JESSE W MOSCA, Applicant

BROOKFIELD MOTOR CARE CO/INTERNATIONAL AUTOS, Employer

ACUITY INSURANCE CO, 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 makes the following:

The applicant's date of birth is October 21, 1974. He began his employment at the respondent, an automobile dealership in February 2001. At all times relevant to this proceeding, the applicant's job title was parts professional. His regular work hours were from 8:00 a.m. to 5:30 p.m.

The respondent's parts department had two counters--the tech counter and the retail parts counter. The applicant worked at the tech counter which was located about 50 feet away from the retail parts counter. Tech and retail parts personnel shared a common cash register counter.

It is undisputed that the applicant sustained a traumatic left eye injury on October 8, 2003, as a result of an altercation with Eugene Monzingo, a co-employee from the respondent's retail parts area. At issue is whether the applicant's injury arose out of his employment while he was performing services growing out of an incidental to that employment, thus making it compensable under the Worker's Compensation Act. The applicant argues his left eye injury is compensable because he was the non-aggressor victim of an assault that was not purely personal. The respondent contends the applicant's injury is not compensable because it resulted from a fight in the workplace that was unrelated to any work related stress/strain.

On the morning of October 8, 2003, an outside vendor provided doughnuts for the employees in the respondent's parts department. The doughnuts were placed on the counter in the common area near the cash register. Monzingo was working close to the spot where the doughnuts were placed.

At approximately 8:30 a.m., the applicant walked by the box of doughnuts and picked one up. After determining the doughnut was jelly filled, which he did not want, he put the doughnut back in the box and chose another one. Monzingo observed the applicant touching more than one doughnut and disapproved of that behavior because of sanitary concerns. Monzingo expressed his disapproval to the applicant by stating in a normal tone of voice that the applicant should not touch all the doughnuts, but rather should just grab one. The applicant responded to Monzingo by saying, "fuck you." Monzingo, using one arm, pushed the applicant against the counter to get him away from the doughnut box. The applicant responded by saying, "here's your fucking doughnut" and then threw the doughnut at Monzingo, hitting him. Monzingo threw a doughnut back at the applicant. Then, the applicant and Monzingo walked towards each other. Applicant had his hands up in a defense manner to keep Monzingo away. As the applicant's hands touched Monzingo's shirt, Monzingo punched the applicant once with his closed right fist--hitting him in the left temple area near his eye which ultimately caused severe damage to the left eye. At that point, Matte, a co-worker, stepped between the applicant and Monzingo and ended the altercation.

The applicant was in the course of employment when injured by the intentional conduct of a co-worker. The applicant did not initiate physical contact but reacted to that initiated by Monzingo. The evidence established that coarse language was used at the workplace and that Monzingo had uttered "fuck you" in the past while at work. Given such background the applicant did not utter "fighting words" which he could have reasonably anticipated would provoke an assault. The applicant by his actions did not step out of the course of employment. The dispute did not originate outside the workplace. The dispute arose at the workplace and involved disagreement over standards of etiquette and sanitation in the workplace.

The commission finds that the applicant sustained an accidental left eye injury arising out of his employment while performing services growing out of and incidental to that employment on October 8, 2003. Applicant submitted the opinion of Dr. Reeser that applicant is legally blind in his left eye. Dr. Reeser indicated that applicant's vision was 6 feet/200, with loss of depth perception, distortion and dark vision. The respondents have not presented a contrary medical opinion. The commission finds based on Dr. Reeser's opinion that applicant has sustained a total impairment of his left eye for industrial use.

The applicant is entitled to temporary total disability for the inclusive period of November 28, 2003 to January 2, 2004, a period of five weeks and 1 day at the rate of $448.72 per week, for a total of $2,318.39. The applicant is entitled to 250 weeks of permanent partial disability at the rate of $222.00 per week, for a total of $55,500.00. The accrued temporary total disability and permanent partial disability totals $24,222.39.

The applicant approved an attorney fee set under Wis. Stat. § 102.26, at twenty percent. The fee is subject to an interest credit of $643.89 to reflect the advance payment of fee attributed to unaccrued permanent disability. The present value fee due the applicant's attorney is $10,919.78.

The employer and insurer shall pay the following medical treatment expenses: to applicant for out-of-pocket expenses the sum of $447.03; to Dr. Carlino the sum of $20.00; to Retina & Vitreous Consultants of WI, Ltd. the sum of $501.00; to St. Joseph's Hospital the sum of $550.00; to Mequon Chiropractic (Dr. Strande) the sum of $291.92; and to Terry Burko the sum of $165.00. The employer and insurer shall reimburse the nonindustrial insurer, Wausau Benefits, the sum of $21,524.09.

Dr. Reeser indicated that future treatment would probably not be necessary. This order will be made final.

The findings and order of the administrative law judge are reversed. Within 30 days of the date of this order the employer and insurer shall pay to the applicant the sum of nineteen thousand three hundred seventy-seven dollars and ninety-one cents ($19,377.91) as compensation and four hundred forty seven dollars and three cents ($447.03) for out-of-pocket expenses; to applicant's attorney the sum of ten thousand nine hundred nineteen dollars and seventy-eight cents ($10,919.78) in fees. Beginning November 3, 2005, the respondents shall pay the applicant each month the sum of nine hundred sixty-two dollars ($962.00), until the additional amount of twenty six thousand eight hundred seventy-six dollars and eighty cents ($26,876.80) has been paid. The respondents shall pay the following medical expenses: to Dr. Carlino the sum of twenty dollars ($20.00); to Retina & Vitreous Consultants of WI, Ltd. the sum of five hundred one dollars ($501.00); to St. Joseph's Hospital the sum of five hundred fifty dollars ($550.00); to Mequon Chiropractic (Dr. Strande) the sum of two hundred ninety one dollars and ninety-two cents ($291.92); and to Terry Burko the sum of one hundred sixty-five dollars ($165.00). The respondents shall reimburse the nonindustrial insurer, Wausau Benefits, the sum of twenty-one thousand five hundred twenty-four dollars and nine cents ($21,524.09).

Dated and mailed September 27, 2005
moscaje . wrr : 132 : 1 : ND § 3.14  § 3.31

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated consistent with her decision different aspects of the testimony that she credited. The ALJ did not convey any specific demeanor impressions that she had of the witnesses. The ALJ did indicate that she found Mr. Matte a credible witness without allegiance to either the applicant or Mr. Monzingo. The commission likewise finds Mr. Matte credible particularly that the applicant raised his hands in a defensive manner to keep Mr. Monzingo away from him.

cc:
Attorney Andrew Morgan
Attorney Kurt R. Anderson

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