DAVID ROBINSON, Applicant

STORA ENSO NORTH AMERICA CORP, Employer

STORA ENSO NORTH AMERICA CORP, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 18, 2005
robinda . wsd : 132 : 4   ND § 3.33  § 3.34

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The respondent has petitioned for review of the findings and order of the ALJ. The respondent argues that applicant's injury was idiopathic and therefore did not arise out of his employment. The ALJ found a pre-existing condition and that there was a "breakage" at work while applicant was engaged in usual or normal activity. The ALJ specifically found a relationship between the breakage and the effort exerted or motion involved. The ALJ based his decision on Lewellyn v. DILHR, category 1: breakage occurred while the employee was engaged in normal activity on the job and there was a relationship between the breakage and the motion involved.

The finding that there was a direct relationship between the breakage and the effort exerted is supported by the record. Dr. McDonough described the injury on the WKC-16-B as, "At work at Stora-Enso, going out the door of the back tenders shack. Went to turn left, left foot stayed planted as right leg turned & fell to the ground." In the evaluation of applicant's knee on April 17, 2003, Dr. McDonough set forth the history of applicant's injury:

WHEN/DURATION: 4/17/2003 10.40M

WHERE: AT WORK

HOW: GOING OUT THE DOOR OF THE BACK TENDERS SHACK, WHEN(sic) TO TURN LEFT, LEFT FOOT STAYED PLANTED AS RIGHT LEG TURNED AND HE FELL TO THE GROUND.

WHY: TWISTING

Exhibit A. The commission finds that the opinion of Dr. McDonoguh credible.

The respondents argue the injury was "idiopathic," that is, peculiar to the applicant, or unexplained. The respondents argue that the positional risk doctrine does not apply because the injury did not result from and was not contributed to by an outside force or person, or the conditions of the location. The respondents liken this case to one in which a worker sustained a back injury simply rising from a seated position at a picnic table. Witkowski v. ARPS Manufacturing, Inc. and Transportation Insurance Company, WC Claim No. 86-37831 (LIRC May 6, 1988). The commission finds the case more similar to one in which a worker sustained an injury swinging her leg out from between a picnic tabletop and the attached bench, while attempting to stand up from her seated position, a maneuver made necessary by the picnic table structure, which maneuver caused injury. Matts v. Dane County, WC Claim No. 2000-030212 (LIRC July 25, 2001).

The relationship between the work activity and the breakage distinguishes this case from Witkowski. The applicant's turn was made necessary by the layout of the employer's facility, which turn caused the injury. In Marshall v. Tackle Box Sports Shop, WC Claim Nos. 84-25047; 88-36778 (LIRC March 13, 1990), the commission rejected the contention that the applicant's injury was idiopathic. The commission reasoned:

However, the undisputed testimony was that the applicant's back injury occurred on March 23, 1987, when he reached across his desk from a seated position to grab some work papers. Unlike the applicant in the Commission decision cited by the employer/insurer, Witkowski v. ARPS Manufacturing, Inc., the applicant was clearly performing a duty of his employment when he sustained his back injury. His injury was a consequence of the stretching motion he made across his work desk in furtherance of his work duties, while the Commission was unconvinced that the back pain Mr. Witkowski experienced upon simply rising from a seated position was related to any cause other than his own back spontaneously giving out.

Applicant was performing a duty of his employment when walking to the control panel. The applicant's meniscus did not spontaneously tear.

For the above reasons the commission affirms the findings and order of the ALJ.

cc:
Attorney Israel Ramon
Attorney Philip Lehner

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