Volume XI
June 2014
Changing Times. Unchanging Values. 40 Years Strong.
Wisconsin Worker’s Compensation Update
In This Issue
Decisions of the Wisconsin Court of
Appeals........................................................1
Decisions of the Wisconsin Labor and
Industry Review Commission................ 3
Wisconsin Worker’s Compensation
Practice Group
----Susan E. Larson, Shareholder
Charles B. Harris, Sr. Attorney
Molly N. Tyroler, Associate
Krista L. Carpenter, Paralegal
Angel M. Severson, Paralegal

Pass It On 
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Case Law Update
Decisions of the Wisconsin
Court of A ppeals
Arising Out Of
Westerhof v. State of Wisconsin Labor and Industry Review
Commission, No. 2012AP 2332 (Wis. Ct. App. May 22, 2014)
(unpublished). The applicant was an attorney and shareholder
in a law firm. He testified his compensation was based on actual
work performed and clients brought into the firm regardless of
who performed the legal work. He testified that he joined a poker
group compromised of small business owners, in an effort to
market himself. The group at times referred clients to each other.
The applicant did not record his time playing poker as marketing
time for compensation purposes. He was reimbursed for snacks or
drinks he brought to the poker events and for expenses related to
trips he took with the poker group members. The applicant asked
one of the poker group members if the applicant could join the
continued on next page . . .
Susan E. Larson
SELarson@ArthurChapman.com
Molly N. Tyroler
MNTyroler@ArthurChapman.com
Charles B. Harris
CBHarris@ArthurChapman.com
About Our Attorneys
Our group of worker’s compensation law attorneys has extensive experience representing employers, insurers, third-party
administrators, and self-insured employers in all phases of worker’s compensation litigation. Contact us today to discuss your
worker’s compensation needs.
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Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
Worker’s Compensation Update
2

member and the member’s wife at a
Harley-Davidson rally they planned
to attend. The applicant had no part
in planning the trip. During one
leg of the trip, he was driving the
poker group member’s motorcycle,
lost control of the motorcycle
and sustained injuries that led
to him being a quadriplegic. The
applicant testified he considered
the excursion to be a business
trip. He alleged he was rainmaking
or networking on behalf of the
firm when the injury occurred.
Administrative Law Judge Ezalarab
denied the applicant’s claim.
The Labor and Industry Review
Commission
(“Commission”)
affirmed, as did the circuit court
and the Court of Appeals. The
motorcycle trip was not incidental
to any asserted business purpose.
Unlike recreational trips in
Continental Casualty v. Industrial
Commission and Beechen v.
American Guaranty & Liability
Insurance Company (wherein
the court awarded benefits for
injuries sustained during hunting
trips), the applicant here did not
initiate the event to entertain a
client. Instead, the applicant was
a guest on a personal trip initiated
and planned by his poker group
member. The business generated
by the applicant from the weekly
poker games was minimal, and
even so, not every trip or activity
the applicant undertook with a
member of the poker group was
client entertainment or business
related networking. Instead, this
was a social outing among friends
who occasionally did business
together.
Exclusive Remedy
Taylor v. Cedar Falls Bldg. Systems,
Inc., et al., 844 N.W.2d 666 (Wis.
Ct. App. 2014)(unpublished).
Cedar Falls Building Systems,
Inc. subcontracted with Lewis
Construction to build cement
foundation walls on a construction
project.
One of these walls
collapsed, seriously injuring and/
or killing the applicants, who were
employees of Lewis Construction
[cases from three plaintiffs/
co-workers were consolidated
into this action]. The applicants
recovered worker’s compensation
benefits from Lewis Construction.
Subsequently the applicants
initiated the instant lawsuit
against Cedar Falls Building
Systems, Inc., alleging liability on
two theories. First, the applicants
alleged that the contract between
Cedar Falls Building Systems, Inc.
and Lewis Construction granted
Cedar Falls Building Systems, Inc.
the right to maintain control and
supervision of the premises. The
applicants alleged Cedar Falls
Building Systems, Inc. had a nondelegable duty under the Safe Place
statute to control the premises
and to maintain them safely. In
addition, the applicants alleged
that, as the general contractor,
Cedar Falls Building Systems, Inc.
breached its common law duty to
maintain the premises in a nonnegligent fashion. The Court of
Appeals held there was no duty
of Cedar Falls Building Systems,
Inc. under the Safe Place statute.
Generally a general contractor has
no duty to supervise the activities
of its subcontractor’s employees.
A general contractor’s duty under
the Safe Place statute arises
essentially only if the general
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
contractor stands in the shoes
of the subcontractor in regards
to maintaining control of the
premises. Here, the contractual
language reserving the right
to control was very limited.
Other language in the contract
specifically stated that Cedar Falls
Building Systems, Inc.’s right to
inspection and supervision did
not relieve Lewis Construction
of its obligations to meet safety
statutes. Therefore, there was
no breach of the Safe Place
statute. In order for a general
contractor to be found liable
under common law for a condition
of the premises that had been
surrendered to a subcontractor,
there needs to be a showing of
an affirmative act by the general
contractor,
which
amounts
to negligence. In the instant
case, there was no affirmative
act by the general contractor.
Therefore, the applicant’s sole
remedy was against his direct
employer, the subcontractor,
Lewis Construction. 
