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

AMY WEISBROT, Applicant

UNITED HEALTHCARE, Employer

FIDELITY & GUARANTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-020037

United Healthcare and Fidelity & Guaranty 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 7, 2004. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is whether on September 10, 2002, the applicant sustained an injury arising out of and in the course of her employment with United Healthcare.

The commission has carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's ultimate finding and his interlocutory order, but modifies his findings as follows:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 9, 2002, the applicant began her employment as a prenatal and post-partum case management nurse for the employer. On September 10, 2002, the employer sponsored a health fair for its employees that was held on the employer's premises. The applicant's supervisor encouraged all employees, including the applicant, to attend this health fair for their personal betterment. The applicant also believed that she would glean helpful information from the fair that she could pass on to her patients. However, attendance at the fair was voluntary. If the applicant had failed to attend, neither her job advancement nor her pay raises would have been affected.

The applicant attended the fair during regular working hours and received her regular salary for the period of her attendance. While at the fair she sustained a thoracic back injury resulting in one percent permanent partial disability to the body as a whole, as well as substantial medical expenses.

Wisconsin Stat. § 102.03(1)(c)3., provides in relevant part:

"An employee is not performing service growing out of and incidental to employment while engaging in a program designed to improve the physical well-being of the employee, whether or not the program is located on the employer's premises, if participation in the program is voluntary and the employee receives no compensation for participation."

Whether or not the applicant's attendance at the health fair was voluntary represents a close factual question, but the commission finds that in this case it was voluntary. Even though the applicant was clearly encouraged to attend the fair, the particular facts of the case do not demonstrate that she would have suffered any consequences for not attending, other than some minor degree of disappointment present in her supervisor's mind. The credible evidence does not demonstrate that such disappointment would have been translated into anything substantial enough to transform her attendance at the fair into a nonvoluntary requirement.

However, it is undisputed that the applicant was allowed to attend the fair during her regular working hours and that she received her regular salary for this period of attendance. Respondents argue that the applicant's salary was not specifically allocated to the fair attendance, and that the applicant received no additional salary or other payment for her attendance. The commission finds these arguments to border on the frivolous, as it is clear that the applicant was compensated with her regular salary for the period she attended the fair.

Accordingly, because the applicant was compensated for her attendance at the health fair, the exclusionary provision of Wis. Stat. § 102.03(1)(c)3., is inapplicable. The applicant was injured while performing services growing out of and in the course of her employment with the employer.

The applicant received chiropractic treatment from Dr. Ann Maedke, and was referred to a physician, Dr. Jeffrey Gorelick. On April 20, 2004, Dr. Gorelick credibly opined that the applicant had reached an end of healing for her chronic thoracic strain, with a permanent partial disability of one percent. He prescribed continued medication and home exercise, and indicated that the applicant should return for evaluation as needed. Dr. Gorelick's opinions are accepted as credible.

The applicant is therefore entitled to one percent permanent partial disability of the body as a whole, which translates to ten weeks of compensation at the applicable rate of $212 per week, for an accrued total of $2,120. A 20 percent attorney's fee is due against this award.

The following are reasonably required medical expenses: Maedke Chiropractic Center in the amount of $20; Dr. Jeffrey Gorelick in the amount of $1,126.14; Physical Therapy of Wauwatosa in the amount of $1,974; Lakeside Diagnostic Imaging in the amount of $1,672; and the applicant as reimbursement for medical expenses in the amount of $2,222.50.

Pursuant to Wis. Stat. § 102.30(7), respondents shall also reimburse the non-industrial carrier, Ingenix, in the amount of $461.86.

Because the applicant may require additional medical treatment and/or sustain additional disability jurisdiction will be reserved.

Now, therefore, this

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, respondents shall pay to the applicant as compensation for permanent partial disability the sum of One thousand six hundred ninety-six dollars ($1,696); to Attorney Steven Tilton fees in the amount of Four hundred twenty-four dollars ($424); to Maedke Chiropractic Center the sum of Twenty dollars ($20); to Dr. Jeffrey Gorelick the sum of One thousand one hundred twenty-six dollars and fourteen cents ($1,126.14); to Physical Therapy of Wauwatosa the sum of One thousand nine hundred seventy-four dollars ($1,974); to Lakeside Diagnostic Imaging the sum of One thousand six hundred seventy-two dollars ($1,672); to the applicant as reimbursement for medical expenses the sum of Two thousand two hundred twenty-two dollars and fifty cents ($2,222.50); and to Ingenix the sum of Four hundred sixty-one dollars and eighty-six cents ($461.86).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 8, 2005
weisbam . wrr : 185 : 4  ND § 3.30

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Steven F. Tilton
Attorney Jeffrey J. Strande

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