GLORIA VELOZ Applicant
v.
MAGLIO & COMPANY Employer
SELECTIVE INS CO OF SOUTH CAROLINA Insurer
Claim No. 2018-011644
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
March 1, 2021
Worker’s
Compensation Decision1
Michael H. Gillick, Chairperson.
Interlocutory
Order The commission affirms in part and reverses the
decision of the administrative law judge. Accordingly, within
30 days from this date, Maglio & Company and Selective
Insurance Company of South Carolina (respondents) shall pay
to the applicant compensation in the amount of Thirty Two
Thousand Eight Hundred Ninety-Two dollars and Seventy-Five
cents ($32,892.75); and to applicant's attorney, Douglas
J. Phebus, fees in the amount of Eight Thousand Six Hundred
Twenty-Seven dollars and Twenty cents ($8,627.20), and costs
in the amount of One Thousand Six Hundred Sixteen dollars and
Twenty cents ($1,616.20).
Respondents
are additionally liable for all medical treatment expense,
including reimbursement due for out-of-pocket or third-party
insurer payments, incurred between the date of injury on
September 14, 2013, and the date of November 30, 2016. The
applicant shall submit to respondents a new WKC-16-B
itemizing the unpaid medical expenses due for that period,
and respondents shall make payment of those expenses within
30 days of receiving the new WKC-16-B, or shall inform the
applicant and his attorney of any disputed amounts. If the
parties are unable to reach agreement with respect to any
disputed medical expenses, opportunity shall be afforded for
additional hearing solely with respect to that issue.
Credit
shall be given to respondents for any prior payment of
compensation and/or medical expense that overlaps the amounts
due in accordance with the commission's decision.
Jurisdiction
is reserved solely with respect to the issue of medical
expense, as noted above. In all other respects this order is
final.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
On May
9, 2018, the applicant filed a hearing application claiming
compensation, including medical expense, for a low back
injury sustained while she was performing services in the
employment of the respondent employer, Maglio & Company.
Respondents disputed the claim, and an ALJ of the Department
of Administration, Division of Hearings and Appeals, Office
of Worker's Compensation Hearings held hearings in the
matter on August 20, 2019, and on February 24, 2020. On April
27, 2020, the ALJ issued a decision awarding compensation as
set forth therein. Respondents timely filed a petition for
commission review alleging error in the ALJ's decision.
The
commission has reviewed the evidence submitted at the
hearings, and considered the arguments set forth in the
petition and in respondents' brief. The applicant did not
file a brief, but the commission also considered the
applicant's position based upon the evidence and the
ALJ's decision. Based upon its review and analysis, the
commission makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant was born in Mexico on April 17, 1960. She finished
the 6th grade and then began working because her
father died. She operated her own sewing business in Mexico,
and then her own taco business before coming to the United
States in the year 2000. She worked with a temporary help
agency for approximately five years before being hired by the
employer in 2005. There she worked as a packer and general
laborer, which included the duty of lifting, moving, and
palletizing 25-lb. boxes of tomatoes. She worked there
full-time, with significant overtime hours up to the work
incident of Saturday, September 14, 2013.
2. On
that date, she was lifting one of the 25-lb. boxes of
tomatoes when she experienced strong low back pain that
prevented her from continuing to work. She was seen at an
emergency room and diagnosed with low back strain and pain
radiating into her leg. On Monday, September 16, 2013, she
began treating with Matthew J. Schubert, M.D., who initially
took her off work, but then allowed her to go back on limited
duty after the employer called him and indicated it had
stationary work available.2 However, Dr. Schubert saw the applicant
on September 24, 2013, and she indicated that the employer
had given her work that required bending, which resulted in
continuing back pain. Dr. Schubert therefore excused the
applicant from work for a week.
3. Dr.
Schubert saw the applicant on September 30, 2013, and she
indicated to him that her back pain remained at the 8/10
level. Dr. Schubert took her off work for another two weeks
and referred her to physical therapy. When the applicant saw
Dr. Schubert on October 25, 2013, her symptoms persistent,
and he ordered a lumbar MRI that was performed on October 29,
2013. Dr. Schubert reviewed the MRI and indicated there was
mild facet arthropathy in the lower lumbar segments, but no
canal or foraminal stenosis. He recommended a continued
exercise program and gave her another three weeks off work.
He did not thereafter continue to treat the applicant.
4. Dr.
Schubert referred the applicant to Lawrence J. Maciolek,
M.D., who first saw her on November 20, 2013. She told him
the physical therapy had not helped her, and that she had no
significant leg pain but continuing pain in the lumbosacral
area. He noted that the MRI had shown no evidence of
significant central canal or foraminal stenosis. He advised
her to continue physical therapy. Dr. Maciolek saw her again
on December 27, 2013, and she complained of continuing pain
now radiating into the right hip and groin area. He reviewed
her right hip x-rays and found them to be negative. He
referred her to pain management. Finally, he indicated that
he did not see a role for surgical intervention, and he
released her to light duty.
5. The
applicant saw Nina L. Bendre, APNP at a pain management
clinic on January 8, 2014. She told APNP...
