DAREEN SCHOTT, Applicant

UNIVERSITY OF WIS MEDICAL FOUNDATION, Employer

ACUITY INSURANCE CO, Insurer

University of Wisconsin Medical Foundation and Acuity Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued on March 13, 2002. Briefs were submitted by the parties. At issue is whether the applicant sustained an injury to her left knee arising out of and in the course of her employment with the employer. If a compensable injury is found, additional issues arise concerning the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter. It hereby affirms in part and sets aside in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

The employer allotted 30 minutes for lunch, and it was supposed to be taken between noon and 1 p.m. However, Andree did not closely monitor when lunch was actually taken. The group went over to the clinic sometime between noon and 1 p.m. on May 25, 2000, but the applicant ate lunch when she came back, as did her co-workers. She did not consider her visit to the new clinic to have been her lunch break.

While outside the building but on the premises of the new clinic, the applicant had to walk over some rough terrain. By the time she got into the building she had very sharp pain in her left knee. It gradually died down to a strong ache, but persisted. She initially did not report an injury because she thought it would gradually heal on its own, however, the problem worsened and she went to Dr. Mary Clarke on June 9, 2000. Dr. Clarke took a history of a "slight pop" in the knee while the applicant was at work "approximately four or five days ago." She further noted that the knee condition had worsened and the pain had become severe. Dr. Clarke diagnosed a probable meniscal injury and referred the applicant for orthopedic consultation. On November 29, 2000, Dr. James Keene performed a left knee arthroscopy with medial meniscectomy for a meniscal tear, and debridement of the femoral condyle and lateral tibial plateau. Dr. Keene completed a WC-16-B on March 13, 2001, in which he listed the work incident of May 25, 2000, as causative. Respondents did not obtain a medical opinion.

The applicant wanted to go over to the new clinic to see what facilities there would be for storing supplies, because it was her job to order supplies and stock them. The credible inference is that she was also going to see the new clinic out of curiosity.

The applicant's walk to the new clinic was an act outside of her regular duties. Larson's black-letter rule in such instances is found at Chapter 27.01 of his treatise:

"An act outside an employee's regular duties which is undertaken in good faith to advance the employer's interests, whether or not the employee's own assigned work is thereby furthered, is within the course of employment."

Respondents argue that when the applicant went to the new clinic she was only advancing her personal interest in an "optional sightseeing trip." This is not a credible argument. The employee was curious to see the new building in which she was to work, but that curiosity was also directly linked to the purpose of familiarizing herself with the new facility. The applicant had no input into how the facility was to be constructed, but she was going to do her work there, and her knowledge of where various closets and rooms were to be goes directly to her work responsibilities, not to personal sightseeing.

The applicant went to see the new clinic with a group that included her supervisor, and while she was there she was clearly under the authority of that individual. It is also clear that the applicant did not eat lunch during the visit. The credible inference is that Andree knew the individuals involved would eat their lunch when they got back to the old clinic. Accordingly, the applicant's injury occurred during paid work time.

Respondents also argue that there is a legitimate doubt that the applicant injured her knee at the new clinic site. They point to the fact that the applicant delayed reporting the problem or seeking medical help for almost three weeks, and that nobody else witnessed an injury. However, the initial symptoms of the injury were such that the applicant reasonably believed her knee might heal on its own, and she therefore delayed reporting the injury and delayed seeking medical care. Dr. Keene's medical causation opinion is unrebutted, and is consistent with the applicant's credible testimony concerning the onset of knee pain she experienced while walking over the rough terrain.

Finally, respondents argue that all the medical expenses should be disallowed because there was no expert medical testimony that they were reasonable and necessary. Respondents assert that such testimony is required pursuant to Wisconsin Telephone Company v. Industrial Commission, 263 Wis. 380, 57 N.W.2d 334 (1953). That case, consistent with Wis. Stat. § 102.17 (1) (d), and long- established department practice, only requires medical testimony or a verified medical report from the provider of the medical services. Id. at 383.

Nevertheless, review of the medical invoices submitted not only reveals charges which were clearly related to the applicant's knee treatment, but also charges which cannot be so clearly related. In addition, the administrative law judge awarded amounts for certain medical expenses which are in excess of the amounts claimed on the invoices, and no explanation was provided for such discrepancies. Given the uncertainty surrounding the medical expense claims, the commission will leave this order interlocutory regarding them. The applicant will be given one opportunity to resubmit a verified summary of claims for her medical expenses attributable to the compensable knee injury and incurred up to the hearing date of December 10, 2001. Respondents may dispute any claims submitted in this summary, and if such dispute(s) cannot be resolved, opportunity for a new hearing regarding this issue will be available.

The applicant is entitled to temporary total disability for the periods of November 29 through December 17, 2000, and December 18 through November 1, 2001, for a period of four weeks and two days, which at the applicable rate of $328.00 per week totals $1,421.33. A 20 percent attorney's fee is authorized in the amount of $287.24.

The applicant may sustain additional disability and/or medical expense due to her compensable knee injury, and therefore jurisdiction will be reserved with respect to all issues.

NOW, THEREFORE this

Jurisdiction is reserved for such further findings and orders as may be warranted, consistent with this decision.

Dated and mailed October 10, 2002
schotda . wpr : 185 : 8 ND § 3.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

cc: 
Attorney Nelida Cortes
Attorney Kurt R. Anderson

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