DEBRA LINSTROTH, Applicant

MODINE MFG CO, Employer

SENTRY INSURANCE A MUTUAL CO, 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 July 31, 2002
linstro . wsd : 101 : 8 ND § 3.34 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

On appeal, the employer and its insurer (collectively, the respondent) raise essentially two arguments: (1) that the applicant has failed to prove disability from an accident or disease arising out of employment, and (2) that, assuming a compensable injury is proven, the ALJ erred in awarding temporary disability to the date of hearing.

1. Injury "arising out of employment."

The applicant fell while trying to get an unpowered pallet jack loaded with a heavy crate up a concrete grate or ramp, after pulling the loaded pallet jack across a wet floor. The ramp was ten feet long, with about a one-foot change in height. The concrete ramp did not have "no-skid" strips.

The applicant's testimony provides some detail about the incident. She tried three times to pull the load up the ramp. In her first attempt, she did not make it. She straightened the pallet jack out, and tried again. On her second attempt, she nearly pulled the loaded pallet jack to the top of the ramp. Because she nearly made the second attempt, she gave it a third try.

Part way up the ramp on the third attempt, the applicant realized she was not going to be able to pull the pallet jack up the ramp on that attempt either, and she started letting the jack back down. The applicant began to tip, and felt the handle of the jack was "going," or apparently moving in another direction. The applicant then fell all the way over.

The applicant prepared an accident report on the day of injury. In it, she reported that she slipped in the water. However, she told a doctor several weeks later she could not recall if she slipped or fell because of the weight of the load. At the hearing, she testified she felt she slipped but could not say with certainty that she had.

The respondent thus contends that this was an "unexplained fall" requiring the applicant to show it was not idiopathic in nature. On this point, the respondent points out that the applicant testified that she, not the load, tipped; that she testified that she only "felt" she slipped and admitted she had no specific recollection of slipping; that some of her descriptions of the work injury state that she did not know what happened, or that she did not know if she slipped or the load was too heavy; that it is not even clear if she was on the ramp or standing in the water at the base of the ramp when she fell; and that the ten to one slope of the ramp is not all that great anyway.

An idiopathic fall, or one that is due to a personal condition not caused or aggravated by employment, is not compensable. Peterson v. Industrial Commission, 269 Wis. 44, 49 (1955). Similarly, a truly "unexplained fall," or one attributable to neither an idiopathic/personal cause nor a cause related to employment, is not compensable simply because it occurs while a worker is performing services. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404 (1969). Rather, in order to show an injury that arises out of employment as is required under Wis. Stat. § 102.03(1)(e), the worker must generally show a fall explained by evidence of a cause related to employment. Id., at 406.

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). Thus, where an employee's work requires him or her to be in a hazardous situation, an injury which he or she sustains may be said to arise out of employment, under what is described as the "positional risk doctrine." Kraynik v. Industrial Comm., 34 Wis. 2d 107, 112 (1967).

Further, while acknowledging that courts ordinarily may not presume that unexplained injuries occurring on an employer's premises arise out of employment, the supreme court has observed that those holdings come from cases where the court could not find a zone of special danger so the positional risk doctrine did not apply. Allied Mfg., Inc., v. ILHR Department, 45 Wis. 2d 563, 566, 568 (1970). If a worker is present at a place where she or she is injured through the conditions of a location constituting a zone of special danger, the positional risk doctrine applies and the injury is compensable. Id., at 45 Wis. 2d 569.

The court noted in Kraynik, at 34 Wis. 2d 113, 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 has been held to be 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, 254 (1958).

The accident in this case, of course, involves an inclined, wet surface. (1)    Moreover, the applicant was not simply walking or standing when she fell, but was in the process of pulling a load up a ramp. In the accident report filled out on the date of injury, the applicant indicated she slipped on the wet floor while going back down the ramp. The employer's supervisor also reported the applicant slipped in water, and indicated that due to the weight of the load, the incline and the standing water, the applicant should have used a motorized pallet jack. Exhibit H. Despite the statements contained in the reports filled out on the very day of injury, the respondent takes the position that, because the applicant could not positively recall slipping thereafter, hers was an unexplained fall and noncompensable.

