Kathy M. Kempinski Applicant
Hoffmaster Group, Inc. Employer
Sentry Insurance, A Mutual Co. Insurer
Nos. 2016-014022, 2017-005939
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
December 14, 2018
Atty.
Samuel J. Bomier
Atty.
James E. Panther
WORKER’S COMPENSATION DECISION
1
Georgia E. Maxwell, Chairperson.
Interlocutory
Order
The
commission affirms the decision of the
administrative law judge. Accordingly, within thirty (30)
days of the date of this order, the respondent shall pay:
1. To the applicant, as compensation, the sum of ten
thousand, three hundred ninety-eight dollars and twenty-four
cents ($10,398.24); and, as reimbursement for out-of-pocket
medical expenses, the sum of seven hundred fifty dollars and
sixty-four cents ($750.64).
2. To the applicant's attorney, Samuel J. Bomier, as
fees, the sum of two thousand, six hundred eighty-three
dollars and seventy-five cents ($2,683.75); and, for costs,
three hundred thirty-six dollars and seventy-seven cents
($336.77).
3. For the applicant’s medical treatment expenses: to
Dickinson County Healthcare, the sum of two hundred
fifty-five dollars and eighty-cents ($255.80); to Bellin
Health, the sum of four hundred sixty-nine dollars ($469.00);
to BayCare Clinic, the sum of three hundred forty-two dollars
($342.00); to Ameritox, the sum of one thousand, one hundred
eighty dollars ($1,180.00); and to Badger Care, the sum of
five hundred sixteen dollars and seventy-five cents
($516.75).
4. The reasonable costs associated with the C5-7 fusion
procedure recommended by Dr. Harrison, together with any
related consultations, tests, and medical expenses, provided
the applicant undertakes the surgery in a timely manner.
Jurisdiction
is reserved with respect to any unpaid and future medical
treatment expense reasonably required by the work injury; and
with respect to the possibility of additional temporary or
permanent disability that is demonstrated to have been
sustained as a result of the work injury.
By the
Commission:
Laurie
R. McCallum, Commissioner, David B. Falstad, Commissioner.
Procedural
Posture
This
case is before the commission to consider the
applicant’s entitlement to worker’s compensation
benefits. The applicant filed a hearing application in
February of 2017, alleging an injury to her left shoulder and
neck. The employer and its insurer (collectively, the
respondent) conceded jurisdictional facts and an average
weekly wage of $509.57. An administrative law judge for the
Department of Administration, Division of Hearings and
Appeals, Office of Worker’s Compensation Hearings,
heard the matter on July 26, 2017, and issued a decision on
December 18, 2018, finding that the applicant sustained an
occupational neck injury, and awarding benefits and a
prospective order for a cervical discectomy and fusion. The
respondent filed a timely petition for commission review.
The
commission has considered the petition and the positions of
the parties and has independently reviewed the evidence
submitted at the hearing. Based on its review, the commission
affirms the decision of the administrative law judge.
Findings
of Fact and Conclusions of Law
The
commission makes the same findings of fact and conclusions of
law as stated in the decision of the administrative law judge
and incorporates them by reference into the
commission’s decision.
Memorandum
Opinion
The
applicant, who was born in 1968, worked as a general laborer
for the employer for about eighteen months. In February of
2015, she injured her left shoulder and neck when she was
pulling two heavy gaylords at a time (huge boxes with
rejected product that weighed more than 100 pounds) using
hand jacks.
2 She treated for the injuries and did
physical therapy; she did not miss any work and ultimately
returned to work with no restrictions.
3 The respondent
conceded this injury. In February of 2016 the applicant
started a new position packing boxes of napkins and after
about a week of doing the new duties she experienced the
onset of pain in her left shoulder and neck similar to the
symptoms she had had the previous year. The applicant
contends that she sustained an occupational injury to her
cervical spine arising out of her employment. The respondent
disputes that the applicant sustained an injury to her
cervical spine on either a traumatic or occupational basis.
The
Applicant's Injury and Treatment
According
to the applicant, prior to the injury in 2015 she had not had
any left shoulder or neck problems.
4 She began to work for the
employer through a temporary agency about a year before the
employer hired her as a permanent employee.
[5] In February
of 2015, the applicant was pulling on two gaylords that
weighed about 100 pounds each
6 and injured her left
shoulder and neck area.
7 She treated for her injury and
returned to work with no restrictions.
8 The applicant
testified that after she returned to work in 2015, she
occasionally had times with pain in her left shoulder and
left neck, but she treated it
herself.
9
In late
February of 2016, the applicant was working as a napkin
assistant or helper on a new machine to put packages of
napkins into boxes. Three people usually worked on the
machine at one time. She would have to get packages off the
line and put them in boxes. Someone else was supposed to take
the boxes and stack them up, but if that person had other
obligations, the applicant would take the boxes down;
according to the applicant, when filled, the boxes weighed
approximately 40 pounds.
10
The
applicant did the job for about a week and a half but felt
pain after about the third day.
11 She indicated that
towards the end of the week she was picking up the boxes more
often than the other person that was helping her
out.
12 She indicated that at the beginning
she only had to lift the boxes occasionally, but there were a
lot of times she had to move the boxes after they were full
because the other person was not there.
13 The applicant
thought that lifting the boxes up when they were full and
twisting to stack them was what had caused her
injury.
14 She indicated that she was lifting
the boxes repetitively, but not constantly.
[15] The
applicant is 5 feet tall and had to reach about three feet in
front of her when she was lifting the boxes.
[16] The boxes
would be filled about every 15 minutes, so she would be
lifting a box every 15 minutes.
17 When she did not have
help, she would lift the boxes all day long.
[18]
The
employer’s safety manager testified that the job that
the employer ran on February 26 was for dinner
napkins.
19 There is some inconsistency in how
big the boxes were and how much they weighed. The safety
manager indicated that the shop order for that day required a
case 13 inches tall by 24 inches wide that weighed about 40
to 43 pounds.
20 However, the safety manager did not
check for any orders other than the specific day the
applicant reported the injury.
21 She had seen the...
