Barth, 073019 WIWC, 2018-000284

Case DateJuly 30, 2019
CourtWisconsin
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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT