MEGAN COSTIGAN Applicant
v.
SPEEDWAY SUPERAMERICA LLC Employer
OLD REPUBLIC INSURANCE COMPANY Insurer
No. 2016-011618
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
July 26, 2019
Attorney Patrick D. Kern
Attorney Cynthia K. Thurston
WORKER’S COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission reverses the decision of the
administrative law judge (ALJ) issued in this matter on
August 30, 2018.
The
application is dismissed, with the exception of
applicant's claim for medical expenses incurred between
the dates of May 2, 2016, and May 29, 2016. Within 45 days
from this date, the applicant shall submit to Old Republic
Insurance Company and Speedway SuperAmerica, LLC
(respondents) a documented summary of medical expenses
incurred between those dates, attributable to her cervical
strain injury. Within 30 days from such submission,
respondents shall either pay/reimburse the expenses
submitted, or request additional hearing limited solely to
this medical expense issue. If no submission from the
applicant is forthcoming within the above 45-day period, the
matter shall become final.
In all
other respects this decision is final.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
On July
14, 2017, the applicant filed a hearing application alleging
compensable, work-related injuries sustained in a motor
vehicle accident that occurred on April 29, 2016. On February
8, 2018, a hearing was held before an ALJ of the Department
of Administration, Division of Hearings and Appeals, Office
of Worker's Compensation Hearings. On August 30, 2018,
the ALJ issued a decision finding a compensable injury and
awarding compensation that included medical expense. Speedway
SuperAmerica LLC and Old Republic Insurance Company
(respondents) submitted a timely petition for commission
review alleging error in the ALJ's decision.
In
reviewing the evidence submitted to the ALJ at the hearing
held on February 8, 2018, the commission considered the
petition and the positions of the parties. Based on its
review and analysis of the evidence, the commission makes the
following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is May 13, 1997, was employed as a
manager for a Speedway convenience store. A work incident
occurred on April 29, 2016, when she was driving a Honda
Accord to transport goods for the employer. She had come to a
complete stop while waiting to make a U-turn due to a road
closure, when the driver of a pick-up truck hit her from
behind. As she felt the impact she braced herself by putting
both hands on the dashboard.2 The pick-up was traveling at a low
rate of speed, and she was able to drive her Accord to work
after the accident.[3] She was
wearing a lap/shoulder seatbelt.4 As a result of the impact she
experienced low back, neck, and arm soreness, and eventually
a headache.5 She telephoned her
co-manager to inform that individual of the accident, and
then drove to work where she completed her shift before
clocking out and going home. She was experiencing soreness
but believed she could recover without medical care.
2. The
applicant worked the following two days but continued to
experience soreness, so she sought treatment at an urgent
care facility on May 2, 2016. There she was seen by Andrew
Makowski, M.D., and Physician's Assistant Daniel
Neis.6 X-rays were taken of her
cervical and lumbar spine, and a head CT scan was also done.
All of these were negative. She was next seen at Aurora
Health Care on May 5, 2016, and Physician's Assistant
Christopher R. Mayer recorded complaints that included right
shoulder pain, but his primary diagnosis was right trapezius
muscle strain.7
3. On
May 10, 2016, the applicant began treatment with Damian C.
Kosempa, M.D., who recorded a complaint of right shoulder
pain since the motor vehicle accident. Dr. Kosempa's
clinic note records: "No problems with the shoulder in
the past." Beginning on May 18, 2016, the applicant also
received...