The respondent's medical examiner, pointing to the applicant's statements that she was disoriented after the fall, opines that the fall was the result of a syncope, or fainting spell, unrelated to work. This opinion, if accepted, could establish a noncompensable idiopathic fall. Of course, the applicant has no history of fainting spells, at least none has been shown. In this respect, the facts clearly differ from those in Kraynick, at 34 Wis. 2d 111, where the court found an idiopathic fall by a worker who was an alcoholic and had a documented history of head injury and blackouts. Further, when she fell, the applicant was not simply standing or walking, but was in the process of moving a load on an unpowered pallet up an incline in a wet environment. The commission declines to find an idiopathic cause for the applicant's fall under the facts of this case.

Finally, of course, regardless of the applicant's memory by the time of the hearing in December 2001, she reported slipping in the water on the day of injury in May 1999. Given the extreme plausibility of a slip under the circumstances here, the commission, like the ALJ, finds the slip did occur. In short, the commission is satisfied that the applicant was in a zone of danger when she fell, and that her fall arose from that zone of danger. Consequently, the commission affirms the ALJ's finding of a compensable injury arising out of employment.

2. Extent of disability.

The next issue is the extent of disability. The ALJ found the work injury resulted in the need for three spinal surgeries, and awarded temporary disability to the date of hearing.

Prior to the May 1999 work injury, the applicant was in a car accident in 1993, resulting in a herniated lumbar disc. Surgery was not necessary, however. She was told to continue exercising. She apparently continued to have some back symptoms into 1998. The car accident apparently did not injure her cervical spine. See exhibit 4, report of Delahunt.

Nonetheless, as the respondent points out, there is evidence that the applicant received periodic treatment for back and neck pain in 1997. Most significantly, as recently as April 1999, one month before the injury, an unsigned note indicates that the applicant could not sleep due to neck and back pain, and needed time off work. Exhibit 5. However, the applicant denied making that complaint in April 1999.

After the fall at work on May 12, 1999, the applicant hurt all over. The report from the date of injury describes only back pain, but a claim form completed later states headaches started a day so after the fall. The applicant was referred to Dr. Rafiullah whom she saw on June 24, 1999.

Dr. Rafiullah noted the 1993 automobile accident, and diagnosis of a herniated lumbar disc, with manageable pain. The doctor reported she was doing all right until May 12, 1999, when she fell pushing a crate.

Dr. Rafiullah noted that the applicant was left with increased back pain, and she had neck pain if she tilted her head. His assessment was herniated disc at L4-5 with possible radiculopathy, myofascial pain, and possible cervical degenerative disc disease. He ordered a CT myelogram which showed a possible protrusion or extrusion at C6-7 on the right.

Dr. Rafiullah ultimately performed a discectomy and fusion at L4-5 and L5-S1 in October 1999 and a discectomy, decompression and fusion at C6-7 in January 2000. The applicant had increased pain after the cervical surgery, and a second cervical surgery, a C5 to C7 fusion, was performed by Dennis Maiman, M.D., on March 28, 2001.

Regarding the cause and extent of disability, Dr. Rafiullah describes the injury as occurring when the applicant was pulling a crate and slipped and fell, causing her pain in her neck and low back. He diagnosed cervical radiculopathy secondary to degenerative disc disease of the cervical spine, and lumbar radiculopathy and instability at L4-5 and L5-S1. Regarding causation, he marked the Lewellyn 3 (precipitation, aggravation, and acceleration beyond normal progression) causation box as to both conditions. He deferred to Dr. Maiman for a disability rating. Exhibit A.

