Amanda Henrichs Applicant
Werner Enterprises, Inc. Employer
Ace American Ins. Co. Insurer
No. 2016-027971
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
September 19, 2019
Atty.
Garett T. Pankratz
Atty.
Linda D. Kiemele
WORKER’S COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission reverses the decision of the administrative law
judge. The matter is remanded to the Division for calculation
of the amounts of benefits now due the applicant and his
attorney, consistent with this order, and taking into account
the application of the Social Security reverse offset
pursuant to Wis. Stat. § 102.44(5). Accordingly, within
thirty (30) days from the date of this order, the respondent
shall pay for medical treatment expenses, to the following:
1. MCHS-Hospital, the sum of one thousand, five hundred
thirty-eight dollars and ninety-one cents ($1,538.91);
2. Mayo Home Health, the sum of forty-seven dollars and
thirty-four cents ($47.34);
3. Medicare, the sum of thirty-three thousand, nine hundred
seventy-one dollars and thirty-eight cents ($33,971.38);
4. Medicaid, the sum of eight thousand, two hundred ninety
dollars and sixty-six cents ($8,290.66).
Payments
for any other medical treatment expenses may be adjusted upon
verification that payment, write-off, or other proper
reduction has occurred.
Jurisdiction
is reserved for such further findings and orders as may be
necessary consistent with this order.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
In
November of 2016, the applicant filed a hearing application
seeking compensation for a back injury, with a date of injury
of September 16, 2013. An administrative law judge for the
Department of Administration, Division of Hearings and
Appeals, Office of Worker’s Compensation Hearings,
heard the matter on September 19, 2018, and issued a decision
dated December 10, 2018, dismissing the application for
benefits. The applicant filed a timely petition for review.
Prior
to the hearing, the respondent conceded jurisdictional facts
and an average weekly wage of $806.50. The respondent paid
temporary total disability benefits from September 19, 2013,
to August 15, 2015, in the amount of $24,253.47, that the
respondent alleges was paid by mistake of fact; the
respondent has waived reimbursement of these payments if
liability is not found. The applicant seeks additional
temporary total disability benefits from August 16, 2015, to
July 6, 2017, and 10% permanent partial disability to the
body as a whole. The issues are whether the applicant
sustained a work-related back injury, and, if so, the nature
and extent of the applicant’s disability, and the
respondent’s liability for medical expenses. The
commission has considered the petition and the positions of
the parties, and has independently reviewed the evidence.
Based on its review, the commission reverses the decision of
the administrative law judge, and makes the following:
Findings
of Fact and Conclusions of Law
1.
Prior to the work incident, the applicant had a long history
of psychiatric issues, including schizophrenia, bipolar
disorder, depression, and anxiety.
2However, before she worked
for the employer, she had no low back pain out of the
ordinary and she had never missed work because of it or went
to a doctor for it.
3
2. The
applicant began working for the employer in January of 2012,
and initially worked out of West Memphis, Arkansas, for about
a week.
4 She was then assigned to drive anywhere in
the lower 48 states, which involved driving from 2,500 to
6,000 miles.
5 She did this work for a couple of
months.
6 She was then assigned to haul loads for
Walmart out of Tomah, Wisconsin, and she moved to Tomah from
Texas.
7 While driving for Walmart, the applicant
delivered groceries in Wisconsin, North Dakota, South Dakota,
Minnesota, Iowa, Michigan, and Illinois.
[8] The applicant
loved her job, and prior to the work incident, she was able
to perform her work activities without low back
pain.
9
3. When
the applicant would get ready to haul a load, she would
“pre-trip” the tractor and trailer, which
involved checking fluids, climbing to check the belts,
putting fluids in, checking lug nuts on the tires, and
checking hoses. It also involved hooking up to a trailer, and
checking the landing gear, getting underneath with a
flashlight and making sure the fifth wheel was locked. She
also checked to make sure the registration was good, as well
as checked reflective stickers and lights.
[10] This
pre-tripping process would take 15 to 20 minutes, and would
require squatting and crouch walking.
[11]
4. On
September 16, 2013, the applicant started work at about 11:00
p.m. and hauled a trailer from Tomah to
Milwaukee.
12 This was a “no touch” load
which meant she did not have to lift anything.
[13] She arrived
at the Milwaukee Sam’s Club at about 2 or 2:30 a.m. and
described what happened:
Okay. We were unloading the truck. There’s a forklift
driver. He comes in and he picks up the pallet, and sometimes
a box will fall off. Well, I picked up a box that had fallen.
We do this every day. It’s nothing new. But the floor
had iced over from defrosting on the way to the store, so
when the reefer [refrigerator] kicked back on, all that water
created ice, which happens every day. Whatever. Well, this
particular day I go down to get the – pick up this box.
I remember it was spinach leaves. It didn’t – it
didn’t weigh anything. Well, my left leg slipped out,
and so I dropped the box, and I twisted to catch the wall so
I wouldn’t fall. And then I steadied myself, and I was
like, you know, stupid ice or whatever.
And
then I went back down to pick up the box, and that’s
when I felt the back pain. And I – I took the box and I
threw it up there, and I told the forklift driver, If
anything else falls, you got to do it, I can’t do it,
and I walked out of the trailer. And then he would just pull
the pallet out so I could pull my sticker, and then
he’d go instead of me – usually I’m in my
trailer pulling the sticker, making sure they’re taking
the right pallet.
14
5. The
applicant dropped the box when she slipped, and then twisted
to catch herself on the wall; once she steadied herself, she
went back down to pick up the box and was in the process of
doing that when she felt pain.
15 The applicant was not sure if
the forklift driver saw the accident, but she stated that he
did ask if she was okay.
16 The applicant felt the pain in her
lower back on her left side.
17 She rated the pain as a 6 or 7
out of 10.
18 She did not have leg pain at the time,
but in the next couple of days her leg started
hurting.
19
6.
After the incident in the trailer, the applicant stood
outside the trailer until the forklift driver removed the
last pallets. Then she put the bulkhead doors down and sealed
up the trailer. She had the forklift driver sign the
paperwork and then she drove the truck. She called her
girlfriend at the time, and complained about how her back
hurt and asked her to pick her up when she returned to the
distribution center.
20 The applicant did a “drop and
hook” delivery after the incident to Cargill that was
“real easy,” and then she headed back to
Tomah.
21
7. The
applicant did not report the injury to her employer
immediately because she just wanted to go home.
[22] On the way
back to Tomah, she indicated her pain was a 5 or 6 out of 10,
and by the time she got back it was about a 7 or
8.
23 According to the applicant, she did
report the injury the next day to the night dispatcher named
Jay who told her that she needed to see a doctor before she
could return to work.
24 Her injury occurred early on Tuesday
morning, and she reported it to Jay late on Tuesday night, so
this report was actually made on the same day as the
incident.
25 On Wednesday morning, the applicant
called the Mayo Clinic and got an appointment for Friday
morning, September 20, 2013, which was the soonest she could
get in.
26 She did not go to the emergency room
because she did not feel it was an emergency: “I
thought I had to call my doctor to be released back to
work.”
27 When the applicant treated on September
20, she was feeling pins and needles all down her leg and in
her foot.
28
8. On
September 20, 2013, Dr. Rodney A. Erickson, M.D., examined
the applicant. He noted that: “Amanda is in with check
on back strain. She hurt her...