2014 Workers
Compensation
Seminar
Thursday, June 19, 2014
Crowne Plaza, Wauwatosa,
Wisconsin
Contact Marie Kopetzki at
612 225-6768 or
mkkopetzki@arthurchapman.com
for more details or to register.
June 2014, Volume XI
Worker’s Compensation Update
3

Decisions of the Wisconsin
Labor and Industry Review Commission
Arising Out Of
Paul v. Baxter International, Claim
No. 2013-001969 (LIRC March 6,
2014). The applicant squatted down
to hang a plasma bag on a blood
collection machine. He started to
stand, turned his torso to the left,
and planted his left foot firmly on
the floor. The sole of his clog stuck
to the floor surface while he was
in the process of walking to the
left. He heard an audible “pop”
and had severe pain. The applicant
performed this every day maneuver
as part of his normal work duties.
The twisting motion made by the
applicant stressed his left knee and
caused a tear. A witness (co-worker)
testified she was approximately
five feet behind the applicant,
heard a “pop” like noise, heard a
blood donor immediately ask if
the applicant was okay, and heard
the applicant respond, “I went to
turn and the top half of my body
turned but the bottom half did not.”
Administrative Law Judge Roberta
Arnold held the injury arose out of
and in the course of employment
and awarded benefits. The Labor
and Industry Review Commission
affirmed. There need not have
been any substance on the floor, or
defect, in order for the applicant’s
foot to have been securely planted.
The claim is not unexplained.
The credible evidence, as well as
ordinary experience, demonstrates
the applicant’s maneuver would
have resulted in significant
pressure being applied to the left
knee as he attempted to turn to the
left.
Bernal v. Alpha Homes of Wis.,
Claim No. 2012-002146 (LIRC
March 27, 2014). The applicant
worked as a counselor at a group
home. During a snowstorm, she
went out into the driveway to drive
her car into the garage. While
walking to her car, she slipped
and fell. The employer and insurer
argued that one of the reasons the
applicant was seeking to put her
car in the garage was so that she
would not have to scrape off the
windows when leaving work later
that evening. The employer and
insurer argued that the applicant
had deviated from the course of
her employment. The applicant
testified she went to put her car
in the garage so the snow removal
crew (contracted by the employer)
would be able to fully clean the
driveway. The employer alleged the
deviation also occurred because the
applicant left the residents alone
without supervision, contrary to
the employer’s written policies.
Administrative Law Judge Leonard
Martin held the applicant was in
the course of her employment.
The Commission affirmed. Even
assuming the applicant had both
motives in mind when she decided
to move her car, because one of
those motives was in furtherance
of the employer’s interests, that
required a finding that she had not
deviated from her employment.
Further, the testimony supports
the applicant would regularly
unload groceries from her vehicle
without the residents constantly
being in her line of site. She would
enter and exit the building where
the residents remained, for this
purpose. Therefore, the applicant
leaving the building to move her
car was not a deviation on that
basis.
Simonz v. Wal-Mart Associates,
Inc., Claim No. 2012-010488 (LIRC
March 27, 2014). The applicant was
walking with his supervisor and
a co-worker. He testified that he
slipped and fell on the floor. The
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
supervisor testified the floor
was not slick. She testified the
applicant was mimicking the
walking pattern of a co-worker,
while attempting to step on the
back of the co-worker’s shoes.
The supervisor testified that she
told the applicant to stop and
he did so. At the same time, the
applicant’s feet went into the
air and he fell to the floor. The
applicant underwent surgery and
sought a period of temporary total
disability benefits, permanency
benefits and medical expenses.
Administrative Law Judge Cathy
Lake held the injury arose out of
and in the course of employment.
The Labor and Industry Review
Commission reversed.
An
idiopathic fall is one that is due
to a personal condition that is
not caused or aggravated by
employment. A truly unexplained
fall is one attributable to
neither an idiopathic (personal)
cause nor a cause related to
employment. Idiopathic injuries
and unexplained injuries are
not compensable. In the instant
case, the injury was explained.
He was injured because he was
engaging in horseplay while
trying to step on the back of his
co-workers shoes. An employee
participating in horseplay may
still be compensated for his
injuries depending on (1) the
extent and seriousness of the
deviation; (2) the completeness
of the deviation; (3) the extent to
which the practice of horseplay
had become an accepted part of
employment; (4) the extent to
which the nature of employment
may be expected to include
some horseplay. In this case,
the Applicant’s deviation was
significant and serious. The
applicant was mimicking a
June 2014, Volume XI
Worker’s Compensation Update
4

coworker and attempted to step on
the back of his shoe with the goal
of having his co-worker’s shoe
come off. This was a significant
deviation and dangerous for both
the applicant and his co-worker.
The co-worker could have tripped
and injured himself. The Employer
did not tolerate horseplay. The
applicant had been warned about
horseplay and his supervisor told
him not to step on the back of his
co-worker’s shoe.
Fletcher v. Specialty Automotive,
Inc., Claim No. 2009-001519 (LIRC
April 28, 2014). The applicant
owned a business. He sold the
business to another company.
Certain items of personal
property were exempted from
the sale, including a bulldozer.
