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


ANN R HERNANDEZ, Applicant

WALGREENS, Employer

AMERICAN MANU MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999059223


The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on April 17, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. A compensable work injury was conceded as having occurred on November 14, 1997. At issue is whether the applicant's injury sustained on July 14, 1998, arose out of and in the course of her employment with the employer, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and substitutes therefor the findings set forth below. However, the administrative law judge's ultimate determination regarding compensability is affirmed. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained a conceded work injury to her right thumb when a door closed on it on November 14, 1997. She treated with Dr. Andreas Doermann through February 9, 1998, when Dr. Doermann indicated that healing was going well. The applicant did not believe she needed to see Dr. Doermann again, but in April or May of 1998, someone from his office telephoned her and indicated that the worker's compensation insurer wanted a final evaluation from him. The first available appointment date was the afternoon on July 14, 1998. The applicant worked the morning of July 14, 1998, and then went home to change clothes before going to the doctor. On her way to the doctor's office she was involved in an automobile accident and sustained serious injuries.

To be a compensable injury under Chapter 102 of the Statutes, the employe must have been performing service growing out of and incidental to her employment when the injury occurred (Wis. Stat. 102.03(1)(c)); and the accident causing the injury must have arisen out of the employe's employment (Wis. Stat. 102.03(1)(e)). Both these conditions were satisfied in the applicant's case.

It was an obligation of the applicant's employment, as well as the circumstances of that employment which caused the applicant to be in her car and on her way to see Dr. Doermann when she was injured by an outside force on July 14, 1998. The applicant had no intention of returning to Dr. Doermann for additional treatment or evaluation relative to her work injury of November 14, 1997. However, the employer's worker's compensation insurer requested a medical evaluation from Dr. Doermann, which was the reason for the applicant's trip to his office on July 14, 1998. It is a reasonable inference from these facts that the applicant was obligated to return to Dr. Doermann as a duty incidental to her employment. She was aware of the insurance relationship between the employer and its worker's compensation insurer, and of the fact that the requested evaluation was needed to satisfy the employer's insurer. It was clearly the circumstance of the November 1997 work injury which led to the appointment with Dr. Doermann. Thus, the July 1998 injury arose out of the applicant's employment with the employer.

For primarily the same reasons, it must be found that the applicant was performing a service growing out of and incidental to her employment when she was injured on July 14, 1998. The service performed was to respond to the employer's insurer's request for a medical evaluation. Had the applicant failed to respond to this request the reasonable inference is that the insurer would have contacted the employer and requested its assistance in getting the applicant to see Dr. Doermann. The applicant's accession to the insurer's request thus benefited the employer.

Under the facts and circumstances of this case, the commission finds that the injury the applicant sustained on July 14, 1998, arose out of and in the course of her employment with the employer.

For purposes of jurisdiction, the insurer stipulated to one day of temporary total disability if liability were found. As a result of the compensable injury of July 14, 1998, the applicant was temporarily totally disabled for one day entitling her to $43.33.

Jurisdiction will be reserved with respect to the applicant's claim for additional medical treatment and disability.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings of the administrative law judge are set aside and the commission's Findings substituted therefor. Within 30 days from this date, Walgreens and American Manufacturers Mutual Insurance Company shall pay to the applicant the sum of Forty-three dollars and thirty-three cents ($43.33).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed August 25, 2000
hernand.wsd : 185 : 5   ND 3.22  3.23  3.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


cc: ATTORNEY KELIN R OLSON SR
BODE CARROLL MC COY HOEFLE & MIHAL SC

ATTORNEY MICHAEL J HICKS
HILLS & HICKS SC


Appealed to Circuit Court. Affirmed April 7, 2001. Appealed to Circuit Court.  Affirmed February 13, 2002. [Court of Appeals decision]

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