Judith Herziger Applicant
Johnson School Bus Services, Inc. Employer
Integrity Mutual Insurance Co. Insurer
No. 2016-023438
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
December 14, 2018
Atty.
Michael Bertling
Atty.
James W. Goonan
WORKER’S COMPENSATION DECISION
1
Georgia E. Maxwell, Chairperson.
Order
The
commission reverses the decision of the
administrative law judge. Accordingly, the application for
benefits is dismissed.
By the
Commission:
Laurie
R. McCallum, Commissioner, David B. Falstad, Commissioner.
Procedural
Posture
In
April of 2017, the applicant filed a hearing application
seeking compensation for an injury occurring on September 28,
2016. An administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker’s Compensation Hearings, heard the matter on
September 13, 2017, and issued a decision on October 19,
2017, allowing benefits. The employer and its insurer
(collectively, the respondent) filed a timely petition for
review.
Prior
to the hearing, the respondent conceded jurisdictional facts
and an average weekly wage of $300. The respondent paid
temporary disability from September 28, 2016, through
November 20, 2016. At issue is whether the applicant
sustained a work-related injury, and if so, the nature and
extent of that injury.
The
commission has considered the petition and the positions of
the parties and has independently reviewed the evidence.
Based on its review, the commission reverses the decision of
the administrative law judge and makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, who was born in 1947, works as a school bus driver
for the respondent.2 She drives a small school bus for
students with special needs.3 At the time of her
alleged injury, she drove two routes in the morning and two
routes in the afternoon.4
2. On
Wednesday, September 28, 2016, the students had an early
release day.5 The applicant returned from her
afternoon route about 15 or 20 minutes early because one
student was not on the bus and she did not have to take that
student home.6 She parked her bus at 2:57
p.m.,7 and went into the bus station and
dropped off her keys.8
3. The
applicant claims that she realized that she had parked her
car on the south side of the building, so she exited the
building through the door on the south side; she claims she
had never used this exit before, but she used it on this day
because it was closer to where she had parked her
car.9
4. The
applicant claims that she injured her left hand and broke her
right wrist when she fell on a step outside the south door
and used her hands to break the fall.10 She claims that
she fell at approximately 3:20 p.m.11; that she yelled
or assistance, but no one responded12; and that after
about 15 minutes she went to her car and drove home using her
let hand.13 The applicant did not report any
injury to the respondent at the time that she allegedly
fell.14
5. From
3:20 p.m. until 3:29 p.m. on September 28, 2016, six other
buses arrived and parked at the bus terminal.[15]
6. The
applicant had a cell phone in her purse at the time she
allegedly fell but did not use it to call anyone for
assistance or for an appointment at an urgent care
clinic.16
7. The
applicant contended at the hearing that the step on which she
allegedly fell was a lot deeper than a normal step and that
it was a very large step17; that her right foot was half on
concrete and half of her shoe was on broken and crumbling
blacktop or cement18; that she did not think she had a
serious injury to her right wrist and thought it was a
sprain19; and that she thought she would go
to Walgreens and get a wrist brace for the
injury.20 The claimant did not go to a
Walgreens; she asserted that she drove home and realized that
wrist brace would not work so she drove herself to the urgent
care clinic.21
8. On
September 28, 2016, at 4:15 p.m., the applicant presented for
medical treatment at Aurora Advanced Menomonee Falls Urgent
Care.22 She informed Dr. Michael Hafran that
she injured her wrist at home when she was walking in her
garage with a box in her left hand and was trying to get into
her car and she fell: "Patient reports she was walking
in her garage w/box in L hand trying to get into her car and
she fell."23 An x-ray revealed that the applicant
had fractured her right wrist, and Dr. Hafran provided a
temporary cast and a referral to an orthopedic
surgeon.24 The applicant drove herself
home.25
9. On
the evening of the injury, the applicant's brother
notified the employer that the applicant had had an accident
and that she would not be into work the next day; he did not
inform the vice president of the bus company that the
applicant injured her wrist at work.26 The applicant
never filled out an incident report with the
employer.27
...