The applicant and owner of the
purchasing company entered
into an agreement wherein the
applicant agreed to help smooth
the transition in ownership
for a period of three weeks. He
helped the new owner and its
employees become familiar with
regular customers, vendors,
the computer system and yard
procedures.
He
inventoried
incoming automobiles in the
yard. The applicant testified he
was told to keep track of his time
and that he would be taken care
of at the end of the three weeks.
The applicant performed work on
the date of injury in the nature
of inventorying cars. The normal
business hours were 8:00 a.m.
to 5:00 p.m. Around 5:00 p.m.,
the applicant began working on
his bulldozer, changing the oil
and antifreeze, and fixing the
“stack,” in order to try and get
it running. The applicant then
decided to level some piles of
dirt. The applicant testified the
purpose of leveling the dirt was
to make additional parking. The
employer testified he did not
request the additional parking,
and that additional parking
was not needed. The applicant
testified he did not intend to record
the time moving the dirt on his
time card. These activities were
clearly outside his normal duties.
He sustained a crush injury while
using the bulldozer to move the
dirt. The employer testified that
he had three to five acres, of the
fifteen acres he had purchased, that
were not in use. He testified that,
at the time of the hearing, he had
three acres that remained unused.
The employer had more space
than needed to store automobiles.
The employer testified he never
asked the applicant to perform
the activity and was not aware the
applicant would do this activity.
The employer testified that activity
was not reasonably necessary
for its interests. Administrative
Law Judge Janine Smiley held the
applicant’s injury did not arise
out of and in the course of his
employment. The Commission
affirmed. The inference of the
facts is that the applicant did
not consider his activities with
the bulldozer to be an activity
arising out of his employment. The
activities of flattening piles of dirt
was a personal deviation that did
not arise from his employment. He
was there to help with the transition
in ownership. The applicant’s
activities were not work in the
advancement of the employer’s
interests that were reasonably
necessary at that time and place.
Moen v. County of Douglas, Claim
No. 2013-002797 (LIRC April
28, 2014). The applicant worked
as a child support enforcement
investigator. She began treating
for carpal tunnel symptoms in
November 2005. The applicant
reported she had the symptoms
for two to three months. She
reported using her computer
daily, for five hours at a time. The
applicant reported experiencing
the symptoms while driving and
talking on a telephone. She reported
increased symptoms while working
on a remodeling project at home that
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
included sanding painting and
installing tile. Her project ended
at home, she took more breaks
at work and her workstation was
modified after an ergonomic
evaluation.
She reported no
significant flare ups at work after
approximately one month. The
applicant reported no additional
symptoms until May 2012. She
reported bilateral hand numbness
for a few days. She reported she
had been shoveling dirt and rock
at home, and that she performed
keyboarding work most of the
day. The applicant’s supervisor
testified the applicant’s keying
activities were intermittent, did
not exceed four hours per day
and were broken up with varied
work activities. Administrative
Law Judge Janine Smiley held the
applicant did not sustain a workrelated occupational injury and
denied her claim. The Commission
affirmed. The treating physician,
Dr. Davis, attached limited records
to his WKC-16b. Dr. Davis opined
the carpal tunnel syndrome was
secondary to the diagnosis of
flexor tenosynovitis. The records
are not clear regarding whether
Dr. Davis fully understood the
applicant’s
work
activities.
The
independent
medical
examination, Dr. Foster, reviewed
the applicant’s job description
in addition to medical records.
Dr. Foster opined the symptom
increase coincided with home
remodeling activities and that her
keyboarding activities were not
sufficiently forceful to be a cause
of carpal tunnel syndrome.
Bad Faith
White v. Madison Metropolitan
School District, Claim No. 2012011468 (LIRC April 28, 2014). The
applicant alleged she sustained a
work-related injury to her left knee
as a result of her job duties for the
employer. Dr. O’Brien performed
an
independent
medical
examination. He diagnosed the
June 2014, Volume XI
Worker’s Compensation Update
5

applicant with nonwork-related
severe osteoarthritis of her left
knee. He opined her symptoms
were secondary to progressive
degenerative condition that began
when she sustained a severe
trauma to her left knee at age 13.
Dr. O’Brien opined her progressive
symptoms were the known natural
history of her condition. He noted
that she was morbidly obese. Dr.
O’Brien opined that this, coupled
with severe traumatic injury to
her knee and the natural aging
progress, was the cause of her
symptoms and osteoarthritis. At
an initial Hearing on this case,
the Administrative Law Judge held
the applicant did sustain a workrelated injury. The applicant then
brought a bad faith penalty claim.
She acknowledged the initial denial
of the claim was not in bad faith.
However, she alleged that, after
obtaining Dr. O’Brien’s report, the
claim should have been conceded
and paid. She alleges that, because
Dr. O’Brien opined obesity was a
causal factor contributing to the
left knee condition, the employer
and insurer was in bad faith for
not paying the claim under Van
Laanen v. Agrilink Foods (a Labor
and Industry Commission decision
from June 2006). [The Van Laanen
case addressed physicians that
applied to an overweight worker
required to walk as part of his or
her job duties. The defense expert
opined the employee’s obesity
contributed to the progression
of her knee condition but only
on a nonindustrial basis. The
Commission held the applicant
walked as part of her job duties
and this caused the weight to hurt
her knees. The defense expert
was not credible because it did
not reconcile how an employee’s
nonindustrial ambulation and
injury were causative but her
industrial ambulation and injury
was not causative.] Administrative
Law Judge Nia Enemuoh-Trammell
held that there was no bad faith.
