CLYMANESTRIA CLAY Applicant
AURORA HEALTH CARE INC Employer
SENTRY CASUALTY CO Insurer
No. 2011-007536
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
September 5, 2019
Attorney Robert C. Menard.
Attorney Roland C. Cafaro.
WORKER’S COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission affirms in part and reverses in part the decision
of the administrative law judge (ALJ) issued in this matter
on December 20, 2018. The commission affirms that portion of
the ALJ's decision that found a compensable right
shoulder injury resulting in a period of temporary total
disability, and twenty percent permanent partial disability
at the shoulder. The commission reverses that portion of the
ALJ's decision that found an additional five percent
permanent partial disability at the shoulder, as well as that
portion of the ALJ's decision that found a compensable
psychological injury.
The
applicant became eligibile for Social Security Disability
Insurance benefits effective with the date of March 7, 2011.
That fact, the fact that Sentry Casualty Company has
previously paid the applicant substantial amounts of
compensation, and the fact that the commission's decision
changes the amounts of compensation due the applicant,
together require that the matter be remanded to the
Department for an updated calculation of the exact dollar
amounts due the applicant and due her attorney in accordance
with the commission's findings.
The
commission's decision also results in respondents'
liability for all medical expense/reimbursement amounts
reasonably required by the effects of the applicant's
right shoulder injury, and dismissal of all medical
expense/reimbursement claims that are attributable to the
applicant's psychological injury claim. Accordingly,
within 21 days from this date, the applicant and her attorney
shall provide Aurora Health Care, Inc. and Sentry Casualty
Company (respondents) with a new WKC-3, including supporting
documentation, itemizing those medical expense/reimbursement
claims reasonably required by her right shoulder injury.
Within 30 days from receipt of the new WKC-3, respondents
shall pay the medical expense/reimbursement claims as
itemized, unless respondents shall have a valid dispute over
the reasonableness or necessity of such claims, in which case
jurisdiction remains for resolution of such dispute.
Jurisdiction
is also reserved with respect to the amount of attorney fees
and/or expenses, if any, due applicant's attorney in
accordance with the commission's findings. In all other
respects the commission's decision is final.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
On
April 14, 2015, the applicant filed a hearing application
claiming a compensable right shoulder injury arising out of
and in the course of her employment with the employer on
October 11, 2010. On February 13, 2017, the applicant filed
an amended application that additionally claimed a
compensable psychological injury causally related to the
effects of the right shoulder injury previously claimed. A
hearing was held before an ALJ of the Department of
Administration, Division of Hearings and Appeals, Office of
Worker's Compensation Hearings on January 24, 2018. On
December 20, 2018, the ALJ issued a decision awarding
compensation for both claimed injuries. Respondents timely
submitted a petition for commission review alleging error in
the ALJ's decision.
The
commission has reviewed the evidence submitted at the hearing
before the ALJ and considered the petition and the positions
of the parties. Based upon its review and analysis, and after
consultation with the ALJ regarding the credibility and
demeanor of the applicant's hearing testimony, the
commission makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is March 17, 1968, began working
for the employer in February 2010 as a patient transporter.
On October 11, 2010, she and three co-workers together
attempted to lift a 350-400 lb. female patient from her bed
to a cart. Two of the workers were positioned at the
patient's feet and two were positioned at either side of
her head/shoulder area. The applicant was positioned at the
patient's left shoulder area and the cart was on the left
side of the bed. The four workers together lifted the woman
by lifting the four corners of a sheet that was placed
underneath her. They were in the process of sliding the
sheet/patient onto the cart when the "combative"
patient grabbed the applicant's right arm and would not
let go. The applicant yelled in response, and as the patient
was sliding down in the applicant's direction, she and
the other three workers responded by lifting/pulling the
patient back onto the bed. However, before they regained
control of the woman the applicant was required to support
most of the woman's weight. The applicant credibly
testified:
"And I was down to the floor holding her up. She is
coming down, towards on me, and the nurse had to literally
pry her hand off of me...By that time I'm already
down...She's coming down on me, and I'm steady
telling them I can't hold her any longer with the
twin-size sheet. So, if they wouldn't of hurried up and
reacted, she would have came down on me." (Transcript p.
14).
2. The
incident resulted in the applicant experiencing immediate
right shoulder pain, and she immediately reported to the
employer's occupational health nurse. The nurse gave her
Tylenol, had her rest for about 20 minutes, and then sent her
back to finish her shift with lighter duty pushing patients
in wheelchairs. The applicant found that even pushing
wheelchairs was difficult because of her shoulder pain, but
she finished the shift. She completed an Employee Incident
Report that same day and described the injury as
"Shoulder." There is no mention in the report of
her neck or neck pain. The next day she went back to full
duty, but her shoulder still hurt.
3. On
October 15, 2011, four days after the work incident, the
applicant was involved in a motor vehicle accident (MVA) in
which her Ford Explorer was "T-boned" by a
Chevrolet Lumina driven by a driver who ran a red light. The
applicant was wearing her seatbelt, but the Lumina was
traveling between 25-40 m.p.h. and the impact caused her
Explorer to roll over. The applicant sustained bumps and
bruises, but her primary injury involved a head contusion.
She was taken to the emergency room in an ambulance and a
head CT scan was done with normal results. The attending
physician recorded applicant's complaints as including
back pain, right hip pain, and right-sided facial pain. She
denied neck pain, and nothing is noted regarding shoulder
pain.
2 She was released to follow up with her
regular physician, Dr. Jose O. Toledo, M.D.
4. Dr.
Toledo saw the applicant on October 18, and again on 19,
2010.
3 On the former date he took a history of
the MVA and indicated that applicant was...
