LOREEN KEMPFER, Applicant

MADISON METROPOLITAN SCHOOL DISTRICT, Employer

L M INSURANCE CORPORATION, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 10, 2001
kempfel . wsd : 101 : 3 ND § 3.34

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

1. Facts and posture.

The applicant seeks compensation for disability and medical expense following a right thumb injury that she alleges occurred as she tried to walk through a door on the employer's premises. She sought treatment on the day of injury and later underwent a surgery to her thumb.

Following surgery, the applicant experienced post-operative pain, which continued to be a problem into May 2000, requiring treatment at the UW pain clinic. Blocks (injection of anesthetic) were suggested, but the applicant declined. She was making progress with a physical therapist. See Engber note of May 23, 2000, exhibit E.

The parties have submitted reports from medical experts regarding the cause and nature and extent of the applicant's disability. Treating surgeon Engber's most recent WKC-16-B reports that the applicant hyperextended her thumb when she tried to catch herself from falling as she was opening a door, causing an ulnar collateral ligament injury of the metacarpal joint. As a complication of the surgery, Dr. Engber continued, the applicant developed reflex sympathetic dystrophy (RSD) of the right hand. Accordingly, he rated permanent partial disability at 15 percent compared to amputation at the right hand.

The independent medical examiner (Stephen Barron, M.D.), for his part, stated that if the applicant accurately described the work injury, she in fact sustained an ulnar collateral ligament rupture at the metarcarpal joint of her right thumb. He did not think she had reflex sympathetic dystrophy. He rated permanent partial disability at twenty-five percent compared to loss at the metacapophalangeal joint of the right thumb. See exhibit 2.

In his practitioner's report, however, treating surgeon Engber said:

"Although I agree with Dr. Barron (IME) that the injury was to the metacarpophalangeal joint of Loreen's right thumb, the injury has impaired the use of Loreen's entire right hand in repetitive tasks, strength and flexibility. Therefore, I compare Loreen's injury to amputation at the wrists and assess 15 percent PPD to the right hand."

The ALJ found the applicant had sustained a compensable injury, and adopted Dr. Engber's rating of permanent partial disability at fifteen percent compared to loss of the hand at the wrist. The employer and the insurer (collectively, the respondent) appealed.

2. Discussion.

On appeal, the respondent first asserts that, given certain inconsistencies in the way the applicant described her fall, the single mention of the wooden step in emergency room doctor Lindsay's note, and the testimony that the area where the applicant fell was not a waxed floor but a grated area, there is legitimate doubt about whether the applicant even slipped at work on August 24, 1999.

However, the commission must reject this argument. The applicant has consistently reported losing her footing near the door and catching her thumb. The medical records from the date of injury and shortly thereafter substantiate that report. The applicant told Principal Kallin on the date of injury she fell, and Kallin admits that. Principal Kallin also admits that she saw the applicant with ice on thumb shortly after the applicant said she fell. Principal Kallin herself slipped on the floor. At the emergency room on the day of the fall, the doctors discovered a condition consistent with the type of injury the applicant described.

It is true the applicant's injury was not witnessed, but the ALJ found her testimony credible. Further, some level of inconsistency is not unusual in circumstances where one tries to reconstruct a traumatic event happening quickly like a fall or near fall. The commission declines to give much weight to the fact that emergency room doctor Lindsay's note alone among all the medical records mentions a wooden step. In short, the inconsistencies in this case do not create legitimate doubt on the facts as they stand. The commission adopts the ALJ's finding that the applicant stumbled as she reached the doors, and caught her thumb.

The respondent next argues the fall, if it did occur, was idiopathic. "Idiopathic" in this context means some force or thing peculiar to an individual. In worker's compensation, an injury is idiopathic when it arises from a force or source solely personal to the individual.

The term is best understood in its most common usage -- an idiopathic fall. An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work, not due to any hazard or danger of employment, but instead due to a disease, physical disability, or condition personal to the injured worker. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). Such an accident or fall, even though occurring while a worker is performing services for an employer, does not arise out of employment as is required under Wis. Stat. § 102.03(1)(e). In addition, an "unexplained fall," which is clearly attributable to neither an idiopathic fall nor evidence of a cause related to employment, is not compensable simply because it occurred while the worker is performing services. Id.

On the other hand,

"it has been said accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of the location constituting a zone of special danger."

Cutler-Hammer Inc. v. Industrial Commission, 5 Wis. 2d 247, 254 (1958).

In cases of idiopathic falls and non-idiopathic but unexplained falls not resulting from a "zone of danger," then, the employer is not liable for injuries caused by the fall. However, where the fall occurs while the applicant is in a zone of special danger, it "arises out of employment" and is compensable. See, generally, Kraynick v. Industrial Comm., 34 Wis. 2d 107 (1967) and Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969).

The supreme court has held that a level surface is not an area of special danger. Peterson v. Industrial Comm., 269 Wis. 44 (1955). The court also noted in Kraynik, at 34 Wis. 2d 107, 113 (1967), that it was not prepared to accept the contention that in the absence of a special condition or circumstance, a level floor in a place of employment is a hazard. On the other hand, a concrete stairway is a zone of danger so that a fall on such a stairway arises out of employment. Cutler-Hammer Inc. v. Industrial Commission, 5 Wis. 2d 247 (1958).

In this case there is evidence that the tiled floor was in fact slippery; Principal Kallin so testified. Further, the fall occurred while the applicant was passing through a door, not just walking on a level floor. The cases cited by the respondent, Beckwith (1)  and Durkee (2),  do not involve doorways. Durkee involved a fall in a hallway on a courthouse terrazzo floor which the applicant failed to prove was slippery. (3)   Beckwith includes a history where the medical notes document a "grabbing" sensation in the applicant's leg itself just before the fall. In any event, the commission is satisfied that the facts in this case -- the recently waxed and slippery-when-wet tile floor upon which Principal Kallin slipped only minutes after the applicant's accident, the doors through which the applicant had to pass and on which she injured her thumb, and possibly even the transition from the tile floor to the grated area -- posed a zone of special danger making the applicant's injury compensable.

The employer next argues that the applicant's permanent partial disability should be rated at the thumb rather than the hand. However, Dr. Engber's note fully explains his rating compared to amputation at the hand. The applicant did not have a good result from the surgery, as treating surgeon Engber himself acknowledges. Finally, the applicant testified about continuing problems affecting her whole hand and the ALJ who observed the applicant as she testified credited that testimony.

The respondent further asserts that if the applicant does have RSD in the hand, it should only be liable for part of the resulting disability. The respondent suggests that some of the resulting disability should be apportioned to the 1996 fall to the shoulder, which caused shoulder and forearm pain. However, the medical notes from the 1996 injury do not mention hand problems. Nor does any doctor specifically relate the 1999-2000 hand problem to the 1996 shoulder and forearm injury, or provide any percentages upon which to base an apportionment.

cc: 
Attorney Shana R. Lewis
Attorney Ronald S. Aplin

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(1)( Back ) Beckwith v. Dean Medical Center, WC claim no. 96066236 (LIRC, May 14, 1998).

(2)( Back ) Durkee v. County Marathon Other, WC claim no. 91-043764 (LIRC, April 16, 1992), aff'd sub nom. Durkee v. LIRC, case no. 93-0920 (Wis. Ct. App. October 26, 1993).

(3)( Back ) In the court of appeals affirmance in Durkee, the court emphasized that an injured worker need only prove a floor is slippery, not why it was slippery, to show a zone of special danger.

uploaded 2001/08/13