The
Commission
affirmed.
Whether the independent medical
examiner’s opinion is credible
should be left to the trier of fact.
The employer and insurer are
entitled to rely upon the opinion of
its medical expert and should not
be held to a standard where it must
judge the credibility of the opinion
offered by its expert. The question
of whether the applicant’s work
was a material contributory
causative factor in the onset or
progression of her occupational
disease involves a legal conclusion.
This must be based upon specific
medical and factual evidence
within the record. The adjuster
credibly testified that each case
is evaluated on its own merits.
The adjuster replied upon Dr.
O’Brien’s opinions that her work
duties played no causal role in the
progression of her condition. The
adjuster was under no obligation
to analyze and second guess Dr.
O’Brien’s medical reasoning. Dr.
O’Brien did not concede a work
injury. The adjuster testified that
she recognized some similarities
between the Van Laanen case
and this case, but she believed
each case was different. She also
testified that she believed if there
was further dispute, that the facts
would be represented to the judge
who would review the record
and determine which medical
See past
newsletters online at:
www.ArthurChapman.com
click on the Resources
section of the Worker’s
Compensation Practice
Area.
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
opinion was more credible. The
employer and insurer acted in
a reasonable manner by letting
Administrative Law Judge Sass
review the evidence and make
a
determination
regarding
whether the applicant sustained
an injury arising out of and in
the course of her employment.
Judge Sass determined the
treating physician was more
credible than the independent
medical examiner. He did not
hold he was compelled to find
for the applicant because of the
Commission’s decision in Van
Laanen.
Compromise Agreement
Piparo v. Piparo Amusement,
Inc., Claim Nos. 2013-025421,
2013-008408 (LIRC March 27,
2014). The parties had reached
a settlement, and submitted
a Compromise Agreement to
the Department for approval.
Administrative
Law
Judge
Mitchell issued an Order
approving the Compromise. In
the Order, Administrative Law
Judge Mitchell stated “except for
the second injury claims pursuant
to §102.59, Wis. Stat. However,
any language in the terms and
limitations contained in the
Agreement of the parties which
attempts to limit the statutory
and administrative authority of
this Division, or confer privileges
and rights not regularly provided
to all participants subject to such
authority, is void. The remaining
terms and limitations, if any,
contained in the Agreement are
incorporated…” The employer
wrote to the Administrative Law
Judge to request an amendment to
the Order, deleting the language
quoted above. The Department
treated this correspondence
as a Petition for Review. The
Commission set aside the
Order. The case was remanded
for reconsideration of the
Compromise. An Administrative
June 2014, Volume XI
Worker’s Compensation Update
6

His
Law Judge cannot modify or add exposure to loud noise.
terms to a Compromise Agreement. exposure was reduced in 2004 or
2005 when the employer instituted
a mandatory hearing protection
Employment Relationship
policy. The applicant was still
Justice v. Wilcox Construction, regularly required to remove his
Claim No. 2011-015600 (LIRC foam ear protectors to listen for
March 6, 2014). The applicant and respond to radio calls, in
moved from Georgia to Madison, addition to other reasons. Dr.
Wisconsin to seek employment. He Horwitz performed only a record
had contacted the alleged employer review prior to issuing his first
about opportunities to work for report. He reviewed one audiogram
the company doing roofing and and a summary of the applicant’s
siding repairs. On at least three or work related noise exposure
four separate days, the applicant prepared by his attorney’s
went to three or four different office. A more complete report
jobsites for the alleged employer. was prepared approximately six
The applicant testified he was months later. Dr. Horwitz is retired
paid in cash for the services he from a 40 year active practice. He
performed on these job sites. The performs some volunteer work at a
employer representative testified community clinic and is otherwise
that, when the applicant contacted available for paid medical record
Administrative Law
the company about employment, reviews.
the applicant was informed Judge Smiley awarded benefits.
that he would need to perform The Labor and Industry Review
The
a period of unpaid trial work to Commission affirmed.
see if he was qualified to perform imposition of a hearing protection
the job duties. The employer policy indicates there were high
representative
testified
the levels of noise in the facility. The
company never paid the applicant, applicant is not required to submit
and that, therefore, the applicant evidence identifying the precise
was not an “employee” at the time decibel level of exposure to which
the applicant fell off a roof at the he was regularly exposed because
employer’s job site. Administrative of the nature of the production
Law Judge Minix held the facility and the applicant’s
applicant was an “employee” at the unrebutted testimony regarding
time of the work related incident. the noise level. The fact that Dr.
The Commission affirmed. The Horwitz is paid for his medical
applicant’s testimony on the review work is a baseless reason to
issue of pay was credible. An argue against the credibility of his
employment relationship can medical opinion. The independent
exist absent actual compensation medical examination was certainly
as long as wages are “either paid paid for his medical report.
or expected.” In addition, there is
a presumption that a person, while Job Offer
in the services of another, is an
Olejniczak v. Sendiks Food Market,
employee of that person.
