Bell, 062819 WIWC, 2015-002513

• Case Date: June 28, 2019
• Court: Wisconsin

Scott A. Bell Applicant Tradesmen Int'l, Inc. Employer Ins. Co. of State of PA c/o Gallagher Bassett Serv., Inc. Insurer No. 2015-002513 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission June 28, 2019           Atty. Dennis H. Wicht           Atty. Douglas M. Feldman           WORKER'S COMPENSATION DECISION AND REMAND ORDER ^[1]           Michael H. Gillick, Chairperson.          Order          The commission affirms in part, and sets aside and remands in part, the decision of the administrative law judge. Accordingly, the respondent shall pay:

1. To the applicant, the sum of twenty-three thousand, two hundred seventeen dollars and no cents ($23,217.00), for permanent partial disability.

2. To the applicant's attorney, the sum of six thousand, two hundred forty dollars and no cents ($6,240.00), for attorney fees; and the sum of one thousand, seven hundred forty-three dollars and no cents ($1,743.00) for costs.

         The commission sets aside the decision of the administrative law judge in part, and remands the matter to the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings for further proceedings consistent with the following:

1. A new hearing before an administrative law judge shall be held on the issue of whether the applicant's work after March 24, 2014, constituted a new work injury; the determination of which employer and insurer are liable for the applicant's disability and medical treatment after March 24, 2014; and the extent of the applicant's disability, including loss of earning capacity.

2. Both Tradesmen and C R Meyer & Sons Co. shall be included as the possible liable employers in the remand proceeding. Additionally, their respective insurance carriers shall be included as parties to the proceeding.

3. The hearing record produced from the hearing held on July 3, 2018, shall be incorporated into the new hearing record, with opportunity for all parties to re-examine the applicant regarding the testimony he gave at that hearing. All parties may also submit additional testimony and exhibits, including evidence in response to the exhibits submitted at the hearing held on July 3, 2018.

4. Thereafter, the administrative law judge shall issue a new decision with new appeal rights. By the Commission:

          David B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner          Procedural Posture          In October of 2015, the applicant filed a hearing application claiming benefits for a repetitive neck injury. The parties stipulated to jurisdictional facts and a maximum average weekly wage for permanent partial disability purposes ($1,281.00). An administrative law judge for the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings, heard the matter on July 3, 2018, and issued a decision on August 10, 2018, finding that the applicant sustained a work-related neck injury and awarding benefits, including a 50% loss of earning capacity. The respondent filed a timely petition for review.          At issue is whether the applicant sustained a work-related cervical spine injury, and if so, the nature and extent of that injury. In addition, the respondent raised the issue of who should be the liable employer/insurer on the claim.          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 in part, and sets aside and remands in part, the decision of the administrative law judge.          Findings of Fact and Conclusions of Law          1. The applicant, who was born in 1960, never graduated from high school or received a GED.2 He spent three years in the Marines, after which he worked as a carpenter until he became an iron worker.3 The applicant had been a member of Iron Worker's Local 8 for approximately 20 years.4 He was a union iron worker, which included doing welding.5 Other than some treatment after a motor vehicle accident in 2001,6 and a finding at the time that the applicant had preexisting degenerative disc disease, the applicant's medical history was unremarkable regarding his cervical spine.          2. In October and November of 2012, the applicant was working for Tradesmen International (Tradesmen), a temporary help service for skilled labor, and had been placed at Marinette Marine, a ship builder located in Marinette, Wisconsin.7 He was working for Tradesmen rather than through his union shop at this time because he had lost his license due to a driving under the influence conviction and could not travel back and forth to work.8 At Marinette Marine, the applicant worked as a fitter and welder for about six to eight weeks.9 In his work, he would fit and weld stiffeners onto bulkheads in a warehouse for different sections of the ships.^[10] The stiffeners were anywhere from three feet to 30 feet long.11 The applicant would work bent over on his knees attaching the stiffeners to the bulkheads for an entire 8­hour day, less two breaks of a total of 30 minutes.^[12] The applicant would have to weld under the stiffeners, which required him to kneel bent over with his head cocked in an upward position.13 Sometimes he needed to use mirrors to see under the fasteners.14 He did not stay in a static position, but he was always moving.15 The applicant's work involved strenuous work activities that impacted his cervical spine.          3. The applicant had some neck soreness from the work for Tradesmen and from having the welding hood on all day.16 The welding hood was a piece of fiberglass that weighed about two or three pounds and that attached to a hardhat.17 In a day, the applicant estimated that he would have to flip the welding hood over 100 times.18 The applicant indicated that as a welder for 20 years he had stiffness in his neck before this time, but he had never treated for his neck or had surgery on his neck.19 He would use Advil.20          4. On November 29, 2012, the applicant thought his neck seemed a little worse than normal, and the pains across his shoulder and neck area were a little more than normal, and it got progressively worse.^[21] The next day the applicant woke up in the morning and his arms were locked up and his neck was stiff.22 He called the employer and indicated he would not be coming into work, but he did not seek medical attention because he thought it would get better over the weekend.23          5. On November 30, 2012, the applicant called a triage nurse indicating that he thought that he had "slept funny" on the couch and had pain in his neck and upper back/shoulder area:

Patient stated he woke up at 4:30 AM and tried to turn off his alarm clock and "felt an excruciating pain to his neck and shoulders." Patient stated pain seems to be when lifting his arms, bending forward, or when reaching. He states he could not stand the pain, so he decided not to go to work today. Patient stated he did not have this pain prior to sleeping on the couch last night.

         The nurse advised the applicant to try heat; he indicated he would, and that he would go to the ER if necessary.24 However, the next day it was worse, and he decided to go to the emergency room.25          6. On December 1, 2012, the applicant went to the emergency room at the Bay Area Medical Center:

The patient presents to the ED for evaluation of neck pain. He reports that he was working his welding job approximately three days ago when he began feeling neck stiffness. The patient continued working and finished out his day as usual. He states that when he woke up the next morning, he felt pain "worse than I have ever felt in my life" with decreased range of motion.

The patient states that the pain sometimes radiates down the middle of his back.^[26]

         7. The applicant later reported to the ER again with neck stiffness that began 3 days ago: "Patient states that he has been a welder for the last 20 some years and is in the habit of shaking his head forward to get his welding mask down. He believes that this may have something to do with the pain."^[27] He was given pain relievers and muscle relaxants and advised to follow up with his primary care provider.          8. On December 5, 2012, the applicant saw Dr. Gian C. Daroach, M.D., who noted a chief complaint of neck pain; the applicant was having a hard time moving his neck from side to side and also had pain in the scapular area. There was no pain radiation to the arms. An x-ray of the cervical spine revealed...