Charles W. Berger Applicant
Megtech Systems, Inc. Employer
Illinois Nat’l Ins. Co. Insurer #1
Ace Fire Underwriters Ins. Co. Insurer #2
Nos. 2006-012561, 2018-003405
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
November 13, 2020
Atty.
Robert P. Ochowicz
Atty.
Patricia J. Sandoz
Atty.
Douglas M. Feldman
WORKER'S
COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission modifies and affirms the decision of the
administrative law judge. Accordingly, within thirty (30)
days from the date of this decision, the employer and Ace
Fire Underwriters Insurance Company shall pay:
1. To the applicant, the sum of twenty-eight thousand, four
hundred thirty-four dollars and forty-two cents ($28,434.42)
for temporary total and permanent partial disability
benefits! and four thousand, seven hundred eighty-one dollars
and forty-two cents ($4,781.42) for out-of-pocket mileage and
treatment expenses.
2. To the applicant's attorney, Patricia Sandoz, the sum
of seven thousand, one hundred forty-eight dollars and
sixty-nine cents ($7,148.69) for attorney fees! and one
hundred sixty dollars and thirty-two cents ($160.32) for
costs.
3. For reimbursement for payment medical treatment expenses,
to Illinois National Insurance Company, the sum of three
thousand, six hundred fifty-nine dollars and eighty-four
cents ($3,659.84).
4. To Cigna Health, fifty-two thousand, three hundred
eighty-six dollars and seventy-nine cents ($52,386.79).
5. To UMR, the sum of three hundred forty-four dollars and
seventy-seven cents ($344.77), pursuant to Wis. Stat. §
102.30(7).
6. For medical treatment expenses, to Aurora Bay Care Medical
Center, the sum of four hundred thirty-eight dollars and no
cents ($438.00).
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
The
applicant sustained a conceded neck injury in March 2006, and
Illinois National Insurance Company (Illinois National),
Insurer #1, paid the claim, including a two-level fusion
surgery, temporary total disability benefits, and 20%
permanent partial disability to the neck. Ten years later,
the applicant underwent another fusion surgery in January of
2017 to an adjacent cervical disc. Illinois National
initially paid the claim but then denied it. In August of
2017, the applicant filed a hearing application seeking
compensation for a neck and left shoulder injury, alleging
the date of disability of March 16, 2006. Illinois National
requested impleader of Insurer #2, Ace Fire Underwriters
Insurance Company (Ace), who insured the employer in 2016, on
the grounds that the applicant's need for a second neck
surgery was necessitated by an occupational disease. An
administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker's Compensation Hearings (Division), heard the
matter on December 4, 2018, and April 10, 2019, and issued a
decision dated February 12, 2020, finding a compensable
occupational work injury in 2016 and awarding benefits, and
finding that Ace was liable for the claim and the
applicant's 2017 surgery. Ace filed a timely petition for
review.
Prior
to the hearings, the parties stipulated that the
applicant's average weekly wage was $866.67 on March 16,
2006, and $906.11 on January 20, 2017; and the parties
stipulated to the amount of benefits that would be due, which
the administrative law judge adopted except for a slight
variation in temporary disability benefits and to which the
parties have not objected. The issues are whether the
applicant sustained a neck injury from an accident or disease
arising out of the employment with the employer while
performing services growing out of an incidental to that
employment in 2016 that necessitated the 2017 neck surgery;
and, if so, which insurance company is liable for the
applicant's 2017 neck surgery and disability. The
commission has considered the petition and the positions of
the parties, and has independently reviewed the evidence.
Based on its de novo review, the commission modifies
and affirms the decision of the administrative law judge and
makes the following:
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
administrative law judge's decision and incorporates them
by reference into the commission's decision, subject to
the following:
Modification
On page
9 of the decision, delete the last sentence of the second
paragraph under the heading III. Apportionment, and replace
it with the following: "In this case, the March 2006 was
caused by an accident and not by an occupational
disease."
Memorandum
Opinion
The
applicant, who was born in 1956, worked as a welder for the
employer for about 35 years. In 2006, he sustained a neck
injury and eventually had a two-level cervical fusion at C4-5
and C5-6. Insurer #1, Illinois National, conceded the claim
and paid 20% permanent partial disability benefits. The
applicant returned to full-duty work for the employer. There
was no hearing on this claim. In 2016, the applicant sought
medical treatment for neck pain and ultimately had a cervical
fusion to treat a herniated disc at C3-4. Though Illinois
National initially paid on the claim, it later denied it. The
applicant sought a hearing alleging that the 2017 neck
surgery was necessitated by the 2006 neck
injury.
3 At the request of Illinois National,
the Division impleaded Insurer #2, Ace, who insured the
employer on the date of the 2016 claim, on the grounds that
the second surgery was necessitated by an occupational
disease. Illinois National and the applicant now assert that
Ace is solely responsible for the applicant's 2016
occupational neck injury. Ace asserts, first, that the
applicant did not sustain a work-related occupational neck
injury in 2016. In the alternative, if the commission finds
that the applicant did sustain a work-related occupational
neck injury in 2016, Ace asserts that liability should be
allocated between Illinois National and Ace because the 2006
injury should also be considered an occupational disease
injury; and Ace argues that liability may be apportioned
between the two occupational disease injuries under Wis.
Stat. § 102.175 and also under case law. In response to
Ace's alternative argument, Illinois National and the
applicant assert that the 2006 injury was an accidental
injury, not an occupational disease injury, but in any case,
the law does not allow for apportionment between an
occupational disease and any earlier injuries. The parties
stipulated to the amount of benefits due.
The
Applicant's Work Duties and His 2006
Work-Related Neck Injury
The
applicant started working for the employer in 1984 as a
welder. He worked full time and spent two to five hours per
day welding.
4 From 1984 until 2006, the applicant
had never had any neck pain, had never seen a doctor for a
neck problem, and had never had any medications or
restrictions for his neck.
5 He did have prior medical treatment for low
back issues.
6
On
March 16, 2006, the applicant had not had any health issues
when he arrived at work. He stated, "I felt great that
day" and that he felt
"wonderful."
7 He had no difficulties performing his
duties before he climbed into a dryer unit to install a piece
of equipment called a web threader.
8 The dryer was about five
feet wide, 10 feet long, and about five feet
high.
9 The applicant testified that there was
a small area that he had to crawl into and sit down, and that
it was tight to his back and tight to his stomach. He was
trying to hook up a rod and it was not cooperating. He was in
the tight space for about 45 minutes.
10 He stated,
"I was trying to turn my head in there, trying to get it
to line up. And as time went on, the pain went—started
in my neck and worked down my shoulder and I got out because
I couldn't take it."
11 The pain started to go
down the applicant's left arm and he thought he was
having a heart attack. He described it as a sharp pain going
down his left arm and some tingling in his left hand, and he
had pain in his neck and shoulder.
12 He did not feel a pop,
but he described the pain as "hitting him," and
that he thought he was having a heart...