Claim No. 2011-032025 (LIRC
March 31, 2014). The applicant
Evidence
alleged she sustained a shoulder
Valentine v. Pure Power Navistar, injury. Light-duty restrictions were
Claim No. 2012-018041 (LIRC imposed. The employer informed
March 18, 2014). The applicant the applicant to report to work at
testified that, on every workday 9:00 a.m. The applicant testified
during his approximately 14 years that he did not accept the job offer
of employment, he had substantial because his shift previously had
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
started at 6:00 a.m. He testified
that his parents were able to take
him to work for a 6:00 a.m. shift.
The applicant testified he could
not get a ride to work for a 9:00
a.m. shift conveniently enough.
Administrative Law Judge Leonard
Martin awarded a length period of
claimed temporary total disability
benefits. The Commission affirmed
in part. The applicant’s basis for
not accepting the job offer was not
a valid excuse for not accepting the
position. See Permanent Partial
Disability category for additional
facts and issues.
Loss of Earning Capacity
Zaldivar v. Hallmark Drywall,
Inc., Claim No. 2010-010154 (LIRC
March 6, 2014). The applicant
came to the United States in 1998.
He used a “made up” social security
number to obtain employment with
the employer. He had a separate
ITIN that he used to file his
income tax returns. He sustained
a conceded lumbar injury and was
paid temporary disability, physical
permanent partial disability and
medical expenses. The applicant
sought 65% loss of earning capacity
based upon the opinions of the
applicant’s vocational expert, who,
in part, based his opinions on the
applicant’s earnings of a drywall,
the completion of the equivalency
of high school in Mexico, strong
basic mathematical skills, limited
fluency in English, unskilled or
semi-skilled work history and
a likelihood that he would have
to accept entry-level work. The
applicant’s vocational expert
did not provide a loss of earning
capacity assessment based upon
employment in Mexico.
The
vocational expert for the employer
and insurer argued a Mexican
employment model should be used,
and that only his loss of earning
capacity based upon employment
in Mexico should be used because
he cannot obtain employment
in the United States legally. The
June 2014, Volume XI
Worker’s Compensation Update
7

applicant testified that he had
begun the residency application
process.
He had obtained
assistance of an immigration
attorney. Administrative Law
Judge Roberta Arnold awarded
the 65% loss of earning capacity
benefits sought by the applicant.
The Labor and Industry Review
Commission
affirmed
with
modification of the award to 20%.
Federal law does not preempt the
Commissions assessment of the
loss of earning capacity. The award
takes into account the applicant’s
undocumented worker status.
The applicant has begun the
application status for residency.
There is no way of knowing what
the applicant’s long term residency
and employment status will be.
He has been in the country for 16
years and is not under current
threat of deportation. Residency
and employment status is one
relevant factor to be considered in
assessing loss of earning capacity
for an undocumented worker,
and it is a factor the Commission
will weigh in accordance with the
facts and circumstances. Here, the
factor deserves substantial weight
because he has not demonstrated
he will be able to obtain legal
residency status anytime soon.
His loss of earning capacity
assessment must therefore be
substantially reduced because
of his inability to legally obtain
employment in the United States.
The Order will be left interlocutory
to address the contingency that
in the future the applicant may
secure the right to legally obtain
employment. His loss of earning
capacity claim can be re-assessed
if the applicant obtains legal
status.
Meitzen v. McLane Foodservice,
Inc., Claim No. 2012-024273 (LIRC
March 31, 2014). The applicant was
a high school graduate who had
attended some technical college.
He had worked for a number
of years for the employer. The
employer’s business was a food
distributorship. The applicant
did some repetitive and physically
demanding work. Administrative
Law Judge Schneiders held the
applicant sustained a workrelated injury to his cervical
spine, thoracic spine and lumbar
spine. She awarded 5% permanent
partial disability to the cervical
spine, 5% permanently partial
disability to the thoracic spine and
5% permanent partial disability to
the lumbar spine. Administrative
Law Judge Schneider held that a
20 pound lifting limitation was
appropriate. She awarded 45% loss
of earning capacity benefits. The
Commission reversed the award of
loss of earning capacity benefits.
The Supreme Court has held that
the Commission is warranted in
postponing the determination
of permanent disability for a
reasonable period of time until the
applicant completes a reasonable
course of physical therapy or
vocational rehabilitation. Here,
the applicant had testified he
was not interested in undergoing
vocational
rehabilitation.
A
number of cases have recently
held that an administrative law
judge may consider whether or
not an applicant is interested
in
undergoing
vocational
rehabilitation in determining
whether to award loss of earning
capacity benefits. A large number
of employees have no interest
in
undergoing
vocational
rehabilitation. However, here, the
applicant was only 41 years old,
had relatively strong grades in
high school, and was successful
in completing some vocational
training. Therefore, the applicant
was awarded only physical
permanent partial disability. The
applicant was instructed to seek
services from the Division of
Vocational Rehabilitation in good
faith before an award for loss of
earning capacity could be made.
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
Mental Injury
Jost v. Lakeshore Cap, Inc. of
Wisconsin, Claim No. 2012-016251
(LIRC April 28, 2014). The applicant
began to work for the employer in
October 2006. She worked on a
variety of projects. The applicant
was responsible for supervising
three individuals. She performed
direct
case
management,
budgeting, scheduling and other
administrative duties. In early
2009, the economic downturn
resulted in an increase of her
overall duties. Her assistant took
a medical leave for three months
during the summer of 2009. The
applicant asked her supervisor for
help with her increased workload.
