Melissa Borchardt Applicant
Precision Plastics, Inc. Employer
Hartford Accident & Indemnity Co. Insurer
No. 2017-018987
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
June 28, 2019
Atty.
Jason W. Whitley
Atty.
Eric W. Lengel
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
August of 2017, the applicant filed a hearing application
seeking compensation for a traumatic work injury to her back
while in the scope of her employment, with a date of injury
of October 14, 2014. An administrative law judge for the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation Hearings, heard
the matter on April 2, 2018, and issued a decision on June
22, 2018, allowing benefits. The employer and its insurer
(collectively, the respondent) filed a timely petition for
review. The respondent conceded jurisdictional facts and an
average weekly wage of $420.00. At issue is whether the
applicant sustained a work-related traumatic low 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 1978, began working for the
respondent, Precision Plastics,
2 in June of 2014 as a blow mold
operator.
3 The respondent made plastic
water jugs. Plastic resin pellets from an outside silo were
moved into the factory by means of an auger that turned and
fed the plastic pellets into a blow mold machine which made
the plastic water jugs.
4 The applicant indicated that there were
only two employees working on a shift and, as an operator,
she was in charge to make sure the product was coming out and
to deal with people picking up the product.
5
2. The
applicant alleges that on October 14, 2014, she was standing
around while other people were tearing apart the blow mold
machine and she was asked to help take the auger motor from
inside to put it in a truck outside.
6She described the alleged injury as
follows:
I was helping my boss move a motor. When we were going down
the stairs with it, gravity took hold, and as it slipped out
of my hands, my boss was going to fall down the stairs, five
stairs down, and land on cement with a motor on top of him.
So without thinking, I just grabbed for the motor so it
wouldn't fall on him, and that's when my back
hurt.7
3. The
applicant indicated that the motor was about 3½ to 4
feet long and weighed about 220 pounds; she was carrying the
end of the motor with the cap on it and her boss was carrying
the end with the shaft.
8 There were six stairs, and her boss went
down the stairs first.
[9] No one slipped:
Nobody slipped. When he went down the stairs, he hit
probably, like, the third stair. Because we're both tall.
He hit, like, the third stair down, and I had to bend down
because I'm tall to, you know, compensate for him to go
down. And nobody slipped. I had – I had the heavy end
of the motor with the – the cap on it. My fingers
slipped. Gravity took – I mean, I was bending down like
this (indicating) when the – you know, gravity took
over. It just slipped out of my hand.10
4. The
applicant indicated that she made a split-second decision to
help avoid her boss getting hurt and she lunged forward; as
she grabbed the motor she immediately felt pain in her
back.
11 She described the
sensation as a pull and it was numb, and then it was a
burning sensation; she indicated that she fell instantly to
her hands and knees.
[12] According to
the applicant, she could not walk and someone had to carry
her out of work; the incident happened before noon and a
coworker drove her home and she was home by 12:15
p.m.
13 The applicant returned to
light duty work in November and worked light duty for a short
time, but never returned to her full duties at the
employer.
14
5.
According to the applicant, prior to October 14, 2014, she
had not had any trouble with her low back.
15
6. The
applicant sought chiropractic care on October 17, 2014. The
medical notations from Ashley Anderson, D.C., on October 17,
2014, describe the applicant's subjective complaints as:
Disabling constant sharp, numb and tingly pain, rating a 10
on a 10-scale, where 0 is not severe at all and 10 is
extremely severe, in the following regions: lumbar, sacral
(right side), radiating to: right leg. This condition was
caused by insidious onset. Onset 10/14/14.16
A
patient information form marked "complaint" as the
reason for the visit, and not "work
injury."
[17] It indicated
the right lower back and right leg pain began on Tuesday at
2:00. Dr. Anderson noted that the applicant used a cane to
walk and had a difficult time getting on and off the table. A
handwritten note by the chiropractor dated October 17, 2014,
states:
Your employee/my patient, Melissa Borchardt, injured her back
on 10/1014/14. 10/14/14 She is
suffering from disc issues, subluxations + a sprain/strain
injury. She is unable to walk, work, function, etc. We will
keep you updated. Thanks for your cooperation.18
7. The
chiropractor indicated the applicant could not work until
October 20. The applicant was released to work with
restrictions from November 22, 2014, to November 24, 2014,
and was then restricted from working again on November 26 to
27.
19 The reference in the
chiropractic notes that the "condition was caused by
insidious onset. Onset 10/14/14" was repeated on October
20, 24, 27, 30, 31, November 3, 5, 7, 10, 12, 14, 17, 19, 21,
and 26.
20There is no reference to a
work injury.
8. On
October 30, 2014, Dr. Anderson noted that the applicant had
moderate to severe pain in her cervical and thoracic spine
caused by moving a dresser and cleaning with an onset of
10/30/14: "The patient moved a light dresser and was
cleaning this morning and felt a 'pop' in the right
side of her neck. She now has pain and can't turn her
head."
[21] On November
3, 2014, the applicant told Dr. Anderson that she was
concerned about going back to work because she did not feel
she was up to it yet. On November 10, 2014, Dr. Anderson
noted that the applicant "hurt her lower back again this
weekend after 'overdoing it.'"
22 On November 21, 2014, Dr. Anderson noted
that the applicant worked one day but could only work 6.5
hours. On November 26, 2014, Dr. Anderson noted the applicant
was driving a forklift at work and her co-worker startled
her, causing her to tense up, and she was walking with a cane
again.
23 This is the last
treatment note with the chiropractor.
9. The
applicant indicated that after she saw the chiropractor, she
went to a massage therapist in Rice Lake for a while, and the
massage therapist was able to help her to be able to walk
again.
24 The applicant did not
have medical insurance and did not apply for Badger Care
because she owed child support.
10.
Several months later, on August 27, 2015, the applicant
presented at the emergency room for back pain and stated it...
