ROSEMARIE GIFFEY, Applicant
RANDSTAD, Employer
LEGION INSURANCE COMPANY, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 16, 2004. Randstad and Ward North America (Randstad's third-party administrator) submitted an answer to the petition and briefs were submitted by the parties. The Wisconsin Insurance Security Fund has been apprised of Attorney Paul R. Reigel's representation of Randstad throughout this proceeding, and has not objected to the proceeding going forward during the liquidation of Legion Insurance. An average weekly wage of $210.00 was conceded. At issue is whether the injuries the applicant sustained on June 7, 2001, arose out of and in the course of her employment with the employer.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
The applicant was employed by a temporary help agency, Randstad. She had performed services for one of Randstad's clients, Fleet Farm, since April of 1998. She was a cashier. Fleet Farm owns two parking lots located behind its store and across a public street, West Elberg Avenue. Elberg runs in an east/west direction behind the store. The parking lots are simply called the back lot and the front lot, and they are separated by a chain-link fence. Fleet Farm did not own the front lot until May of 2001, so prior to that time the applicant and her co-workers had parked in the back lot. After the purchase the employer informed them that they could park in the front lot.
West Elberg Avenue intersects North Bluemound Drive near the west rear corner of the Fleet Farm store. A cement walkway with prominent metal hand railings is set on the north side of Elberg, and the west railing of this walkway is approximately 40 feet east of the Elberg/Bluemound intersection. The walkway exits onto Elberg but there are no crosswalk markings on the street. Neither are there any crosswalk markings at the Elberg/Bluemound intersection. The walkway is necessary because a drainage ditch runs in an east/west direction down the north side of Elberg, and underneath the walkway is a culvert. There is a much shallower drainage area running east/west on the south side of Elberg. When crossing between Fleet Farm's employee entrance and the front parking lot, employees routinely walk straight across Elberg from the point where the walkway enters the street. However, some employees turn west on Elberg after exiting the walkway, and walk to the Bluemound intersection before crossing Elberg. This route is typically avoided, in part because the deep drainage ditch forces pedestrians to walk along the very edge of the road to reach the intersection.
On June 7, 2001, the applicant punched out of work to take a 15-minute break. She intended to take her break at her car parked in the front parking lot, because she wanted to smoke and smoking was not allowed on the store premises. She walked across the cement walkway onto Elberg, and as she reached the centerline of Elberg she was struck by a semi-tractor that was heading east. The accident report indicates that the semi driver mistakenly believed the applicant was going to stop to let him pass by her. The applicant indicated that she failed to take notice of the oncoming semi. She sustained serious injuries to her left foot and elbow.
The applicant was off the employer's premises when the accident occurred. However, she was going between the employer's premises and the employer's designated parking lot. The disputed issue is whether she was going to the parking lot on a direct route in the ordinary and usual way. (1)
Given the undisputed testimony, it is clear that when the applicant was injured she was taking a direct route to the parking lot, and that she and most of her co-workers ordinarily and usually took that route. The administrative law judge nevertheless dismissed the applicant's claim after concluding that the route taken was so dangerous that it could not be said to have been ordinary or usual. He determined that it would have been safer for the applicant to have walked to the Elberg/Bluemound intersection before crossing Elberg. He noted that it is normally safer to cross a street at an intersection, rather than at an unregulated section of the street. He analogized the applicant's case to Oscar Mayer Foods Corp. v. LIRC and Tonya Mahler, 145 Wis. 2d 864, 429 N.W.2d 89 (Ct. App. 1988). In that case, the court found no coverage for a short, overweight, 47-year-old woman who tripped and fell while trying to save time by stepping over cables strung from post to post in the employer's parking lot. The court held that under the particular circumstances of that case the commission could not find that the route the applicant chose was ordinary and usual. As with all such cases, Oscar Mayer was limited to its particular facts.
The facts and circumstances of the case at hand lead the commission to conclude that the applicant's street-crossing route was not so dangerous as to have taken it out of the ordinary and usual category. Vehicles heading south on Bluemound and intending to turn east (left) onto Elberg are not regulated by a stoplight or a stop sign. The rules of the road do require drivers to be especially alert for pedestrians and other traffic at intersections. However, the cement walkway entrance onto Elberg is only about 40 feet (37 feet 8 inches to be exact) from the Elberg/Bluemound intersection. The pictures in evidence show that drivers turning onto Elberg from Bluemound would see the cement walkway almost as readily as they would see the intersection itself. Given the hazard of the ditch running across Elberg between the walkway and the intersection, a reasonable pedestrian would cross Elberg at the walkway, and a reasonable driver would expect pedestrians to do so. The accident in question occurred because the applicant was not paying attention, and because the semi driver made an incorrect assumption about what the applicant was going to do. It could just as easily have occurred at the Elberg/Bluemound intersection.
The commission therefore finds that the applicant was injured while going between her employer's work premises and designated parking lot, while on a direct route and in the ordinary and usual way, within the meaning of Wis. Stat. § 102.03(1)(c)2.
