CANDICE BENTLEY Applicant
MERIDIAN INDUSTRIES INC Employer
SENTRY CASUALTY CO Insurer
No. 2017-016945
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
November 30, 2020
Attorney Daniel L. Zitzer
Attorney Jason R. Oldenburg
Attorney James T. Barrett
WORKER'S
COMPENSATION DECISION1
Michael H. Gillick, Chairperson
Order
The
commission affirms in part and reverses in part the decision
of the administrative law judge (ALJ) issued in this matter
on April 23, 2020.
Accordingly,
within 30 days from this date, Meridian Industries, Inc. and
Sentry Casualty Company (respondents) shall pay to the
applicant as compensation for temporary total and permanent
partial disability the total amount of Ten Thousand Five
Hundred Fifty dollars and Twenty-Four cents ($ 10,550.24); to
applicant's attorney, Jason R. Oldenburg, fees in the
amount of Two Thousand Six Hundred Thirty-Seven dollars and
Fifty-Six cents ($2,637.56), and costs in the amount of Two
Hundred Twenty-Five dollars ($225.58); to the applicant as
reimbursement for out-of-pocket medical expense the sum of
Three Hundred Fifty dollars ($350.00); to the applicant as
reimbursement for medical mileage expense the sum of Three
Hundred Thirty-Eight dollars and Thirty-Eight cents
($338.38); to Anthem Insurance reimbursement in the amount of
Twenty-Seven Thousand Two Hundred Five dollars and
Forty-Seven cents ($27,205.47); to Aurora Health Center
Grafton the sum of Two Hundred Thirteen dollars and
Eighty-One cents ($213.81); to Dr. Greg P. Watchmaker the sum
of One Thousand Four dollars and Twenty-Three cents
($1,004.23); to Orthopedic Hospital of Wisconsin the sum of
Nine Hundred Sixty-Three dollars and Twenty cents ($963.20);
and to Medical College of Wisconsin the sum of Seventy-One
dollars and Fifty-Five cents ($71.55).
This is
a final order.
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
On July
17, 2018, the applicant filed a hearing application alleging
that she sustained compensable injuries to her left knee and
right thumb when she fell on the employer's property on
July 6, 2017. Respondents disputed her claim and on November
6, 2019, an ALJ of the Department of Administration, Division
of Hearings and Appeals, Office of Worker's Compensation
Hearings held a hearing in the matter. On April 23, 2020, the
ALJ issued a decision awarding compensation in an
Interlocutory Order. Respondents timely filed a petition for
commission review alleging error in the ALJ's decision.
The
commission has reviewed the evidence submitted at the
hearing. It has also considered the arguments presented in
the petition and in the briefs submitted by the parties.
Based on its review and analysis, the commission has affirmed
in part and reversed in part the ALJ's decision. The
commission substitutes the following Findings for those made
by the ALJ-
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is March __. 1978, worked in the
employer's office as a buyer. She purchased raw materials
and expedited their delivery to meet the employer's
needs. She began this employment in June of 2016.
2. On
July 6, 2017, the applicant parked her car in an employee
parking lot on the employer's property, and she was
walking to an entrance door when she fell and injured her
right thumb and left knee.
3. The
first page of Appl. Ex. H provides an aerial photo of the
area in question. The applicant parked her car near the
middle of the employee parking lot, which is the lot that
juts out on an angle from the bottom center of the photo. The
word "Google" is printed in white in that lot.
There are two buildings pictured in the photo. The smaller
building located in the top center of the photo will be
referred to herein as Building A. After parking her car, the
applicant was headed for an entrance door in Building A. She
began by taking a designated walkway that leads from the
employee parking lot across a street, and then continues
toward Building A. This walkway, which is on the
employer's property, is marked with diagonal lines in the
aerial photo. Ground level photos show that the borders of
the walkway and its diagonals are painted yellow. The walkway
leads directly to an entry door in Building A that is
primarily used by production employees.2 The door assigned
for office employees, such as the applicant, is located a
good deal further to the right (east) side of Building A. It
will be referred to herein as the east entry door. Two
different views of the east entry door are pictured at Appl.
Ex. H, pages 6 and 10.
4. The
applicant could have continued walking straight ahead on the
walkway, ultimately turning right onto a short concrete
pathway that would have taken her through the middle of the
visitor's parking lot, and eventually to the east entry
door.3 However, as may be appreciated by
viewing Appl. Ex. H, page 5, the applicant chose at one point
to leave the walkway and step over a curb onto a grassy area
that provided a more direct route to the east entry door.
While she was walking across this grassy area her shoe caught
on a root from the tree pictured on Ex. H, page 6, and she
fell to the ground about two or three feet from that tree.
5. The
applicant frequently took this shortcut route across the
grassy area in order get to the east entry door. Nobody from
the employer had told her not to take that specific route,
and she saw other employees take the same route
daily.4 There were no warning signs in or near
that area telling people to stay off the grass.
6. The
applicant, a salaried employee who was not required to punch
in, nevertheless was scheduled to start work at 8 a.m. The
surveillance photos taken at Resp. Ex. 3 capture the
applicant crossing the grass, and ultimately lying on the
ground after she fell. The time stamps on these photos show
that she fell approximately 45-48 seconds after 8:00 a.m.,
which would have been approximately 9-12 seconds...
