STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MICHAEL T COLLINS, Applicant

THERMO DYNAMICS INC, Employer

CITIZENS SECURITY MUTUAL INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 97009851


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: June 30, 1998
collimi.wsd : 175 : 8  ND 3.44

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant did not experience an accident or a disease causing injury arising out of his employment while working for the employer on October 26, 1995. The applicant contended that he suffered a work related ventral hernia as the result of a traumatic incident on October 26, 1995. The applicant contends that the administrative law judge ignored the uncontroverted evidence submitted at the hearing and other testimony. The applicant states that a number of the factual findings made by the administrative law judge are inconsistent with and not supported by the actual testimony or other evidence adduced at the hearing. The applicant testified at the hearing that he developed the hernia symptoms as he was pulling pipe off of a van between 8:30 and 9:00 a.m. on October 26, 1995, but he did not scream out in pain or fall to his knees, but it was a very sharp pain and he was able to continue working.

However, the applicant admitted that prior to his work for the employer he had two previous hernias and a gun shot wound to the abdomen. The applicant also admitted that he did not tell Dr. Sinnett when seen on October 26, 1995, that he was injured while pulling the pipes. It does not appear that when the applicant was treated on October 26, 1995, that he gave any history that he suffered a work injury while unloading pipes from a van on that date. Rather, the applicant gave a consistent history of the onset of pain and cramping following lunch between noon and 1:00 p.m. The applicant did not give a history of any lifting incident resulting in pain or bulge between 8:30 and 9 on October 26, 1995. The inconsistency in the applicant's testimony as compared to the medical records undercuts his credibility.

The employer presented testimony from Mr. Pulvermacher, who was working with the applicant on October 26, 1995. Mr. Pulvermacher testified that he was with the applicant all morning and that the applicant never complained about any type of injury and that right after lunch the applicant complained about gassing up and left work early. Mr. Peterson also testified on behalf of the employer that he was with the applicant on the morning of October 26, 1995 and the applicant did not mention any work injury but complained about gas pains after lunch, and he gave the applicant a ride to his truck and that the applicant never mentioned that he injured himself at work. Mr. Bauer, a mechanical contractor who manages for the employer testified that it was not until seven or eight weeks after the applicant's last day of work in December 1995, that he learned that the applicant was claiming a work injury.

The employer presented evidence from Richland Hospital admission sheet which indicated that the applicant felt fine in the morning and the severe pain in the abdomen came on after eating between noon and one o'clock. Dr. Reed, who performed an independent medical examination on behalf of the employer, indicated in his report dated July 17, 1997, that there was no clear cut activity while working for the employer which materially contributed to his incarcerated hernia. Rather, Dr. Reed found that the hernia resulted because of an almost complete small bowel obstruction which was causing obstruction of his abdomen and was never really resolved until he underwent a subsequent operation at the VA Hospital in November 1995. Dr. Reed diagnosed the applicant with an incarcerated ventral hernia complicating a persistent distal small bowel obstruction.

The commission credits Dr. Reeds opinion. The evidence in the record indicates that the applicant had to return to the hospital in November 1995, with a partial small bowel obstruction and he was again admitted to the hospital on November 27, 1995 complaining of an abdominal pain and he was admitted to general surgery for a partial small bowel obstruction and was subsequently discharged on December 5, 1995. Based on Dr. Reed's assessment that the applicant's ventral hernia was not work related and given the inconsistencies in the applicant's testimony of the nature and onset of his hernia symptoms on October 26, 1995, and given the evidence that the applicant suffered from a small bowel obstruction which required subsequent surgery in November of 1995, the evidence was sufficient to raise a legitimate doubt that the applicant suffered a work injury on October 26, 1995 resulting in a ventral hernia and need for surgery.

cc: ATTORNEY DANIEL J COLLINS
COLLINS LAW FIRM

ATTORNEY DONALD W BECKER
BECKER LAW OFFICE

GWENDOLYN F KAISER
LAWTON & CATES SC


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