Bruinsma, 010419 WIWC, 2016-028907

• Case Date: January 04, 2019
• Court: Wisconsin

MARC BRUINSMA Applicant LANDMARK MASONRY LLC Employer RURAL MUTUAL INSURANCE COMPANY Insurer No. 2016-028907 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission January 4, 2019           Attorney Dennis H Wicht           Attorney Robert P. Ochowicz           WORKER’S COMPENSATION DECISION 1           Georgia E. Maxwell, Chairperson.          Order          The commission modifies, and as modified affirms the decision of the administrative law judge (ALJ) issued in this matter on June 5, 2018. Compensation, including medical expense, as well as attorney fees and costs, are due in accordance with the provisions of the ALJ's decision. As noted below, the commission has modified the ALJ's order to be final, not interlocutory.          Procedural Posture          The applicant submitted a hearing application which claimed compensation, including medical expense, for an injury allegedly arising out of and in the course of his employment with Landmark Masonry, LLC on September 16, 2016. Landmark Masonry, LLC and Rural Mutual Insurance Company (respondents) disputed the claim. On March 6, 2018, an ALJ for the Division of Hearings and Appeals of the Department of Administration held a hearing and issued a decision awarding compensation. The respondents submitted a timely petition for commission review.          The commission has reviewed the evidence submitted at the hearing. It has considered the petition and the positions of the parties in conjunction with that evidence. Based on its review, the commission affirms the findings and conclusions of the ALJ's decision subject to the following:          Modifications          1. Delete the first paragraph on page 3 of the ALJ's decision and substitute the following two paragraphs therefor:

At 5:30 a.m. on Saturday, November 19, 2016, the applicant sought emergency treatment for his symptoms at Memorial Medical Center in Neillsville, Wisconsin, near where he had planned to go deer hunting. The history of this "Triage" visit was recounted on a clinic note completed by an individual named Beth A. Maske, whose position and qualifications are not identified on the note. It could be that Maske is a registered nurse, because there is an illegible signature on a line in the clinic note identified as: "Triage RN signature." Maske noted that the applicant complained of "chronic" and "throbbing" left shoulder pain for which he had been taking medication. She also recorded that the pain, "...has been going on for months...denies injury or trauma to the area. Does work for a masonary (sic) as his job." Without explanation, Maske recorded the visit as "Non-Urgent" and "Not Work Related."

Maske noted that the applicant was seen by a Dr. Holets, and that he was given a nonsteroidal anti-inflammatory drug, Toradol, which helped relieve his pain. Dr. Holets refilled the applicant's prescriptions and advised him to follow up with his hometown physician. He released the applicant at approximately 6:15 a.m. The applicant did not go hunting but telephoned his parents who drove up to where was to give him a ride home.

         2. Delete the second, third, and fourth paragraphs on page 3 of the ALJ's decision and substitute the following paragraphs therefor:

Later in the day on November 19, 2016, the applicant was treated at Froedtert Hospital in Milwaukee for worsening neck and left shoulder pain. The clinic note recounts the details of the work injury, but incorrectly indicates that it occurred at "the end of August." The note also records: "Pain was manageable up until 3 days ago. No re-injury." He was seen by Marc A. Kostic, M.D., who noted that the applicant had been dealing with his symptoms "for almost 3 months," and that a cervical MRI was the next step.

Later that same Saturday, the applicant telephoned his parents who agreed to drive up and give him a ride back to his home. That evening he went with his wife to Froedert Hospital due to increasing symptoms. A history was taken there of recurring and worsening pain to the left shoulder and side, since the work incident. The history indicates the pain had been manageable until three days ago. "No pertinent past medical history," other than the work injury, was noted. Marc A. Kostic, M.D., administered a trigger point injection of lidocaine at the base of the neck and left trapezius muscle. Dr. Kostic indicated that the next step should be a cervical

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