ROBERT J JADIN Applicant
WARD MFG LLC Employer
ACUITY INSURANCE CO Insurer
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...