MARK S. WITKOWSKI, Applicant

ARPS MANUFACTURING, INC., Employer

TRANSPORTATION INSURANCE COMPANY, Insurer

Petition for review was presented to the Labor and Industry Review Commission alleging error in the administrative law judge's Findings and Interlocutory Order, issued on November 5, 1987. The applicant did not submit an answer to the petition. At issue is whether the applicant sustained an injury arising out of and while performing service growing out of and incidental to his employment, nature and extent of disability, and liability for medical expense.

The Commission has reviewed the entire record in this matter and hereby reverses the Findings and Interlocutory Order of the administrative law judge, and makes the following:

On April 15, 1986, the applicant began working for the respondent, a manufacturer of farm equipment. He worked as a press operator which involved taking parts weighing one to three pounds out of a tub, positioning them under the press for stamping, and then placing the finished parts into another tub. He performed this work in a standing position.

On July 22, 1986, he performed this work from 7 a.m. until his break time at 9:25 a.m. Then he left his work station, obtained some food, and went to a company picnic table which employes used for breaks. Ten minutes later the break ended, and as he rose to go back to work, he felt a sharp pain in his back. He walked approximately 30 feet and stopped to tell his foreman that the back pain was becoming increasingly severe. He rested in the foreman's office for approximately 45 minutes, but the pain still worsened. He did not return to work that day or again until August 15, 1986.

The applicant was treated by Dr. J. E. Pilon, who suspected a herniated vertebral disc. However, x-rays were negative, and Dr. Pilon released the applicant for full duty on August 15, 1986.

The applicant was on the employer's premises finishing a ten-minute break at the time he experienced his back pain. This was not a significant deviation from his employment, and under the personal comfort doctrine, he must be deemed to have been performing service growing out of and incidental to his employment. However, in order for the back injury to be compensable, it must also be demonstrated that the injury arose out of his employment.

The applicant did not experience any back pain while he was performing his work as a press operator. He felt the pain only as he rose from the picnic table. The administrative law judge held that the injury arose out of the applicant's employment because it would not have happened but for the fact that the conditions or obligations of the employment put the applicant in a position where he was injured. The administrative law judge characterized this finding as being in accordance with the positional risk doctrine. The positional risk doctrine was explained and adopted by the court in Cutler-Hammer v. Industrial Commission, 5 Wis. 2d, 247 at 253-54 (1958) as follows:

"The 'positional risk' interpretation has been phrased in various ways. The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him. . .

"Applying the 'positional risk' doctrine 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."

The court's explanation makes it clear that in order for the positional risk doctrine to be applicable, not only must the employment cause the employe to be in a particular place at the particular time he is injured, but also the injury must be caused by a force not solely personal to him. The Court describes this force as occurring through the agency of a third person, an outside force, or conditions constituting a zone of special danger. This element of causation was lacking in the applicant's case. The applicant was not in a zone of special danger, no person or thing struck him, and he did not slip or bump the picnic table as he rose to go back to work. The applicant did not experience any back pain prior to the moment he rose from the table, and he had worked for the respondent for a relatively short period of time, performing relatively light work. The only credible inference which could be drawn from these facts is that the applicant's back injury was idiopathic in nature, i.e., arising solely from the applicant.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are reversed. The application is hereby dismissed.

Dated and mailed May 6, 1988  
185 - CD7880  ND § 3.33   § 3.34 

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission has reversed the administrative law judge's Findings and Interlocutory Order as a matter of law. The Commission agreed with all the administrative law judge's actual findings of fact, but disagreed with his legal conclusion that these facts lead to compensability under the positional risk doctrine. The doctrine requires that there be credible evidence that the injury arose from a third person, outside force or zone of special danger, none of which was present in applicant's case. All the decisions cited by the administrative law judge in his decision make this requirement clear, except for Milwaukee Electric Railway & Light v. Industrial Comm., 212 Wis. 227 (1933). That case was decided before Wisconsin had the statutory requirement that the injury arise out of the employment, and was decided primarily on the basis that this statutory section did not exist as it then did in many other states.

cc: 
Raymond Borzick, Union Representative, Lodge No. 1259
John C. Possie, Attorney

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/05/28