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February 2018 Worker’s Compensation Case Law Update

By Atty. Reid H. Rayome

Several Wisconsin court and administrative decisions were issued in worker’s compensation cases between January 31, 2018, and February 28, 2018. Our firm is happy to provide this summary of a few of the most interesting of those recent decisions to highlight trends in the law and important issues worth considering.

Please note that each case is unique, and that these updates may not apply to a claim that you are handling. If you have questions about a specific claim, or if you want legal advice, please contact our firm or consult with your attorney.

Wisconsin Court of Appeals

Matthew O’Brien v. Labor and Industry Review Commission, Department of Corrections and Department of Administration

2018 WL 784776 (Wis. Ct. App. Feb. 7, 2018)

The applicant began working as a correctional officer in 2004. In 2007, while he was off work on military duty, he injured his neck in a training exercise. In May of 2013, he underwent a two-level cervical fusion surgery. Then in September of 2013, the applicant reported that he had injured his neck again, this time while working at his job as a correctional officer, when the back of a chair in which he was seated “snapped off,” causing him to begin falling backwards. The applicant claimed that, in order to keep himself from hitting his head on the wall behind him, he put his “head at a downward angle” and experienced a “sudden jerking motion.” In 2014, the applicant underwent a surgical revision of the prior cervical fusion.

Dr. Tibor Boco opined for the respondents that the applicant’s continued smoking caused the failure of the original fusion surgery. At hearing, the administrative law judge found in favor of the applicant. The Labor and Industry Review Commission reversed the decision of the administrative law judge, finding in favor of the respondents. The Commission recognized that the claim boiled down to a “conflict between medical experts,” and the Commission did not find the applicant’s physician credible, largely because his causation opinion was conclusory. The Racine County Circuit Court reversed the decision of the Commission.

On appeal, the Wisconsin Court of Appeals, reviewing the decision of the Commission and not that of the circuit court, found that there was sufficient credible evidence supporting the Commission’s decision that it had legitimate doubt as to whether the work incident caused the pseudoarthrosis that necessitated the revision surgery. As such, the Court of Appeals reversed the decision of the circuit court.

Labor and Industry Review Commission

Beverly Mayer v. Marshfield Clinic and Sentry Insurance A Mutual Company

2014-027809, 2018 WL 731875 (Wis. Lab. Ind. Rev. Com. Jan. 31, 2018)

The applicant filed a Hearing Application alleging that occupational exposure from her employment as a phlebotomist caused or contributed to her hand and wrist conditions, including carpal tunnel syndrome. The only WKC-16-B form filed by the applicant in advance of the filing deadline that included a causation opinion favorable to the applicant’s claim was not signed by any physician or medical professional. There was, in fact, no signature on the WKC-16-B form that the applicant filed in advance of the hearing.

At hearing, however, the applicant produced a copy of the same WKC-16-B form, but with one noticeable difference. The copy provided at the hearing room was signed by a physician and dated prior to the filing deadline.

The administrative law judge sustained the objection to the signed WKC-16-B form that was raised by our firm in defense of the respondents. Thus, with the signed WKC-16-B form excluded from evidence, the administrative law judge concluded that the applicant had failed to prove that her conditions were causally related to her employment, going so far as to find that her “claim is barred alone on the insufficiency of the expert medical reports admitted into evidence.”

The applicant appealed to the Labor and Industry Review Commission. The Commission affirmed the decision of the administrative law judge, noting that the administrative law judge’s exercise of discretion in excluding the signed WKC-16-B form produced for the first time at the hearing room was reasonable.

John Bergson v. Aurora Health Care of Southern Lakes and Sentry Casualty Company

2016-027590, 2018 WL 1045079 (Wis. Lab. Ind. Rev. Com. Feb. 20, 2018)

On the date of injury, the applicant was working alone at the front desk of the emergency department. A man brought his wife to the emergency department for treatment, because she was suffering from a severe migraine headache. The applicant checked the patient in and recorded her insurance information from her insurance card. As the patient and her husband were exiting the building following treatment, the applicant realized that he still had the patient’s insurance card. In an apparent effort to reach the patient and her husband, and return the insurance card before they drove away, the applicant jumped or climbed over the desk, and fell onto the floor, suffering an injury to his right ankle.

The respondents argued that the applicant deviated from his employment when he crossed the desk to attempt to return the insurance card. Instead, the administrative law judge found that the applicant was going over the desk to carry out his responsibilities to the patient to ensure that she had her insurance card before she drove away, and that the applicant was still in the course of his employment in so doing. That said, the administrative law judge found that the permanent partial disability rating assigned by the treating physician was “unusually high without appropriate support,” instead finding the opinion of Dr. Bruce Summerville on behalf of the respondents to be more reasonable with respect to permanent partial disability.

The respondents appealed to the Labor and Industry Review Commission, which affirmed the decision of the administrative law judge, finding that the applicant had not deviated from his employment, but that he had performed his employment duty, albeit in an unwise manner.