision, and on May 8, 1991 the Circuit Court ordered the matter remanded to the Commission for reconsideration of its decision and such other proceedings as may be appropriate based on that reconsideration. This order was treated by the Commission as having the effect of setting aside its Decision and Interlocutory Order of October 22, 1990.

Pursuant to the court's order, the Commission advised the parties in writing on June 7, 1991 that it proposed, in reconsidering its decision, to take notice of the contents of certain described documents in the Unemployment Compensation Division files on applicant. [June 7, 1991 commission decision]   The parties were allowed 30 days within which to file with the Commission comments on its proposal so to take notice.

On June 17, 1991, counsel for applicant filed a written statement indicating that applicant had no objection to the Commission taking notice of the documents in question.

On July 9, 1991 counsel for respondent filed written comment and argument with the Commission objecting to the Commission taking notice of the documents in question.

Pursuant to the court's order, the Commission has carefully reviewed the entire record in this matter, including the documents described above, and has reconsidered its decision, and it now makes the following:

FINDINGS OF FACT

Applicant worked about three years, beginning in October 1984, as a clerk typist for the employer, a manufacturer of synthetic lubricants. On Tuesday, March 3, 1987, she slipped on a wet spot on the tile floor of the break room. She did not fall, but her right knee was twisted and hyperextended. The next morning she was late for work because of pain in her knee. She informed the employer that day of her slipping in the break room and the reason for her tardiness. She sought medical treatment on March 5 and continued to work until March 23 when the swelling and pain in her knee had significantly increased.

An arthroscopy was performed on the applicant's knee on March 24, which resulted in removal of some fragments and a diagnosis of synovial chondromatosis. Following the arthroscopy she was off work while undergoing treatment and physical therapy until she returned to work on May 11, 1987. The insurer paid the applicant temporary total disability from March 3 until May 11, a period of nine weeks and four days, at a rate of $122.67 a week, totalling $1,185.78. The insurer also paid the medical expenses which had been incurred.

Applicant continued to experience irritation, pain, stiffness and swelling in her knee with episodes of catching and locking, leading to her referral to the Mayo Clinic for evaluation on December 3, 1987. On December 4 she underwent an anterior and posterior synovectomy, and thereafter continued under active medical treatment and therapy until she was released to return to work on June 1, 1988, with limitations to sedentary activities. The employer did not permit her to return to work and returned her personal belongings to her on or about July 5, 1988. The employer did not give her any reason for its refusal to permit her to return to work.

The insurer, after paying two weeks of temporary total disability in December, 1987, discontinued further payments. On February 17, 1988, the applicant filed her application for hearing, seeking additional temporary total disability, permanent partial disability, and other compensation.

Applicant's traumatic injury to her right knee on March 3, 1987, arose out of her employment while she was performing services growing out of and incidental to that employment. The injury caused disability by precipitation, aggravation and acceleration of a pre-existing degenerative condition beyond its normal progression. The extent of permanent disability is 15 percent compared to amputation at the knee. The necessary and reasonable medical treatment for the disability includes the arthroscopy, synovectomy, manipulation of the knee under anesthesia on February 28, 1988, therapy and other related treatment. Applicant was unable to work because of the disability from March 23 to May 11, 1987, and from December 3, 1987 through May 31, 1988. In addition, the disability may require further treatment and result in further disability.

Accordingly, applicant is entitled to temporary total disability compensation for the period from March 23 to May 11, 1987, both dates exclusive, a period of 6 weeks and 5 days, and for the period from December 3, 1987, through May 31, 1988, both dates inclusive, a period of 25 weeks and 5 days, at a weekly rate of $122.67, amounting in all to $4,007.21. She is further entitled to permanent partial disability for 15 percent of her right knee, which is 63.75 weeks at a weekly rate of $177, amounting to $7,458.75, all of which has accrued. The attorney's fee is fixed at $2,293.19.

Travelers Insurance Company is liable for payment of the following as medical expenses: St. Mary's Hospital of Rochester the sum of $4,702.77; Methodist Hospital of Rochester the sum of $1,544.05; Mayo Clinic of Rochester the sum of $5,759.20; Superior Memorial Hospital the sum of $3,722.75; and for various medications, aides and related items the sum of $799.42. Since some portions of these medical expenses have been paid by the applicant or others, jurisdiction is reserved as to the designation of parties to be paid or reimbursed.

Because applicant may incur further disability and may require additional treatment to cure and relieve the effects of her injury, jurisdiction is reserved for such findings and order as may be warranted.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

That forthwith Travelers Insurance Company shall pay to the applicant, Robynn A. Silberg, as compensation, the sum of Nine thousand one hundred seventy-two dollars and seventy-seven cents ($9,172.77), less the amount of any temporary total disability payments it has heretofore paid to applicant; to Attorney James Cirilli, as attorney's fees, the sum of Two thousand two hundred ninety-three dollars and nineteen cents ($2,293.19); and the medical expenses as set forth above to the proper payees upon proper determination as to the amounts payable to each.

