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

DALE W BOHNERT, Applicant

WRIGHT TREE SERVICE INC, Employer

ST PAUL FIRE & CASUALTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-024396

Wright Tree Service, Inc. and St. Paul Fire & Casualty Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 19, 2002. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer on May 10, 2001, and if so, what are the nature and extent of disability and liability for medical expense.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birth date is December 2, 1975, was involved in a nonindustrial motor vehicle accident on May 5, 2000. The record contains no evidence concerning what injury the applicant sustained in that accident, except that he testified that he "had a hard time healing," and as a result lost his employment as a tree trimmer with a tree service business.

In August of 2000, he was involved in another motor vehicle accident in which he sustained what he described as "serious neck injuries." He received medical and chiropractic treatment and was released without restriction to begin his employment as a tree trimmer with the employer in late March or early April of 2001. However, he did continue to experience symptoms with his neck.

The applicant and a co-worker, John Gonyo, had agreed to alternate driving to the various worksites. The applicant missed approximately two weeks of work due to his neck symptoms, before returning to work on May 9, 2001. He was performing his duties with Gonyo and another co-worker, Michael Yarnot, on May 10, 2001, when an argument developed between the applicant and Gonyo. They had been discussing the ride-to-work arrangement and Gonyo wanted the employee to drive six days in a row because he had missed several days due to his absences. The employee said he would not and Gonyo blew up and lunged at him. He struck the applicant a glancing blow to the chin as he thrust his hands down and onto the applicant's chest and pushed him backwards. The applicant then picked up a pole saw and swung it in Gonyo's direction. At this point Yarnot yelled to the two men to stop what they were doing, and the altercation ended.

Dr. B. J. Dierschke's medical opinion that this incident resulted in a temporary aggravation of the applicant's preexisting neck condition is credible and uncontroverted by any other medical opinion of record.

Respondents argue that the applicant was the aggressor in the incident, because he allegedly was "in Mr. Gonyo's face" before Gonyo physically assaulted him. Given the size differential between Gonyo and the applicant, the fact that Gonyo was the individual who felt cheated by the applicant, and the administrative law judge's credibility impressions, the commission inferred that the applicant was credible when he testified that Gonyo lunged at him. Regardless, it is undisputed that Gonyo was the physical aggressor, having physically assaulted the applicant. Under these circumstances the aggressor defense is not available to the respondents.

Respondents also argue that the altercation did not arise out of the applicant's employment because the carpooling agreement was "solely personal" to the two men, and that the applicant stepped out of the course of his employment by engaging in the altercation with Gonyo. However, the assault grew out of an argument over the arrangement for carpooling to and from work. While this was not a dispute over the conditions on the worksite, it was a dispute which arose out of the work, because the carpooling was arranged to transport Gonyo and the applicant to and from work.

The applicant did not step out of the course of his employment by impulsively engaging in a verbal argument with Gonyo, who as previously noted, was the individual who felt cheated and therefore is inferred to have started the argument. Once Gonyo physically attacked the applicant, the applicant used poor judgment in picking up the pole saw and swinging it. However, this was also an impulsive, and in large part a defensive act, which did not constitute a substantial deviation from the employment.

The applicant's compensable work injury entitles him to temporary total disability from May 11, 2001 to July 13, 2001, a period of eight weeks and five days at the rate of $325.34 per week, totaling $2,873.84. The applicant's attorney is entitled to a 20 percent fee in the amount of $574.77, plus costs of $7.50.

Reasonably required medical expenses were also incurred as follows: Lutheran Hospital of LaCrosse in the amount of $2,106; Gundersen Clinic of LaCrosse in the amount of $1,612.00; Coulee Chiropractic Clinic of LaCrosse in the amount of $419.00; and to the applicant reimbursement of prescription drug expense in the amount of $14.09.

The administrative law judge left her order interlocutory, but Dr. Dierschke's WC-16-B indicated that further treatment would not be necessary, and his clinic notes indicate that the work-related condition had resolved and that the applicant had come back to his baseline condition as it was prior to May 10, 2001. Accordingly, there is no basis for leaving this order interlocutory.

NOW, THEREFORE this

ORDER


The administrative law judge's Findings and Interlocutory Order are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant compensation in the amount of two thousand two hundred ninety-one dollars and fifty-seven cents ($2,291.57); to the applicant as reimbursement for medical expense the sum of fourteen dollars and nine cents ($14.09); to the applicant's attorney, David Blackey, fees in the amount of five hundred seventy-four dollars and seventy-seven cents ($574.77) and costs in the amount of seven dollars and fifty cents ($7.50); to Lutheran Hospital of LaCrosse the sum of two thousand one hundred six dollars ($2,106.00); to Gunderson Clinic of Coulee Chiropractic Clinic of LaCrosse the sum of four hundred nineteen dollars ($419.00).

Dated and mailed November 27, 2002
bohneda . wpr : 185 : 8  ND § 3.14    § 3.31 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission reversed the administrative law judge's decision only with respect to the interlocutory nature of her order. As explained in the above findings, the credible evidence of record leads to the inference that the applicant will sustain no additional disability or medical expense which could be attributed to the work injury of May 10, 2001.

cc: 
Attorney David Blackey
Attorney Juliette C Dahms

Appealed to Circuit Court.  Affirmed, September 10, 2003.

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