She did not receive assistance until
two individuals were transferred
to her department. The applicant
had to train those individuals. The
applicant’s relationship with her
supervisor worsened after spring
2009. The applicant alleged her
supervisor was demeaning toward
her, picked on her and humiliated
her in front of other workers.
The applicant provided details
of only two incidents. There was
testimony that the supervisor
yelled at the applicant, as well as
at other personnel, when he was
upset. Witnesses testified that
the applicant was not singled
out for this treatment, and that
the supervisor was an equal
opportunity jerk. The applicant
resigned her employment right
after a promotion because she
believed it would lead to too much
stress. The applicant had been
diagnosed with depression and
anxiety type conditions since
early 1990’s. The applicant was
diagnosed with PTSD, major
depression and organic mood
disorder. Her treating physician
assigned permanent restrictions
in the nature of not returning
to work for the same supervisor
and not being exposed to work
in any type of stressful work
environment.
Dr. Langmade
June 2014, Volume XI
Worker’s Compensation Update
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performed an independent medical
examination. He diagnosed the
applicant with somatization
disorder, and an adjustment
disorder with mixed anxiety and
depressed mood. He opined her
symptoms were manifestation of
her pre-existing mental conditions.
Dr. Langemade did not believe her
work events, as described above,
were extraordinary or unusual.
Administrative Law Judge Thomas
Landowski held the applicant
sustained a compensable nontraumatic mental injury under the
School District No. 1 extraordinary
stress test.
The Commission
reversed. The applicant’s job duties
were stressful to the applicant,
and she had some unexpected
challenges. Temporarily elevated
workload and accompanying stress
are common in the workplace.
Government benefit programs
(with which the applicant worked)
involve frustrating rule changes
and administrative uncertainties,
especially when first enacted. The
stresses increased in spring 2009
and decreased in fall 2009. Those
stresses were temporary in nature.
Her supervisor’s management
style was abrasive and he yelled
at the applicant on two occasions.
Polite treatment cannot always
be expected in the workplace.
Being yelled at by a supervisor
on isolated occasions does not
constitute extra-ordinary stress.
Occupational/Repetitive
Injury
Hajducki Sr. v. P&H Mining
Equipment, Inc., Claim Nos. 1990040903,
2007-005461,
2011007011 (LIRC March 18, 2014). The
applicant worked as a welder for
the employer and its predecessor
for a total of 34 years. The applicant
sustained a nonwork-related injury
in 1978. He sustained several knee
injuries in the 1990’s. In 2006,
the applicant sustained a specific
injury when he fell and struck his
knee. The applicant underwent
surgery and then continued to
work through September 2009.
The insurer on the risk in 2006 was
different than the insurer on the
risk in 2009. Dr. Langenkamp, at
the request of the 2006 employer/
insurer, opined that, by 2006, the
cat was out of the bag regarding
the need for a knee replacement.
He opined the applicant’s history
of doing manual heavy work as a
welder was a material contributory
causative factor in the progression
of the osteoarthritis of the left
knee. The employer and insurer
for the 2009 injury argued that Dr.
Langenkamp did not specifically
opine job duties between 2007
and 2009 were causative of the
applicant’s knee condition, and
that the treating physician’s
opinion supported the insurer for
the 2006 injury being on the risk
for the totality of the condition.
Administrative Law Judge William
Phillips, Jr. held benefits to the
applicant should be paid by the
employer and insurer for the 2006
injury. The Labor and Industry
Commission affirmed. The treating
physician’s opinions attributed
the knee problems to the specific
2006 injury. Dr. Karr examined
the applicant on behalf of the
2009 injury employer and insurer,
and opined the knee condition
was related to the 2006 traumatic
injury. Dr. Langenkamp’s opinion
was that the applicant sustained
an occupational knee injury.
The Administrative Law Judge’s
decision found the applicant
sustained an occupational injury,
culminating on the same date of
the specific injury in 2006. The
evidence supports the injury
sustained was occupational in
nature. Typically the employer
and insurer on the risk at the end
of the period of exposure is liable
for the entire amount of benefits.
However, there must be some work
exposure during the period of
coverage that is attributable to the
condition. The evidence reflects the
work exposure during the period of
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
coverage for the 2009 date of injury
is not causative of the applicant’s
knee condition. Dr. Langenkamp’s
opinion did not specifically state
the period of work between 2007
and 2009 contributed to the need
for a knee exposure. One could
speculate that, if asked, he would
have agreed the period of work
during that time was contributory.
However, he was not asked and
there is no such opinion to that
regard. Therefore, the employer
and insurer on risk at the time the
occupational injury culminated in
2006 is liable for the entire period
of benefits awarded
Permanent Partial Disability
Olejniczak v. Sendiks Food Market,
Claim No. 2011-032025 (LIRC March
31, 2014). The applicant alleged she
sustained a shoulder injury. She
had near full range of motion. She
was not assigned any permanent
restrictions. See Job Offer Category
for additional facts and analysis.
Administrative Law Judge Leonard
Martin awarded the applicant
5% permanent partial disability
to the shoulder, based upon the
treating physician’s opinions. The
Commission reversed. The applicant
is not entitled to permanent partial
disability for the shoulder. With
near full range of motion and no
permanent restrictions, there was
no support for a 5% permanent
partial disability rating.