Dr. Maiman submitted a narrative report dated October 9, 2001. Exhibit C. He states:

"As you know, she underwent an anterior cervical fusion under Dr. Rafiullah's care for a work-related injury in 2000. Unfortunately, she did not significantly improve, and continued to have radicular changes, which did not respond to nonoperative treatment.

"There is little doubt that there is a connection between the first and second operation. Again, she had continuing nerve root compression which was related to her previous injury. In addition, there was the aggravation of the fusion at adjacent segments, necessitating a multilevel procedure.

"Thus, while I am unable to say that the work injury was directly related to my surgery (although I do believe it to be the case) there is little doubt that it was necessitated by the C6, 7 fusion performed in January by Dr. Rafiullah."

Dr. Maiman submitted a second narrative report dated November 15, 2001. Exhibit B. He opined the applicant had not yet reached a healing plateau, and probably would not before March 2002.

The respondent relies on the report of its independent medical examiner, David Zeman, M.D. The first report is dated January 15, 2001. As noted above, Dr. Zeman attributes the fall to an unprovoked and unwitnessed syncopal episode, that is a fainting spell, noting she was not sure if she slipped and fell.

Assuming a work-related slip and fall, however, Dr. Zeman concluded the applicant would have had only the normal strains and contusions associated with such a fall. He pointed out that the applicant had degenerative rather than traumatic conditions involving the neck and back. He concluded that treatment after August 24, 1999 was treatment for that underlying condition rather than her work injury. He concluded specifically that the lumbar and cervical fusion were done for discogenic pain from the degenerative disc disease in the lumbar and cervical spine, rather that as a result of the work injury.

In a follow-up report, done in November 2001, Dr. Zeman opined the second surgical fusion done by Dr. Maiman in March 2001 was necessitated by whatever made the first necessary; that is, the underlying degenerative disease. He noted (as he had in her earlier report) that she showed signs of symptom magnification. He could not account for her complaints of continuing pain at the time of this examination in November 2001, noting that there was no sign of a failed fusion, and that a stable fusion would be expected to be strong, stable and symptom- free.

The ALJ adopted the opinions of Drs. Rafiullah and Maiman, and awarded compensation for temporary total disability to the date of the hearing. The respondent contests this finding, urging the commission to adopt IME Zeman's opinion and conclude that the injury, if it happened, caused only short term temporary disability from which the applicant recovered without permanency.

The commission acknowledges the applicant's automobile accident, and occasional symptoms prior to the work injury. However, the applicant denies the complaints listed in the unsigned note of April 1999 at exhibit 5, and the ALJ, who observed the applicant testify, by-and-large credited her testimony. Moreover, even if the applicant did have some prior symptoms resulting in periodic treatment from her pre-existing condition this would not be wholly unexpected. Nor do prior symptoms rule out a precipitation, aggravation, and acceleration beyond normal progression from the work injury, particularly where, as here, the applicant began treating more often and for dramatically increased complaints following the injury.

Further, reading the opinions of Drs. Rafiullah and Maiman together, the commission is satisfied the applicant's work injury precipitated, aggravated, and accelerated the applicant's pre-existing degenerative condition in her cervical and lumbar spine, resulting in the need for surgery and consequent temporary disability. While Dr. Maiman's report may seem equivocal on whether the work injury directly caused the need for the surgery he performed, he definitely opined the cervical surgery he performed was necessary because of Dr. Rafiullah's surgery. Dr. Rafiullah, of course, opines that both the cervical and lumbar conditions were caused by the work injury. Given the nature of the injury and the applicant's testimony concerning her symptoms, which the ALJ who observed her as she testified found credible, the commission accepts the opinion of Dr. Rafiullah on this point. The commission accordingly affirms the ALJ's findings on the nature and extent of disability.

cc: 
Attorney Daniel J. Kelley
Attorney Daniel L. Zitzer

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(1)( Back ) While water had collected on the floor below the ramp, the commission infers that, after three attempts to pull the pallet jack through the water and up the ramp, the ramp was wet as well. 

uploaded 2002/08/09