Wayne Cromheecke, Applicant
Menard, Inc., Employer
XL Ins. America, Inc. Insurer
No. 2018-023473
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
August 17, 2020
Atty. Kristin S. Bruess
WORKER’S
COMPENSATION DECISION 1
Michael H. Gillick, Chairperson.
Order
The
commission affirms the decision of the administrative law
judge. Accordingly, the application for benefits is
dismissed.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
The
applicant filed a hearing application in December of 2018
claiming a right knee injury due to many trips up and down a
ladder to put stock on a shelf and pulling a pallet of
antifreeze 50 feet, with a date of injury of October 18,
2018. An administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker’s Compensation Hearings (Division), heard the
matter on January 29, 2020, and issued a decision dated
February 12, 2020, dismissing the application for benefits.
The applicant filed a timely petition for review.
Prior
to the hearing, the parties conceded jurisdictional facts and
an average weekly wage of $190.58. The issues are whether the
applicant sustained a compensable knee injury on October 18,
2018, and if so, the nature and extent of the
applicant’s disability and the respondent’s
liability for medical expenses. The commission has considered
the petition and the positions of the parties, and has
independently reviewed the evidence. Based on its de
novo review, the commission affirms the decision of the
administrative law judge and makes the following:
Findings
of Fact and Conclusions of Law
As
supplemented by the commission’s memorandum
opinion,2 the commission makes the same findings of
fact and conclusions of law as stated in the administrative
law judge’s decision and incorporates them by reference
into the commission’s decision.
Memorandum
Opinion
The
applicant, who was born in 1952, worked for the employer
part-time as a stocker for about 10 years. He alleges that he
injured his right knee while working on a shift when he was
climbing a ladder several times to stock heavy items and then
pulled a pallet jack with heavy product on it for about 50
feet. The applicant did not feel any pain in his right knee
while working, but several hours later he gradually developed
knee pain which he attributes to this work. The respondent
denies a work injury.
The
Applicant’s Alleged Injury and Medical
Treatment
The
applicant began working for the employer in 2008 as a
part-time morning stocker.3 His shift was from 5:00 a.m. to 9:00
a.m.4
In his statement to the claims adjuster, the applicant
indicated that he had had no prior knee
problems.5
On
Thursday, October 18, 2018, the employer had a large amount
of stock to put out to get ready for Black Friday sales. The
applicant indicated that he had to go up and down a ladder to
stock items at least 20 to 23 times. The items he stocked
weighed about 20 pounds and he took them up two at a time. It
would take him 15 to 20 seconds to go up the eight steps of
the ladder, and then he would come down. While he was doing
this, he did not feel anything happen to his
knee.6 The applicant estimated that he did this
work at around 6:00 to 6:30 a.m.7 The applicant also went up
and down a ladder about additional 12 times with smaller
objects weighing 3 to 4 pounds. The applicant also pulled a
pallet jack with windshield washer antifreeze about 50 feet.
The pallet jack was 4 x 4 feet stacked 7 feet tall with 6
gallons of the antifreeze. The applicant indicated that this
was done after he had been climbing the ladder.[8] While he was
pulling the pallet jack, the applicant did not feel anything
in either of his knees.9 The applicant worked his full shift,
and at no time during his 4-hour shift did the applicant
remember his knee giving him any trouble at
all.10 The applicant’s testimony
regarding the work incident was consistent with the statement
he gave to the claims adjuster in a recorded
statement.11
The
applicant had knee pain that came on gradually 3 to 4 hours
after his shift had ended. The applicant went home after work
and then to his aunt’s funeral. He was sitting down at
the funeral and that is when his knee started hurting. He
estimated that this was around 11:00 a.m.[12] He indicated
that it felt like a fire or that the knee was
sleeping.13 The applicant was not scheduled to work
on Friday, and after the funeral, he went up north to his...