Permanent Total Disability
Martin v. St. Josephs Community
Hospital, Claim No. 2011-026339
(LIRC March 27, 2014).
The
applicant worked as an emergency
room nurse. He was assaulted by a
patient. He alleged mental injuries
as a result of the assault. Dr.
Langmade evaluated the applicant
at the request of the employer and
insurer. Dr. Langmade held the
applicant sustained aggravation
of underlying post-traumatic
stress disorder. Dr. Langmade
June 2014, Volume XI
Worker’s Compensation Update
9
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opined the applicant sustained
1% permanent partial disability
if the applicant continued to work
as an emergency room nurse. Dr.
Langmade opined there would be
no permanent partial disability
if the applicant worked in other
nursing areas of the hospital. He
opined the applicant should not
work as an emergency room nurse.
A treating psychologist opined
the applicant was not able to have
patient contact while working
as a nurse, could only work up to
four hours per day, three days per
week, and could only work on the
day shift (among other similar
restrictions). The applicant had
put his house up for sale prior to
the work-related injury, intending
to return to live in California.
The applicant testified he took
care of the ranch he and his wife
had bought in California. He had
not applied for social security
benefits. He testified that he
was not seeking employment at
a hospital or clinic because it
would involve patient care. He
testified he was occupied with his
ranch. The employer had offered
the applicant a nursing position
in the radiology department, first
shift. The applicant did not accept
the position. Administrative
Law Judge Martin held the
evidence was not sufficient to
address whether the applicant
was vocationally permanent and
totally disabled or had sustained
loss of earning capacity benefits.
The Commission affirmed in
part and reversed in part. The
applicant sustained 5% loss of
earning capacity benefits because
of his limitation on working in an
emergency room department. The
treating physician restrictions
regarding employment were not
credible. The applicant could
function in public without
any difficulty, which is similar
to working in normal patient
care situations apart from an
emergency department.
Love-Mueller v. Target Corp., Claim
No. 2006-010802 (LIRC April 28,
2014). The applicant underwent
three low back surgeries,
including two fusion procedures,
as a result of a conceded workrelated injury. The applicant
had poor results from each
procedure. A morphine pump was
implanted subsequent to the third
surgery. Dr. Cederberg performed
an
independent
medical
examination. He opined the
applicant could permanently work
as an administrative professional,
and could perform an office type
job up to eight hours per day. Dr.
Karr performed an examination
of the applicant at the request
of her attorney. He assigned
physical restrictions of up to 20
pounds lifting, repetitive lifting
and carrying up to ten pounds,
and some positional restrictions.
Dr. Karr opined the applicant
could work full time within
these restrictions. The applicant
testified she did not believe that
she could physically tolerate a full
time job or full time workdays.
The applicant was receiving
social security disability benefits.
Administrative Law Judge Nia
Enemuoh-Trammell held the
applicant was permanently and
totally disabled. The Commission
reversed on this issue. The
applicant did not submit a prima
facie case for permanent total
disability.
Both physicians
opined the applicant could work
full time. Her physical capacity to
work is a medical questions and
her personal decision that she
could not work eight hours per day
is not sufficient. The applicant
is an intelligent individual with
marketable skills for sedentary
office work. Her self-directed
job search is questionable. Her
vocational expert’s opinion that
she was permanently and totally
disabled relies in part upon her
statements regarding her own
view of her physical capacity for
work. Her vocational expert’s
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
statements are contrary to credible
medical evidence that the applicant
can complete in the workplace by
the virtue of working full time.
Because the applicant’s vocational
expert’s opinion lack credibility
and because the applicant has not
been medical restricted from full
time work, there is no prima facie
case for permanent total disability.
Refusal to Rehire
Budde v. Blain Supply, Inc., Claim
No. 2013-003317 (LIRC March 18,
2014). The applicant worked for
the employer for nearly 10 years.
He sustained a foot injury a few
minutes before the end of his shift,
which was 7:00 a.m. on Friday
morning. The applicant went home
and his wife gave him a Tylenol
3 that she had been prescribed.
He then went to urgent care. The
applicant was given restrictions.
He brought those restrictions to the
employer that same morning. He
was next scheduled to work Sunday
night. When the applicant arrived
at work with his restrictions, he was
advised to punch in and was taken
to the hospital for drug and alcohol
testing. The applicant returned to
work Sunday night and continued
to work for one week. He was then
released without restrictions. Ten
days after the work-related injury
was sustained, he was suspended
from work for violation of the
drug policy. Two days later, he was
terminated. The drug policy was
available for employees through
the company’s computer system but
was not provided to an employee as
part of a handbook. The employer’s
witness testified the actual practice
of the company was to provide
drug and alcohol testing for any
employee involved in a work injury
that required medical treatment.
She testified the policy stated
discipline for violation was up to
and including termination. The
witness further testified that her
experience was each employee who
failed the drug test was terminated.
June 2014, Volume XI
Worker’s Compensation Update
10
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Administrative Law Judge Ryan
O’Connor awarded the to-date loss
of wages. [The Hearing was held
before one year post termination
had passed.]
