WILLIAM D FARR Applicant
WISCONSIN ALUMINUM FOUNDRY CO INC Employer
TWIN CITY FIRE INS CO Insurer
No. 2016-011915
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
September 5, 2019
Attorney Mark V. Sewall
Attorney Gary S. Stanislawski
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 5, 2018.
Within
21 days from this date the applicant and his attorney shall
provide Wisconsin Aluminum Foundry Company, Inc. and Twin
City Fire Insurance Company (respondents) an accounting of
all reasonable and necessary medical expense/reimbursement
claims attributable to applicant's treatment for his
compensable right shoulder injury of February 15, 2016, as
well as an accounting of those attorney expenses that are
attributable to the applicant's recovery for said
shoulder injury.
Within
30 days from such submissions, respondents shall pay to the
applicant disability compensation in the amount of Seven
Thousand Six Hundred Three dollars and Fifty-Six cents
($7,603.56), minus the attorney expenses
attributable to recovery for the applicant's right
shoulder injury; and to applicant's attorney, Mark V.
Sewall, fees in the amount of One Thousand Nine Hundred
dollars and Eighty-Nine cents ($1,900.89), plus the
attorney expenses attributable to recovery for the
applicant's right shoulder injury.2
In
addition, within 30 days from applicant's submission to
respondents of the medical expense/reimbursement accounting,
respondents shall pay/reimburse all reasonable and necessary
medical expenses attributable to the applicant's
compensable right shoulder injury. Respondents are entitled
to dispute the applicant's accounting of which medical
expenses are attributable to his compensable right shoulder
injury, as opposed to those attributable to his
non-compensable cervical spine injury.
Within
30 days from today's date, respondents shall reimburse
Hartford Life and Accident Insurance Company for group
insurance benefits Hartford paid to the applicant for the
periods from August 5, 2016, through August 14, 2016, and
from January 27, 2017, through May 21, 2017, in the amount of
Five Thousand Four Hundred Seventy-Six dollars and Sixty-Six
cents ($5,476.66).3
Jurisdiction
is reserved solely with respect to any dispute that
may arise concerning the reasonableness and/or necessity of
medical expense amounts attributable to the applicant's
compensable right shoulder injury, as opposed to medical
expense amounts attributable to his non-compensable cervical
spine injury claim.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
On
February 22, 2018, the applicant submitted a hearing
application claiming injuries to his right shoulder and
cervical spine arising out of an incident occurring while he
was in the course of his employment with the employer on
February 15, 2016. A hearing was held before an ALJ of the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation Hearings on
September 13, 2018. On December 5, 2018, the ALJ issued a
decision dismissing both of the applicant's injury
claims. The applicant timely submitted a petition for
commission review.
The
commission has reviewed the evidence submitted at the hearing
before the ALJ and considered the petition and the positions
of the parties. Based on its review, the commission makes the
following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is July 22, 1970, began working
for the foundry employer in 1992. He performed different
duties over the years but primarily worked with aluminum
castings. On June 15, 2016, he was lifting aluminum castings
one at a time from a waist-high basket, and then carrying
them 4 or 5 feet to a conveyor belt situated at a level
"a little higher than waist level."[4]The castings
weighed approximately 70 pounds apiece, and the applicant had
to "take a step or two"5 in order to reach the
conveyer belt. On February 15, 2016, he reached into a basket
to pick up a casting, but as he attempted to lift it the
casting became entangled with other castings. He credibly
testified, "I felt something pop and burn in my
shoulder."6 He told his supervisor about the
incident when the supervisor visited the work area 10 or 15
minutes later. The supervisor told him to keep working and he
did despite experiencing continuing symptoms.[7]
2. The
applicant iced the shoulder overnight and this temporarily
helped reduce the inflammation. His supervisor provided him
with lighter duty beginning the following day. In addition to
shoulder and neck pain the applicant complained of headaches
and numbness in his right middle, ring, and little fingers.
On February 17, 2016, he kept an appointment with his family
physician, David E. Augustine, M.D., which had been
previously scheduled for unrelated medical concerns. He told
Dr. Augustine about his shoulder problem and Dr. Augustine
recorded the applicant's description of the work
incident, including that it had resulted in, "a tear and
burning sensation in the right shoulder."[8] Dr. Augustine
preliminarily diagnosed a right shoulder strain. There is
also mention in the clinic note of numbness in the right
fingers, but no mention of a neck injury. Dr. Augustine's
exam did include the notation: "Decreased ROM of his
neck. Shooting pain in the right shoulder with
movement."9 He released the applicant to sedentary
duty which the employer accommodated.
3. The
applicant followed up with Dr. Augustine on February 24,
2016, complaining of continuing, acute right shoulder pain.
Dr. Augustine specifically recorded "shooting pain in
the right shoulder with movement," and again noted right
finger numbness and decreased range of motion in the
neck.10 Dr. Augustine also noted tenderness
and spasm in the right trapezius and rendered diagnoses of
right biceps tendonitis and right shoulder strain. He noted
that he had reviewed and updated the applicant's past
medical history but did not set forth a detailed recounting
of that history. Dr. Augustine kept the applicant on light
duty and referred him to an orthopedist, Ryan M. Dopirak,
M.D., for a right shoulder consultation.
4. Dr.
Dopirak first saw the applicant on March 14, 2016. He took a
history of immediate onset of right shoulder pain in the work
incident of February 15, 2016, and he noted continuing
shoulder pain as well as right finger numbness. Dr. Dopirak
did not mention specific neck pain complaints other than
noting: "Pain radiates from the neck to the
hand."11 His initial impressions were right
shoulder pain and weakness that was concerning...
