SCOTT GABRON Applicant
GLEASON ROLL OFF & RECYCLING Employer
AMCO INS CO Insurer
No. 2017-019052
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
January 12, 2021
Attorney Brendan J. McEntegart
Attorney David G. Ress
WORKER'S
COMPENSATION DECISION1
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 April 23, 2020. Within 30 days from this date, Gleason
Roll Off & Recycling and Amco Insurance Company
(respondents) shall pay to the applicant compensation for
temporary total disability in the amount of Thirteen Thousand
Nine Hundred Twenty-Three dollars and Sixty-Three cents
($13,923.63); and to applicant's attorney, Brendan K.
McEntegart, fees in the amount of Three Thousand Four Hundred
Eighty dollars and Ninety-one cents
($3,480.91).2
Respondents
are also liable for the applicant's reasonable and
necessary medical expenses attributable to the work injury of
June 15, 2017, through the date of March 1, 2018; and in
addition, respondents are liable for the treatment the
applicant received from Dr. Hardik A. Vashi, through May 18,
2018. The amounts of the compensable medical expenses are not
detailed in the record, and therefore this order is
interlocutory to allow the parties to resolve the issue of
what amounts are due. If mutual agreement cannot be reached,
opportunity for additional hearing to resolve the issue of
medical expense, consistent with the commission's
findings, shall be given.
Jurisdiction
is reserved solely with respect to the issue of medical
expenses as detailed above.
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
On
January 2, 2019, the applicant filed a hearing application
alleging that he sustained a low back injury while performing
services growing out of and in the course of his employment
with the employer, Gleason Roll Off & Recycling.
Respondents disputed the claim, and on October 17, 2019, and
February 3, 2020, an ALJ of the Department of Administration,
Division of Hearings and Appeal, Office of Worker's
Compensation Hearings held hearings in the matter. On April
23, 2020, the ALJ issued a decision finding a compensable low
back injury and awarding compensation. Respondents timely
filed a petition for commission review alleging error in the
ALJ's decision.
The
commission has reviewed the evidence of record, and
considered the positions of the parties as set forth in their
respective briefs to the commission. Based on its review and
analysis, the commission makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is September, 1979, was employed
as a concrete truck driver for about seven years by Gleason
Redi-Mix, which is owned by Matt Gleason's father. Matt
Gleason owns Gleason Roll Off & Recycling, the employer
in this case. The applicant started working for the employer
"a month or two"3 prior to the work incident that
took place on June 15, 2017. His job there involved operating
a truck that picked up full dumpsters and unloaded them at
the dump. His truck was equipped with a tarp that was rolled
up in an apparatus connected to the back of the truck cab.
The tarp pulled out over the top of the dumpsters, much like
one would pull out a projector screen. The purpose of the
tarp was to prevent the dumpster's contents from flying
out during transit. The applicant would manually unroll the
tarp by pulling on a rope connected to it, and by continuing
to pull as the tarp rolled out over the top of the dumpster.
The tarp, absent the apparatus in which it was contained,
weighed 20-25 pounds.
2. On
June 15, 2017, the applicant climbed up and into a full
dumpster and began pulling the tarp over the top of it. The
tarp apparatus was designed with the intent that the worker
would pull the rope from the ground, while walking alongside
the dumpster. However, the applicant indicated that when he
tried to pull the rope from the ground the tarps were likely
to tear, so he normally got into the dumpster and pulled as
he walked backwards through the refuse. On the day of the
incident, he was walking backwards and pulling the tarp with
the rope wound around his hand, so that it wouldn't slip.
He stepped into an area of refuse that gave
way.4 One of his legs fell into this soft
spot, and that is when he sustained his low back injury.
3. On
cross-examination, there was a good deal of back and forth
between the applicant and respondents' attorney with
respect to which of the applicant's legs fell into the
hole and which one was left on top of the refuse (see Tr.2,
pp. 27-33). The applicant's testimony was not consistent
with respect to which leg went into the refuse. Respondents
argue that the incident never happened, and that the
applicant's inconsistent statements about which leg was
down and which one was up proves the incident never took
place. However, after a full review of both hearing
transcripts, the commission concluded that while the
applicant had a poor memory with respect to which leg sunk
into the refuse, his testimony that the work incident
occurred is credible.
4. When
the applicant came back to the shop on the day of the
incident, he told Amber Gleason, the employer's
secretary, what had happened to him. However, all she said
was, "Oh boy."5 No injury report was filed. On a
subsequent day the applicant told Gleason about his
doctor's appointment that was scheduled for June 27,
2017.6 Gleason did not recall the applicant
telling her about the incident, or about the doctor's
appointment.7 Based upon her testimony, respondents
reiterate their assertion that the work incident never
occurred. The ALJ and the commission found the
applicant's recollection of what he said to Gleason
concerning the incident to be credible.
5. The
applicant's back pain persisted after the work incident,
but he first tried icing it, hoping it would resolve on its
own. Accordingly, he did not...