The Commission
affirmed. The employer did not
follow its written policy for drug
testing post injury. There was no
evidence that there was any drug in
the applicant’s system when he was
injured. There was no evidence the
Tylenol 3 affected his performance
when he returned to work on Sunday
night. There was no investigation
regarding the positive test or its
medical significance. The applicant
provided the employer with his work
restrictions as soon as possible,
on his own time, in order to allow
the employer the best opportunity
to accommodate those. The
application of the employer’s drug
testing policy may result in unjust
and unreasonable consequences.
An employer must demonstrate
that the discharge was done with
reasonable cause. This burden
cannot be met without investigation
and consideration of the factual
circumstances surrounding the
discharge. The employer did not
consider the reason the applicant’s
test came back positive or whether
the drug was in the applicant’s
system during work hours. The
award is left interlocutory because
the to-date loss of wages is less than
the maximum of one year worth of
wages.
Stahl v. Light Haus of Madison,
Claim Nos. 2012-015008, 2013006748 (LIRC March 27, 2014).
The applicant worked as a glazier
for 18 years. He was hired by the
employer as a lead glazier in 2001.
He performed residential and
commercial glazing duties with an
emphasis on high end residential
homes. The applicant was laid off for
short periods of time when work was
slow. He collected unemployment
benefits during these periods of
time. The applicant sustained a
right knee injury. He underwent
surgery several months later. He
was released without restrictions
five months post injury. The
applicant advised the employer of
his release without restrictions. He
was told that he would be placed on
unemployment for one week while
the employer figured out what to
do with the applicant. One week
later, the applicant was contacted
and advised to report to work. He
did so and was informed he was
being terminated. He was asked
to sign a severance agreement
and release of claims, but refused
to do so. The applicant’s former
co-worker continued to work for
the employer. The employer was
significantly affected by economic
downturn. There was a lot less work
available, particularly with respect
to the higher end jobs. One year
after his discharge, the employer
offered to rehire the applicant at
a wage of approximately 70% of
his date of injury hourly rate. The
applicant refused. He was working
at a lower paying job at the time
of that job offer. Administrative
Law Judge Joseph Schaeve awarded
the applicant the equivalent of
one year lost wages, minus the
actual wages he earned during that
period of time. The Commission
affirmed. The employer did not
have reasonable cause to discharge
the applicant when he attempted to
return to work. The employer could
have just laid off the applicant,
rather than discharging him.
Previously when there were slow
times, the applicant was laid off.
The employer failed to provide
any explanation for the basis for
termination on this occasion.
Further, there was no reasonable
explanation provided for asking
the applicant to sign a severance
agreement. There is no evidence
supporting an inference that the
employer believed the applicant’s
co-worker could handle all future
glazing projects. Economic reasons
can be a basis for a reasonable
cause for discharge. The offer of
employment one year after the
discharge does not change the
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
outcome in this case. Discharged
employees are not normally
required to accept subsequent
offers of employment from the
employer, particularly after the
applicant has filed a claim for,
basically, wrongful termination
under Wis. Stat. 102.35(3).
Swenson v. Al’s Apples, Inc., Claim
No. 2011-024358 (LIRC April 28,
2014). The applicant worked as
a laborer in an apple orchard
for several years. The applicant
was directed by an immediate
supervisor to help move a load of
wood. The applicant refused. He
alleged the wood was too heavy
and he would not do it without
more help. The supervisor had
loaded the wood by himself. The
applicant was directed to the
owner’s office. The applicant was
advised he was expected to obey
his supervisor. Two hearings were
held on the applicant’s alleged
refusal to rehire claim. At the first
hearing, the applicant testified
that, after he refused to follow his
supervisor’s order to help unload
wood, the owner told him “to get
the hell off the property and not
to come back.” At the second
hearing, the applicant testified
that the supervisor said “well,
then, you’re fired,” and that he
then left. The owner testified the
applicant told him to get someone
else to do the job and that he had
been thinking of quitting soon
anyway. The owner said that, since
he was quitting, he should punch
out and leave immediately. The
applicant offered to work two more
weeks and the owner declined the
offer. Administrative Law Judge
Janine Smiley held the applicant
voluntarily
terminated
his
employment and that the employer
therefore did not violate Wis.
Stat. §102.35(3). The Commission
affirmed. In order to demonstrate
a violation of Wis. Stat. §102.35(3),
and applicant must submit credible
evidence showing that, after
sustaining a work-related injury,
June 2014, Volume XI
Worker’s Compensation Update
11

he or she was refused rehire or discharged without reasonable cause. The applicant conceded he refused
a supervisor’s reasonable work order and that he maintained the refusal when confronted by the owner.
The owner’s detailed testimony was more credible, and demonstrates the applicant voluntarily terminated
his employment with the employer. The owner accelerated the voluntary termination by two weeks. This
acceleration was reasonable because the applicant was refusing a direct work order without good cause to
do so. Further, there was no indication the employer even knew the employee was going to allege a work
injury at the time of the firing. 
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Disclaimer
This publication is intended as a report of legal developments in the worker’s compensation area. It is not intended as legal
advice. Readers of this publication are encouraged to contact Arthur, Chapman, Kettering, Smetak & Pikala, P.A. with any
questions or comments.
Arthur, Chapman, Kettering, Smetak & Pikala, P.A. ©2014
June 2014, Volume XI