The applicant claimed temporary total disability from June 7, 2001 to November 1, 2002. However, Dr. Livengood found an end of healing for the left elbow injury on November 5, 2001. He assessed 17 percent permanent partial disability at that elbow. Dr. Johnson last treated the applicant's left foot on February 28, 2002, and at that time released her to return on an "as needed" basis. She did not return to Dr. Johnson. Her attorney met with Dr. Johnson on May 16, 2002, to request information concerning the applicant's toe amputations and to obtain a referral to Dr. Capasso for disability evaluation. Dr. Capasso examined and evaluated the applicant on June 24, 2002, and assessed 20 percent permanent partial disability at the left foot. The applicant received additional treatment from Dr. Tougas in the fall of 2002. The sparse records submitted from that treatment indicate only that the applicant was "pain free" as of October 9, 2002, and that she had experienced right ankle pain. Dr. Tougas apparently misunderstood a written question from the applicant's attorney concerning the cause of the right ankle pain, and wrote that the applicant "had compensated causing left (sic) ankle pain." Dr. Tougas last saw the applicant on November 11, 2002, noting that she had been doing well with the orthotics she had been wearing.
Dr. Johnson completed treatment on February 28, 2002. Dr. Capasso saw the applicant for evaluation purposes. Dr. Tougas treated the applicant primarily for right ankle discomfort, although he prescribed bilateral orthotics. The records and opinions submitted from Dr. Tougas do not indicate that the applicant was temporary disabled during the time he treated her, and his treatment was over six months after Dr. Johnson's release. There is no credible evidence for temporary disability subsequent to Dr. Johnson's release on February 28, 2002. Dr. Aschlinan's opinion that the applicant had reached a healing plateau by October 5, 2001, is rejected based on the treatment records and opinions of Dr. Johnson.
The applicant is therefore entitled to temporary total disability for the period between June 7, 2001 and February 28, 2002, the period of exactly 38 weeks, at the applicable rate of $140.00 per week, for a total of $5,320.00. A 20 percent attorney's fee is due against this award.
Considering the seriousness of the applicant's injuries, Dr. Livengood's assessment of 17 percent permanent partial disability at the right elbow (equivalent to 76.5 weeks of compensation), and Dr. Capasso's assessment of 20 percent permanent partial disability at the left foot (equivalent to 50 weeks of compensation) are credible. Pursuant to the multiple injury provisions of Wis. Stat. § 102.53(4), the left foot disability is increased 20 percent to result in 60 weeks of compensation for that injury. The total award for permanent partial disability is 136.5 weeks at the applicable rate of $140.00 per week (based on the conceded wage of $210.00). This amounts to the sum of $19,110.00, all accrued. A 20 percent attorney's fee is also due against this award.
Reasonably required medical expenses are due as set forth below. The applicant may require additional medical treatment and/or sustain additional disability attributable to the work injuries, and therefore jurisdiction will be reserved.
Because Legion Insurance is in liquidation, the primary payor of the compensation ordered in this decision is the Wisconsin Insurance Security Fund. However, the Fund may not be ordered to pay the reimbursable medical expense due the nonindustrial insurance carrier, WEA Trust, in the amount of $72,275.05, because Wis. Stat. § 646.31(11) exempts the Fund from liability for reimbursement of subrogated insurance claims. It is the commission's position that pursuant to its liability for medical expenses under Wis. Stat. 102.42 (1), the employer is liable for immediate payment of such reimbursable medical expenses (in this case in the amount of $72,275.05), and that it is proper for the commission to order the employer to make such reimbursement pursuant to Wis. Stat. 102.30(7)(a). Of course, the employer has recourse for this reimbursement amount against the liquidator of Legion Insurance in the liquidation proceeding.
The commission is currently a defendant-respondent in a case before the court of appeals, in which the employer's liability to be the primary payor of reimbursable medical expenses in a circumstance such as this is disputed. See Wisconsin Insurance Security Fund and Eau Galle Cheese Factory v. LIRC and David Kallstrom, Ct. App. Dist. III, Case No. 04-2157. The case is currently in the briefing stage. The commission will therefore exercise its discretion to leave interlocutory the issue of Randstad's liability to reimburse WEA Trust, pending a decision by the court of appeals. For the purpose of Randstad securing a claim in the Legion Insurance liquidation proceeding, the commission hereby declares its intent to find Randstad liable to reimburse these medical expenses in the amount of $72,275.05, pending the decision of the court of appeals in the above-noted case.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are reversed. Randstad and Reliance Insurance Company are liable under Chapter 102 for all compensation awarded in this decision. However, because Reliance Insurance Company is in liquidation, the Wisconsin Insurance Security Fund assumes liability pursuant to Chapter 646. Within 30 days from this date, the Wisconsin Insurance Security Fund shall pay to the applicant for temporary disability and permanent partial disability the total amount of Nineteen thousand, five hundred forty-four dollars ($19,544.00); to applicant's attorney, Ann Reed, fees in the amount of Four thousand, eight hundred eighty-six dollars ($4,886.00); to Affinity Medical Group of Neenah the amount of Two thousand, two hundred forty-eight dollars and ninety-two cents ($2,248.92); and to the applicant, as reimbursement for medical expense that he personally paid, the amount of Three thousand, six hundred eighty-eight dollars and fifty-seven cents ($3,688.57).
Jurisdiction is reserved for such further findings and orders as may be warranted. This includes the issue of reimbursement of the $72,275.05 in medical expenses paid by WEA Trust, as noted in the above findings.
Dated and mailed November 29, 2004
giffero . wrr : 185 : 1 ND § 3.19 § 5.46
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Ann Reed
Attorney Paul R. Riegel
Appealed to Circuit Court.
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