Danyl Albright Applicant
Deckert WL Co., Inc. Employer
Acuity Ins. Co. Insurer
No. 2017-013593
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
June 28, 2019
Atty.
Paul R. Riegel
Atty.
Alex E. Eichhorn
WORKER'S COMPENSATION DECISION AND REMAND
ORDER
[1]
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission modifies and
affirms the decision of the administrative
law judge as to causation, extent of disability, and
reasonableness of treatment; the commission sets
aside and remands the decision
regarding the amounts the respondent must pay for the medical
treatment expenses that were incurred to treat the
applicant's work injury. Accordingly, the respondent
shall pay:
1. To the applicant, the sum of seventy-three thousand, one
hundred sixteen dollars and eighty-five cents ($73,116.85),
for temporary total disability and permanent partial
disability benefits; and the sum of thirty dollars and no
cents ($30.00) for medical expense reimbursement.
2. To the applicant's attorney, the sum of eighteen
thousand, two hundred seventy-nine dollars and twenty-one
cents ($18,279.21), for attorney fees.
Respondent
is entitled to take a credit against the amount to which the
applicant is otherwise entitled for any correspondent
payments of worker's compensation benefits that have
already been paid, including short-term disability, long-term
disability, or Social Security offset. Jurisdiction is
reserved for such further findings and orders as may be
necessary consistent with this order.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
In June
of 2017, the applicant filed a hearing application, alleging
an occupational back injury with a date of injury of March
20, 2015. The employer and its insurer (collectively, the
respondent) conceded jurisdictional facts and an average
weekly wage of $860.00. An administrative law judge for the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation Hearings, heard
the matter on May 8, 2018, and issued a decision on September
17, 2018, finding that the applicant sustained an
occupational back injury, and awarding benefits. The
respondent filed a timely petition for review.
The
commission has considered the petition and the positions of
the parties and has independently reviewed the evidence.
Based on its review, the commission modifies (rewrites) and
affirms the decision of the administrative law judge as to
causation, extent of disability, and reasonableness of
treatment, and sets aside and remands the decision for a
determination of the amount of the medical expenses that were
incurred to treat the applicant's work injury.
Findings
of Fact and Conclusions of Law
1. The
applicant, who was born in 1966, worked for about ten years
for the respondent, a fabricator and distributor of rubber
and plastic conveyor belts and related products,
2 first as an intern and then as a tool and
die maker.
2. The
applicant started working for the respondent in 2005 in an
internship while he was going to school for mechanical
engineering.
3 As an intern, the applicant
worked for two summers, about 15 to 20 hours per week,
working on design projects.
4 The applicant described this work as
"only very occasionally" physical in
nature.
5 In 2009, the applicant was
hired full-time and did a variety of jobs, including working
in an office role, a maintenance role, a production role, and
a role in the machine shop.
6 He spent occasional time on the production
floor:
The only time I worked on production was when they were
behind, and usually when they were behind, they were pretty
far behind, so I would get called out there to catch them up.
And the jobs that I did, sometimes it was running that
radiofrequency welding machine and making those grain belts.
Other times it was running things through the splitter and
punching some slots in them and rolling them up and then
tying them together and stacking them on a skid to get those
out. And, I mean, there was all different types and stuff,
and I didn't do it all the time. I'd be the first to
admit I was doing different work there, but when production
was slow…[7]
3. The
applicant indicated that the heaviest weights he lifted would
have been not more than 100-120 pounds.
8 Some of the bigger belts the respondent
made were 60 feet long that would need to be cut and rolled
up, and then fed into a machine.
9 Most of the time he lifted things himself,
but sometimes the applicant used a fork lift or had others
help. When he worked in production, the applicant would spend
anywhere from a few hours to up to three days there,
depending on the type of material or the type of belt being
built or the number of people missing that he had to fill in
for.
10
4. The
applicant also did maintenance on production
machines,
11 and he also ran a milling
machine and various lathes.
12 The applicant is 6'4" tall and
indicated that the controls on a milling machine were fairly
low to the ground and he had to bend over to run
those.
13 The applicant used
software to make design sketches, and he estimated that in a
typical day he spent about one out of nine hours at his desk;
the rest of the time he was in the machine shop making a tool
or fixture, or doing some kind of maintenance work, or
helping out in production.
14 He enjoyed his work because it was not
the same thing every day.
15 The applicant also filled in as needed
in the shipping and receiving area.
16
5. The
applicant thought that on days he was working in the shop,
his back would be sore at the end of the day, but he
"never thought nothing of it other than that [he] worked
hard all day, and that's to be
expected."
[17] While he
worked at the respondent between 2014 and 2015, the applicant
indicated that he had to take a pain pill in the morning and
in the afternoon, and then he would take Vicodin in the
evening.
18
6.
Stephen Maas, the employer's president and owner,
confirmed the applicant's description of his work
duties.
19 Regarding whether the
applicant's work was strenuous, Mr. Maas indicated that
it would depend on the function and how heavy an object you
are lifting or how much cranking you are doing; since Mr.
Maas only did the work part-time, he could not say:
"It's just one of those things that, you know, an
operator does, and, you know, if you're having problems,
you stop and rest. It's up to the
individual."
[20] He agreed
that there were times the applicant had to lift large poles
occasionally, and that his work involved awkward positions,
bending over fixing machines, and maintenance.
21
7. The
applicant's medical history shows a history of prior
treatment for low back pain before the applicant's
alleged date of injury of March 20, 2015. The applicant
indicated that his back started to bother him in 2011, and he
sought treatment in 2012 because it was getting harder to
deal with it. "It got to a point where all of a sudden
it stopped getting better and it just kept getting worse, and
then that's when I sought treatment for it because it was
affecting my ability to do my job."
22
8. The
applicant treated with his primary care doctor, Dr. Wieslaw
I. Frankowski, M.D., for an annual physical exam on March 6,
2013. Dr. Frankowski noted the applicant had lumbar
radiculopathy.
[23] The note
indicates that the applicant had chronic back pain. The
applicant treated with Dr. Frankowski on March 20, 2013, for
low back pain at 8/10 with pain radiating to the right leg at
the knee level and was diagnosed with lumbar
radiculopathy.
[24] The applicant
again treated for low back pain on April 17, 2013, with pain
at 5/10.
25 The applicant had an
x-ray of his lumbar spine on October 2, 2013, which showed
mild degenerative changes, but was otherwise
negative.
26 Dr. Frankowski noted that
the applicant was there for evaluation of tail bone pain, low
back pain, and shoulder pain; the applicant denied injury or
heavy lifting.
[27] The applicant
again treated with Dr. Frankowski for back pain of 5/10 on
January 17, 2014.
[28] Dr.
Frankowski noted the applicant was seen for chronic back
joint pain and lumbar radiculopathy.
9. On
March 8, 2014, the applicant first treated with Dr. Douglas
Milosavljevic, M.D., on referral from Dr. Frankowski, and
planned for follow-up care for severe lumbar pain with
radiculopathy. The medical note indicated that the applicant
needed a lumbar MRI, then epidural...
