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

JOYCE NEUBAUER, Applicant 

PILLSBURY, Employer

ACE AMERICAN INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994001303

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 28, 2001
neubajo . wsd : 175 : 3  ND § 7.3 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the employer was not liable for an increased penalty under Wis. Stat. § 102.57, and that the employer did not violate a specific safety rule or the safe place statute. The applicant contends that the employer had an affirmative duty to make itself aware of her alleged medical condition and any possible restrictions prior to her employment. However, the statute does not require that the employer make itself aware of the applicant's restrictions. The evidence does not establish that the employer violated a safety rule or safe place statute. The administrative law judge appropriately noted that no specific OSHA violation occurred in connection with the applicant's injury.

The applicant testified that she was injured when placed on the shaker work on September 19, 1993. The applicant had given the employer information on a health protection questionnaire that she had arthritis, and that her arthritis required not long standing at work. The evidence indicates that the applicant had requested a stool in her prior work in final inspection assembly. However, the applicant did not request a stool or seek to use one while working at the shaker, and she did not inform her supervisor that she objected to such work. The evidence indicates that the applicant was moved off of the shaker work and then back again with no complaints to her supervisor. The evidence also does not indicate that the applicant ever gave the employer any medical restrictions from her treating physicians indicating that she was unable to perform her shaker work. Rather the applicant simply completed a health information form with her own self-imposed limitations.

The administrative law judge appropriately noted that the applicant's self-imposed or self-reported restrictions without more do not raise a liability or an obligation on the part of the employer to accommodate the applicant at the risk of violating Wis. Stat. § 102.57. At the time of injury the employer did not have any information that it was violating any medical restrictions which placed the applicant in a known or avoidable danger at the time she performed the shaker work. The applicant admitted that the only thing the employer knew about her allegation of restrictions is what she had written on the form. The applicant has included additional information with her petition for commission review. However, such additional information which was not entered into the record may not be considered. The commission's review is based on the testimony and exhibits presented at the hearing and there has been no reason put forward or found to allow additional evidence into the record. Given the fact that the applicant did not provide the employer with notice of any medical restrictions as it related to the shaker work, or other work that she performed for the employer, and the evidence that the applicant was able to ask for a stool when she required one while performing the final assembly work, but failed to request any accommodation or stool while performing the shaker work, and given the lack of evidence that the employer violated any safety rule or statute in having the applicant perform the shaker work, the evidence was sufficient to raise a legitimate doubt that the applicant was entitled to increased compensation based on her work injury.

cc: Attorney Aynsley B. Bourne

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uploaded 2001/07/02