Wis.LIRC WC Decision: Silberg, Robynn (1) - October 22, 1990 - ND � 3.6 - Injury Sustained in the Course of Employment; ND � 8.29 - Administrative Notice -- fact dispute over whether injury was caused by on-the-job or off-the-job incident -- "administrative notice" taken of entire record from UC case in which issue was whether employe falsely claimed to have been injured on (rather than off) the job, which false WC claim would have been UC "misconduct"

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

Petition for review was presented to the Labor and Industry Review Commission on behalf of the applicant. The employer and the insurer answered the petition.

The issues are whether applicant sustained an accident or disease causing injury arising out of her employment while performing service growing out of and incidental to that employment, the nature and extent of disability, and liability for medical expense. Hearings were held at Superior on February 16 and May 16, 1989, before an Administrative Law Judge of the Worker's Compensation Division (WC-ALJ) of the Department of Industry, Labor and Human Relations (DILHR).

The Commission has carefully reviewed the entire record, the petition of applicant, and the answer of the employer and insurer. The Commission has also conferred with the WC-ALJ to obtain his impressions as to the credibility of persons who gave testimony, including their candor, demeanor and manner of testifying. The Commission hereby sets aside the Findings of Fact and Order of the WC-ALJ and 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 beginning 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.

On March 9, 1988, the insurer filed its answer in which it denied that the "incident arose out of the course and scope of, employment," and contending that "any previous payments payments (sic) have been made under a mistake of fact." On May 11, 1988, the employer filed an amended answer in which it denied "that the alleged incident occurred at work."

On August 3, 1988, applicant initiated a claim for unemployment compensation (UC) benefits. The employer objected to her claim on several grounds, one of which was that she violated a "work rule about making false claims of injury on the job."

An unemployment compensation local office of DILHR denied her UC claim, which she appealed. Hearing was held at Superior on November 30, 1988, before an Administrative Law Judge of the Unemployment Compensation Division (UC- ALJ) of DILHR acting as an Appeal Tribunal. On December 8, 1988, the Appeal Tribunal issued its decision in which, among other findings of fact, it found that the employer's contention that the applicant falsified her work injury was not sustained, and concluded that she had been discharged by the employer in the week ending July 9, 1988, but that the discharge was not for misconduct connected with her employment. Accordingly UC benefit eligibility was allowed. The employer petitioned the Commission for review of that decision. As part of its review the Commission conferred with the UC-ALJ to obtain his impressions of the credibility of the witnesses, particularly the applicant and Robert Wilkinson. Based on such review and conference the Commission agreed with the evaluations of the UC-ALJ that the applicant was credible and that Wilkinson was not credible. It therefore issued its decision on March 30, 1989, in which it affirmed the decision of the Appeal Tribunal allowing UC benefits. [Commission UC decision] In a memorandum opinion attached to its decision the Commission set forth the impressions on credibility given by the UC-ALJ and also set forth additional reasons why it considered the applicant more credible than Wilkinson. The employer did not appeal the Commission's decision.

At the hearings on the applicant's Worker's Compensation claim many of the same witnesses appeared and testified, including the applicant and Wilkinson. The WC-ALJ concluded that Wilkinson was more credible and issued an order dismissing the application.

Wilkinson's testimony in essence was that the applicant had informed him in a telephone conversation sometime in March 1987 that she had injured her knee, but not at work. The applicant denied any such conversation with Wilkinson relating to her knee injury. In its conference with the WC-ALJ regarding credibility, the Commission learned that he had based his adverse credibility evaluation of the applicant largely on matters that he felt she should have unhesitatingly recalled with great precision and because he did not consider similar indications of lack of precision on the part of Wilkinson to be significant. The Commission does not accept the credibility evaluations of the WC-ALJ.

Since the parties have made repeated references throughout this proceeding to various aspects of the applicant's disputed claim for unemployment benefits, the Commission has taken administrative notice of the entire record of that proceeding.

Applicant's traumatic injury to her right knee on March 3, 1987, arose out of her employment while she was performing service 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, snyovectomy, manipulation of the knee under anesthesia in February 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 $117.00, amounting to $7,458.75, all of which has accrued. The attorney 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, aids 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 fee, 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.

Dated and mailed October 22, 1990.
ND � 3.6 � 8.29

Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

NOTE: This decision does not dispose of applicant's pending claim against the employer for its alleged unreasonable refusal to rehire applicant.

Appealed to Circuit Court. Set Aside and Remanded May 8, 1991. [subsequent commission decision and subsequent history]

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