Dennis M. Barth Applicant
Waupaca Foundry, Inc. Employer
Sentry Cas. Co. Insurer
No. 2018-000284
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
July 30, 2019
Atty.
Daniel L. Zitzer
Atty.
Rachel K. Fitzgerald
WORKER’S COMPENSATION DECISION AND REMAND
ORDER
1
MICHAEL H. GILLICK, CHAIRPERSON
Interlocutory
Order
The
commission modifies and affirms in part, and sets aside and
remands in part, the decision of the administrative law
judge. Accordingly, within thirty (30) days from the date of
this order, the respondent shall pay:
1. To
the applicant, the sum of three thousand, seven hundred
thirty-six dollars and forty-six cents ($3,736.46) for
permanent partial disability benefits; and the sum of six
thousand, seven hundred twenty dollars and twenty-nine cents
($6,720.29) for reimbursement of medical treatment expenses.
2. To
the applicant’s attorney, Rachel K. Fitzgerald, the sum
of one thousand, two hundred eighty-eight dollars and no
cents ($1,288.00) for attorney fees; and one thousand, four
hundred fifteen dollars and fifty-four cents ($1,415.54) as
reimbursement for costs.
3. For
medical treatment expenses, to the following:
a. Spine and Sport PT of Waupaca, the sum of two hundred
sixty-five dollars and no cents ($265.00).
b. Integrative Pain Management, the sum of three hundred
twenty-nine dollars and twelve cents ($329.12).
c. Anthem Blue Cross/Blue Shield, the sum of six thousand,
eight hundred seventy-two dollars and three cents
($6,872.03).
The
matter is remanded for further hearing and decision on the
issue of the applicability of Wis. Stat. § 102.44(6) to
the applicant’s claim for loss of earning capacity.
With respect to the applicability of Wis. Stat. §
102.44(6), the employer shall provide weekly pay figures for
the applicant for the year preceding the date of injury and
for the period beginning after his return to work subject to
permanent restrictions on January 9, 2017, and shall provide
specific information regarding the work schedule and weekly
wages that were offered to the applicant in the Tumbleblast
Operator position.
The
administrative law judge shall issue a final order on the
issue of loss of earning capacity if he or she concludes from
the evidence that Wis. Stat. § 102.44(6) bars the
applicant’s claim for loss of earning capacity. The
administrative law judge shall reserve jurisdiction on the
issue of loss of earning capacity until the applicant has
made a good faith attempt to retrain if he or she concludes
from the evidence that Wis. Stat. § 102.44(6) does not
bar the applicant’s claim for loss of earning capacity.
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
December of 2017, the applicant filed a hearing application
seeking compensation for a low back injury on September 26,
2013. An administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker’s Compensation Hearings, heard the matter on
October 30, 2018, and issued a decision dated November 19,
2018, finding a compensable work injury and awarding
temporary total disability and 2% permanent partial
disability benefits; the administrative law judge reserved
jurisdiction for claims of loss of earning capacity and
vocational rehabilitation. The employer and 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 $1,269.54. There are several
issues in this case: whether the applicant sustained a
compensable injury arising out of and occurring while
performing services growing out of and incidental to his
employment; if so, the extent of any disability; liability
for medical expenses; whether the applicant unreasonably
refused a good faith job offer; whether the job offer bars
the applicant from a loss of earning capacity claim; and if
the job offer did not bar the applicant from a loss of
earning capacity claim, the extent of the applicant’s
loss of earning capacity or need for vocational
rehabilitation.
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 and affirms in
part and sets aside and remands in part the decision of the
administrative law judge.
Findings
of Fact and Conclusions of Law
As
supplemented by the commission’s memorandum
opinion,
2 the commission makes the same findings of
fact and conclusions of law as stated in the decision of the
administrative law judge and incorporates them by reference
into the commission’s decision, subject to the
following:
Modifications
On page
5 of the decision, in the first line, delete the word,
“job.”
On page
6 of the decision, delete the paragraph starting, “I
make the following findings on the issue of loss of earning
capacity:” and all of the subsequent paragraphs on that
page.
On page
7 of the decision, delete the first and fourth paragraphs.
Memorandum
Opinion
The
applicant, who was born in 1973, began working for the
respondent, a foundry, in 1993.
3 He alleges that he injured his
low back while driving a forklift on September 26, 2013, and
also that his back condition was due to ongoing work
activities that stressed his low back, including twisting and
driving the forklift, and adjusting to work conditions that
were cramped for his 6’7” frame. The applicant
refused a job offer from the respondent that the
applicant’s doctor indicated the applicant could do.
The respondent denies a work injury; however, even if the
commission finds a compensable work injury, the respondent
asserts that the applicant has no permanent disability and is
barred from a loss of earning capacity claim/vocational
rehabilitation retraining because of the unreasonable job
refusal.
The
Applicant’s Work Duties
The
applicant started working for the respondent in 1993 as an
auto DISA inspector and did this job for 17 years; in this
job, the applicant worked 50-60 hours per week inspecting
castings, handling them in containers, and grinding
them.
4 According to the applicant, he would be
slouched over inspecting the castings, and then rotate to the
stacking position and stack the castings in baskets or
skids.
5 The applicant is about 6’7”
tall, and indicated that the working tables were below his
waist level.
6 He recalled that he started to have pains
in his right side of his lower back in 2006.
[7]Though his back
hurt, he never had any permanent restrictions before
2013.
8 The applicant indicated that he had asked
to have the lines adjusted for his height, but no
accommodation was made: “I begged and pleaded for years
for them to change the lines. They never did. I don’t
know what their reasoning was or why.”
[9]
In
2013, when he alleges he injured his back, the applicant had
been working as a forklift driver for about three
years.
10 As a forklift driver, the applicant
would service the lines, removing the dunnage when it was
full and taking it back to the banding or shipping area, and
then he would cool castings.
11 He did not do much lifting in
this job, only about 5 or 10 pounds.
12 Due to his height, the
applicant indicated that he was “scrunched up” in
the forklift, with his knees about 12 inches from his
chest.
13The seats on the older forklifts did not
adjust or were broken “98 percent of the
time.”
14 The applicant spent 90% of his work time
driving in the forklift in the scrunched
position.
15 When he was driving around, the ride was
very bumpy, which the applicant attributed to bad tires and
no suspension.
16
The
applicant alleges that he injured his low back while driving
a forklift on September 26, 2013, and also that his back
condition was due to ongoing work activities that stressed
his low back, including twisting and driving the forklift,
and adjusting to work conditions that were cramped for his
6’7” frame. The applicant sought medical
treatment (described below) that helped with his pain, worked
within restrictions for a brief time in 2014, and continued
to work until February of 2015, when he was involved in a...