Herziger, 121418 WIWC, 2016-023438

Case DateDecember 14, 2018
CourtWisconsin
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 ...

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