Donald J. Busche Applicant
Entech Builders, Inc. Employer
Acuity Ins. Co. Insurer
No. 2016-030126
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
November 13, 2020
Atty.
Steven G. Kmiec
Atty.
Jeffrey J. Strande
WORKER'S
COMPENSATION DECISION
1
Michael H. Gillick, Chairperson
Order
The
commission affirms the decision of the administrative law
judge. Accordingly, the application for 10% permanent partial
disability at the right hip is dismissed.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
The
applicant filed a hearing application in February of 2019
claiming a 10% permanent partial disability for the right
lower extremity due to a ruptured right hamstring, with a
date of injury of November 7, 2016. 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 October 31, 2019,
and issued a decision dated January 29, 2020, dismissing the
application for benefits. The applicant filed a timely
petition for review.
Prior
to the hearing, the employer and insurer (collectively, the
respondent) conceded jurisdictional facts, an average weekly
wage of $858.64, and that the applicant sustained a right
proximal hamstring rupture. The respondent paid medical
expenses, temporary total disability benefits totaling
$15,360.21, and benefits of 5% permanent partial disability
rated at the right hip totaling $8,550.00. The issue is the
extent of the applicant's work-related injury. 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 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.
Memorandum
Opinion
The
applicant was born in 1951. After retiring from working in
the sheriffs department, he worked on his family farm and
also in construction as an owner and as an employee. While
working for the employer, he slipped and tore his right
hamstring, which ultimately required surgery to repair. The
applicant reached an end of healing, but approximately eight
months later he sought additional medical treatment for pain
and cramping in his leg. The applicant claims that he
sustained a 10% permanent partial disability at the hip as a
result of the work injury. The respondent argues that the
applicant sustained only a 5% permanent partial disability,
which it conceded and paid.
The
Applicant's Alleged Injury and Medical Treatment
The
applicant worked for the sheriffs department for 28 years and
retired in 2008. The applicant had also been working in the
construction field with his brother since 2004. He was hired
by the employer, Entech Builders, through Tradesmen
International for a couple of months and then became a
regular employee in May or June of 2016. On November 7, 2016,
the applicant was working for the employer as a rough
carpenter doing framing. He was working in the early morning
on a frosty, icy wood floor. While he was pushing some
plywood on the floor, his foot slipped back and bent "at
a very ugly angle," and he heard a sound like a rubber
band broke and he went down to the floor. He felt like the
back of his leg was on fire. He continued to work but with
great difficulty and pain.
3
The
applicant first treated with Dr. David Ross, M.D., on
November 15, 2016. Dr. Ross accurately described the
applicant's work injury. He recommended an MRI and put
the applicant on work restrictions. The MRI on November 29,
2016, showed a full-thickness revulsion of the proximal
hamstring. Dr. Ross recommended a surgical repair, which the
applicant had on December 27, 2016.
4 The applicant began physical
therapy in January of 2017.
5 Following the surgery, the
applicant continued to treat with follow up care with Dr.
Ross. On June 13, 2017, Dr. Ross noted, "At this point,
the patient is doing quite a bit better since when I last saw
him. The work hardening program seems to be working well for
him. I would recommend continued work hardening through the
rest of this week and then he can return to regular duty work
beginning next week."
6 Dr. Ross planned to see the applicant
in two months for a final check and to discuss an end of
healing.
On July
18, 2017, Dr. Ross found that the applicant had reached an
end of healing. He noted that the applicant completed work
hardening and was back to work at full-duty. The applicant
continued to have some pain and weakness, especially with
repetitive lifting. Dr. Ross noted:
He is working at a very highly demanding physical labor type
job doing construction work where he has to lift and carry
weight including sheets of plywood. He also is lifting and
carrying weight up and down a ladder on a daily basis. When
he does those activities repetitively, he has significant
pain [in] that right leg as well as a cramping sensation in
the hamstring in the posterior aspect. He has returned to
work full-duty now for the last month or so. He is concerned
about his ability to continue to work at this level of job
and does not feel as though he will be able to continue with
the amount of pain that he has at this point.[7]
On
exam, Dr. Ross noted a well-healed incision and that the
applicant had good hip extension and knee flexion strength
and his sensation was intact. He further noted:
At this
point, the patient is actually doing quite well from a
functional standpoint. The biggest problem is that his level
of work is more demanding than his body is capable of
performing at this time. After this repair, the tendon has
healed appropriately. Unfortunately, he has a hard time
getting his strength and endurance up to lift and carry heavy
weights, especially up and down a ladder and reach and twist
into awkward positions required by his job at this time. With
regards to this line of work, I do not know that he will be
able to continue full-duty. I would recommend restrictions
for his leg, which would essentially be permanent
restrictions at this point. We did discuss the fact that
permanent restrictions mean that they are in effect for his
job as well as his future employment should he have any
different employers in the future. He understands that. We
discussed restrictions today, and we are both comfortable
with him returning to a maximal weight lifting with a weight
limit of 50 pounds, he may only climb ladders or scaffolding
for 2 hours per day, when he is climbing ladders or
scaffolding, I do not want him lifting or carrying more than
25 pounds. We will see him back on an as-needed basis. At
this point, he has essentially reached his end of
healing.
8
After
his medical treatment, the employer refused to hire the
applicant back. The applicant did get work again through
Tradesmen and did finish carpentry with different
contractors. While he was working, he continued to have
cramping in his leg and he would have to get into a tub of
hot water and massage the inside tendon in his leg! he would
need to do this two or three times per week.
[9]
The
applicant submitted a WKOI6 form from Dr. Ross dated July 24,
2017.
10 Dr. Ross referred to his November 15,
2016, medical note to describe the injury, and he assessed a
10% permanent partial disability, stating, "See office
note that is dated 7-18-17 of R proximal hamstring
repair." He indicated that the applicant's prognosis
was good and that any further treatment would be to follow up
as needed, and he referred to attached work restrictions
dated July 18, 2017.
Approximately
eight months later, the applicant again treated with Dr. Ross
on March 30, 2018, for right hamstring pain and chronic
cramping. Dr. Ross explained that there may be multiple
causes for the hamstring cramping and numbness. He
recommended a new MRI and recommended the applicant try a
regimen of vitamin B complex or vitamin E capsules to
alleviate or decrease the cramping. The MRI on April 10,
2018, showed the hamstring repair was well healed. There was
some atrophy in the gluteus minimus muscle. There did not
appear to be encircling scar tissue or damage to the tendon
repair site...