Jurisdiction is reserved for such further findings and order as may be warranted.
ND § 3.6   ND § 8.29

Dated and mailed July 18, 1991

/s/ Kevin C. Potter, Chairman

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The single significant issue in this case for the Commission, as the trier of fact, is whether to believe Wilkinson, who testified that applicant admitted to him that her injury did not occur at work, or applicant, who denied making any such statement to Wilkinson and who testified that the injury did occur at work on March 3, 1987. Pursuant to the court's remand order, the Commission has reconsidered its decision on this issue. It has again concluded that it believes the testimony of applicant over that of Wilkinson.

Applicant's testimony is credible and internally consistent. There are, however, a number of reasons to doubt Wilkinson's testimony. Wilkinson was, at the time of the worker's compensation hearing, dependent upon receipt of worker's compensation benefits from respondent, and his wife was also employed by Amsoil. His claim that he did not know who had paid for his flight out from California in order to testify is difficult to believe and seems disingenuous, especially when compared to his direct concession in his testimony in the unemployment compensation proceeding, that Amsoil had flown him out to testify. There were also troubling inconsistencies in his testimony. At the unemployment compensation hearing he testified that the alleged conversation took place in mid-March, while in the worker's compensation hearing he testified first that it occurred "on or about March 3" and then that it occurred in the first part of March but after March 3. Whereas at the unemployment compensation hearing Wilkinson claimed that applicant told him she had hurt herself at her grandmother's house, at the worker's compensation hearing he was indefinite on whether she said it was her grandmother's place or her grandfather's or grandparents. The distinction is significant because the evidence showed that, while her late grandfather owned a farm at which her parents sometimes lived, her grandmother lived elsewhere, and at the time of the accident applicant had been estranged from this grandmother for years. At the worker's compensation hearing Wilkinson testified for the first time that the applicant allegedly told him that she had hurt herself on certain "back steps"; he had mentioned nothing whatsoever concerning "back steps" at the unemployment compensation hearing. At the unemployment compensation hearing he claimed that applicant told him that she had no insurance, while at the worker's compensation hearing he claimed that applicant told him she did not have enough insurance to cover her injury.

As noted in the original decision, the Commission did consult with the worker's compensation Administrative Law Judge concerning his impressions as to the credibility of witnesses, and he indicated that he had based his adverse credibility evaluation of the applicant largely on the fact that he felt she should have recalled certain matters unhesitatingly and with greater precision. There were similar indications of lack of precision on the part of Wilkinson, but the worker's compensation Administrative Law Judge evidently did not consider these to be significant. The Commission is not inclined to agree with this credibility assessment because it appears to apply differing standards to the evaluation of the two witnesses' testimony.

In addition to the factors mentioned above, another factor in the Commission's disagreement with the worker's compensation Administrative Law Judge's credibility assessment is the procedural history of applicant's unemployment compensation claim, as evidenced by the documents of which notice has been taken. In that case, another Administrative Law Judge who heard and observed applicant and Wilkinson testify concerning the same significant issue as presented in this case arrived at an assessment on credibility completely contrary to that of the worker's compensation Administrative Law Judge.

The Commission does not rely directly on the opinions of the unemployment compensation Administrative Law Judge in deciding herein that applicant was most credible; it has arrived at that decision based simply on its consideration of the content of the testimony of applicant as compared to that of Wilkinson. The Commission's knowledge of the credibility assessment of the unemployment compensation Administrative Law Judge -- of which it was unavoidably aware by virtue of its familiarity with the facts of the case gained in the performance of its statutory role, see, Patterson v. University Board of Regents, 114 Wis. 2d 495, 503, 339 N.W.2d 130 (Ct. App., 1983), aff'd, 119 Wis. 2d 570, 350 N.W.2d 612 (1984) --  has simply been one factor in the Commission's decision not to extend any particular deference to the assessment of the worker's compensation Administrative Law Judge. Where two quasi-judical officers hear and observe similar testimony and come to such differing assessments as to credibility, it suggests that the demeanor of the witnesses while testifying, may, in that particular case, not be a helpful factor in evaluating credibility.

The Commission has considered Respondent's objections to its taking notice of the documents in question, but it finds those objections and the arguments advanced to support them to be unpersuasive. The Commission's implicit authority to take notice of records in its possession evidencing the procedural history of related claims before the Commission, is not dependent on the records being "newly discovered evidence."   Furthermore, the Commission does not treat the matters of which it has taken notice as "binding" in any respect. They serve simply as indications that in a related proceeding an Administrative Law Judge obtained impressions as to the credibility of applicant and Wilkinson that differred significantly from the impressions obtained by the workers compensation Administrative Law Judge. This is but one factor the Commission has considered.

cc: Leslie Altman, Attorney
LeFevere, Lefler, Kennedy, O'Brien and Drawz

James Cirilli, Attorney
Peterson, Cirilli, Moran and Gondik

Fred Simon, Attorney
Illgen, Peterson and Ness

110 : CD0246


Appealed to Circuit Court.  Reversed February 21, 1992.   Circuit Court Decision appealed to Court of Appeals.  Circuit Court decision reversed and LIRC decision reinstated, December 8, 1992, sub nom. Amsoil, Inc. and Travelers Insurance Company v. LIRC and Silberg, 173 Wis. 2d 154,  496 N.W.2d 150 (Ct. App. 1992), (holding that LIRC erred in taking "administrative notice" without providing opportunity for hearing, but that the error was harmless because other evidence in the record suppported the decision).

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