Jadin, 022119 WIWC, 2016-024363

Docket Nº:2016-024363
Case Date:February 21, 2019
No. 2016-024363
Wisconsin Workers Compensation
State of Wisconsin Labor And Industry Review Commission
February 21, 2019
          Attorney David J. McCormick           Attorney Paul R. Riegel           WORKER’S COMPENSATION DECISION [1]           Georgia E. Maxwell, Chairperson          Order          The commission reverses the decision of the administrative law judge issued in this matter on February 6, 2018. Accordingly, the application is dismissed.          By the Commission:           David B. Falstad, Commissioner          Procedural Posture          On September 8, 2016, the applicant filed a hearing application claiming compensation for a back injury alleged to have arisen out of and in the course of his employment with Ward Manufacturing, LLC on or about September 1, 2014. Ward Manufacturing and Acuity Insurance Company (respondents) submitted an answer to the application that denied a work-related injury occurred. On August 16, 2017, an administrative law judge (ALJ) from the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings, held a hearing in the matter. On February 6, 2018, the ALJ issued a decision finding that the work injury occurred as alleged, and awarding compensation to the applicant as set forth in that decision. Respondents submitted a timely petition for commission review alleging error in the ALJ's decision.          The commission has considered the petition and the positions of the parties, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:          Findings of Fact and Conclusions of Law          1. The applicant, whose birthdate is October 9, 1974, worked for the employer as temporary help for approximately four months before being hired as a permanent, fulltime employee on or about April 27, 2014. He worked as a material handler, which involved manually loading metal baskets containing steel pipe fittings onto conveyors. The conveyors then ran the baskets through a wash tank. The applicant removed the baskets off the conveyor after they came through the wash tank and stacked them, normally three-baskets high. The baskets contained various sizes of pipes, and the basket weights varied from approximately 10 lbs. to over 50 lbs. The mean weight of the baskets the applicant lifted was approximately 30 lbs. He also lifted these baskets to place them on and take them off pallets.          2. The applicant recalled his date of injury as having been on or about September 1, 2014, but that could not be the actual date, because the plant was closed that day for the Labor Day holiday. However, the applicant credibly testified that on or about that date, he informed the individual who was the plant manager at that time, Bob Benson, that he had injured his back when lifting and turning with a basket.[2] Matt Hirst, who was the employer's maintenance lead worker until being promoted to plant manager in January of 2015, recalled in testimony that the applicant informed him sometime in the fall of 2014 that he had hurt his back.[3] Accordingly, there was no notice violation, and well prior to the hearing date the employer had been made aware of the nature of the claim.          3. On the day of the work incident, the applicant was lifting a heavy basket onto the conveyor, and as he turned in the act of lifting he felt a sharp pain in the center of his back that, "...froze me for a short time."[4] When he told Benson about the injury Benson made no response, but when he told Hirst, Hirst told him to take a couple Advil and sit down for a while.5 No injury report was filed, and the applicant continued to work because he, "...didn't know what else to do at the time."6 He did not have health insurance.          4. The applicant continued to perform his regular material handler's duties, but asserted that his thoracic back pain dating from this work incident never went away, and that it eventually "increased and radiated into my neck region...and into my – both arms."[7] He attended a safety meeting in the month of October of 2014, and asked the individual leading the meeting to have the employer obtain a lift device to assist with loading the heavier baskets. A lift was promised, but the employer never provided one during the applicant's period of employment. The applicant continued to perform his work duties until his last day of work on or about March 18, 2016.8          5. On February 12, 2016, the applicant...

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