Reginald E. Bien-Aime Applicant
Speedy Metals, Inc. Employer
Travelers Indemnity Co. of Connecticut Insurer
No. 2015-000535
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
June 28, 2019
Atty.
Jacob A. Manian
Atty.
J. Michael Sturino Robert L. Clark
WORKER'S COMPENSATION
DECISION
[1]
Michael H. Gillick, Chairperson
Order
The
commission reverses the decision of the
administrative law judge. Accordingly, the application for
benefits is dismissed.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
In
January of 2015, the applicant filed a hearing application
seeking compensation for a lower back/leg injury with a date
of injury of September 9, 2014. The respondent conceded
jurisdictional facts and an average weekly wage of $620.00.
An administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker's Compensation Hearings, heard the matter on
November 29, 2016, June 26, 2017, and March 19, 2018, and
issued a decision on July 24, 2018, allowing benefits. The
employer and its insurer (collectively, the respondent) filed
a timely petition for review. At issue is whether the
applicant sustained a work-related lower back injury, and if
so, the nature and extent of any disability, and the
respondent's liability for medical expenses.
The
commission has considered the petition and the positions of
the parties and has independently reviewed the evidence.
Based on its review, the commission reverses the decision of
the administrative law judge and makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, who was born in 1979, began his employment with
the respondent in May of 2012. He indicated that he had no
work restrictions when he began working for the
respondent.
2 The applicant worked as a
band saw operator.
[3] He would take the
raw material and insert it into a machine to cut it to the
proper size.
4 He would lift materials off
racks; this included different grades of steel and aluminum,
copper, brass, etc.
[5] When he started,
he worked with carbon materials, and then moved to the
stainless steel department.
6 Some plates that he lifted could be from
an eighth of an inch thick up to 3 inches thick, and weigh up
to 200 pounds.
[7] He usually worked
10- to 12-hour days, which included overtime.
8 His work involved constant
lifting.
9
2. The
medical records that show that prior to the work incident the
applicant had treated on a couple of occasions for his lower
back. On September 24, 2012, the applicant treated at
Columbia St. Mary's for a possible pulled muscle in his
lower back. Dr. Matthew J. Schubert, M.D., noted the history
of the applicant's complaint:
The patient is a pleasant 32-year-old male who approximately
two weeks ago noticed a bit of low back pain. He believes
this is secondary to having a physically demanding job. He
works with steel and has to lift heavy bundles on a frequent
basis. The pain was not very significant until 2 days ago on
Saturday, September 22, with the insidious onset of his low
back pain. It restarted with radiation on the right leg and
secondarily difficulty with ambulating distances. The patient
denies any numbness or tingling. There is only weakness
secondary to pain….He had a similar incident of this
secondary to a football injury in high school. He recalls
getting what he describes as an epidural at that time with
good relief of the pain.10
Dr.
Schubert assessed low back pain with some radiation down the
right side. He prescribed Vicodin and referred the applicant
to physical therapy. An x-ray of the applicant's lumbar
spine on May 14, 2013, showed bilateral pars defects at L5,
and disk narrowing at L5-S1 but no
spondylolisthesis.
[11]
3. On
September 9, 2014, the applicant was working on an order
involving cutting 14- or 15-inch metal disks about 3 inches
thick.
12 After he put a cut piece
on a pallet, he turned around and walked to retrieve the next
piece. As he did so, he felt his leg give out and he stumbled
and felt pain in his lower back.
13
4.
Michael Buckett worked for the respondent from 2010 to 2015,
and during that time he supervised the
applicant.
14 Mr. Buckett and the
applicant were work friends and the applicant had been to his
house several times before the alleged work
incident.
15 Mr. Buckett indicated
that the applicant had previously told him about his personal
back issues from having sexual relations with his
wife.
16
5. On
September 9, 2014, Mr. Buckett saw what he thought was the
applicant dancing at a machine, and the applicant
subsequently told him that his back went out.
17 When the applicant said that his back
was sore, Mr. Buckett did not think that he was saying that
he had a work-related injury.
18 The applicant never told Mr. Buckett
that he had a work-related injury,
19 but Mr. Buckett told the applicant that
if he thought his back was work-related, he needed to talk to
Bob Benson and complete the required paperwork.
20Mr. Buckett did not believe the applicant
when he said his back hurt, and did not fill out an accident
report.
21 If he had thought the
applicant was reporting a work-related injury, he would have
completed a work injury form or guided the applicant through
that process.
[22] The applicant
completed his regular duty work shift that day.
23 The applicant did not report a work
injury on September 9, 2014.
6. The
applicant alleged that he worked light duty after this
incident for a week and a half.
24 Mr. Buckett did not direct the applicant
to work light duty and did not have authority to put someone
on light duty.
[25] He never
directed the applicant to work light duty at any time and the
applicant worked a regular duty, full-time until his last day
of work.
26 Several Work Order sheets
reflect the applicant's initials for cutting metal on the
date of the alleged injury, as well as in the days following
the injury.
[27]
7. The
applicant was terminated from his employment on September 22,
2014.
28
8. The
applicant came to Mr. Buckett's house four times after
the applicant no longer worked at the respondent, asking Mr.
Buckett to testify on his behalf and to state that he saw him
get injured at work.
[29] Mr. Buckett
completed two affidavits regarding these contacts with the
applicant.
30 The applicant informed
Mr. Buckett of various problems he was facing, including
financial difficulties and a possible eviction, and indicated
that he needed Mr. Buckett to remember him getting hurt at
work so he could win his case.
31 Also, the applicant told him that if
there was any money left over from his claim, he would help
him out.
32 Mr. Buckett indicated
that all he could say was that he recalled the applicant in
general terms saying that his back hurt; he did not see a
specific workplace injury.
33 While the applicant was at his
apartment, the applicant called his attorney multiple times
and asked if what Mr. Buckett had said was enough to win his
case.
34 Mr. Buckett described
this as the applicant asking him to lie for him.
35
9. The
commission credits Michael Buckett that he did not witness
the applicant injure his back at work on September 9, 2014;
that the applicant did not report a work injury to him; that
the applicant continued to work his regular work duty after
the alleged incident; and that the applicant attempted to get
him to state that the applicant injured his back at
work.
36
10.
Robert Benson, the operations manager for Speedy Materials,
indicated that the applicant never reported a work injury to
him, but that he did report a nonwork-related injury related
to having sexual intercourse with his wife.
37He did not recall the applicant being
placed on light duty in September of 2014, and no one had
directed him to put the applicant on light duty due to any
physician's restrictions.
38 Mr. Benson indicated that the work
orders in Exhibit 9 showed that the applicant...
