Koch, 040519 WIWC, 2016-026095

• Case Date: April 05, 2019
• Court: Wisconsin

Michael D. Koch Applicant Target Corp. (Stores) Employer Target Corp. (Stores) c/o Sedgwick Claims Mgmt. Services Insurer Claim No. 2016-026095 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission April 5, 2019           Atty. Daniel L. Zitzer           Atty. Jason R. Oldenburg           WORKER’S COMPENSATION DECISION1           David B. Falstad, Chairperson          ORDER          The commission modifies and affirms the decision of the administrative law judge. Accordingly, within thirty (30) days, the respondent shall pay:          1. To the applicant, as temporary partial disability benefits, the sum of nine hundred seventy-three dollars and thirty-six cents ($973.36); as reimbursement for out-of-pocket medical expenses, the sum of seven hundred dollars ($700.00); and as reimbursement for mileage, the sum of one thousand, fifty dollars and nineteen cents ($1,050.19).          2. To the applicant’s attorney, Jason R. Oldenburg, for attorney fees, the sum of three hundred forty-five dollars and thirty-four cents ($345.34); and, as reimbursement for costs, the sum of four hundred seven dollars and ninety-nine cents ($407.99).          3. For medical treatment expenses:

a. To Orthopedic Institute of Wisconsin, the sum of three thousand, five hundred forty-six dollars and twenty-three cents ($3,546.23);

b. To South Shore Family Chiropractic, the sum of four hundred sixty-eight dollars and seventy-eight cents ($468.78);

c. To ATI Physical Therapy, the sum of twelve thousand seven hundred sixty-four dollars and sixty-three cents ($12,764.63);

d. To The Surgery Center, the sum of seven hundred thirteen dollars ($713.00);

e. To MOSH, the sum of one thousand, four hundred fifty-nine dollars and twenty cents ($1,459.20);

f. To ERMed, S.C., the sum of four hundred three dollars ($403.00);

g. To Aurora Health Care Metro, the sum of eight hundred twenty-two dollars ($822.00);

h. To Vitality Health & Wellness, the sum of three thousand, three hundred twenty-five dollars ($3,325.00);

i. To Medical College of Wisconsin, the sum of seven hundred ten dollars ($710.00); and

j. To United Healthcare, the sum of ten thousand, three hundred forty dollars and one cent ($10,340.01).

         Respondents are liable for the applicant’s surgery and all of the reasonable and necessary medical expenses associated with it. Jurisdiction is reserved for such further findings and orders as may be necessary.          By the Commission:           Michael H. Gillick, 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 January of 2017, alleging that he had sustained a low back injury on February 25, 2016. An administrative law judge for the Department of Administration, Division of Hearings and Appeals, Office of Worker’s Compensation Hearings, held a hearing on April 10, 2018, and issued a decision on July 6, 2018, finding a compensable injury and awarding benefits. The employer and insurer (collectively, 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 modifies and 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, subject to the following:          Modifications          On page 3 of the decision, in the third full paragraph, replace “Dr. Robbins” with “Dr. Barron” wherever it occurs.          On page 4 of the decision, in the first full paragraph, replace “Respondents did no provide evidence of similar symptomology,” with “Respondents did not provide evidence of similar symptomology.”          Memorandum Opinion          The applicant, who was born in 1990, worked for the respondent for about a year and a half unloading products from truck trailers. He claims he sustained a traumatic injury to his low back on February 25, 2016, when he was unloading boxes of kitty litter from a truck and placing them on a pallet. The respondent denies a work injury.          The Applicant’s Alleged Injury          The applicant began working for the respondent in June of 2014.2 He worked as a flow logistics team member, and typically worked 4 a.m. to 8 a.m., five or six days per week, but his hours could vary.3 The applicant’s job was to unload truck trailers onto conveyor lines and separate them onto pallets before the pallets were taken to the sales floor to stock shelves.4 The applicant’s job involved a lot of lifting, lifting objects ranging from less than 10 pounds to approximately 100 pounds.5          Before February 25, 2016, the applicant had no work restrictions in place and he was able to perform his job duties with the respondent; he never had problems performing his activities of daily living; he never had any nerve pain that radiated into his butt or down his legs; he had never had an MRI or CT of his back; he never had any injections in his back; and he never had any kind of surgery to his spine or had even seen a spine surgeon.6 He also did not have worsening low back pain with bending and repetition prior to February 25, 2016,7 or heaviness in his right leg.8          Prior to the work incident, the applicant did have some chiropractic treatments, starting in December of 2015, when he treated for neck pain, as well as low and mid-back pain because his back was “feeling tight” from working the holiday season.9 The applicant was prompted to seek chiropractic treatment because of the lifting and unloading boxes that he was doing, which had increased during the holiday season.10 The applicant treated with the chiropractor until February 5, 2016, but he never had symptoms radiating into his butt or legs at that time.11 The applicant did not miss any work, and the chiropractic treatments helped to loosen up his tight back muscles and did provide relief.12 The applicant was not having any ongoing back pain after February 5, 2016, and he believed he was discharged from treatment as of that date.13          On February 25, 2016, at about 5:00 a.m., the applicant was unloading boxes off the conveyor line onto pallets.14 The conveyor was about waist high and he was unloading pet food and pet items.^[15] He was off-loading pails of cat litter that came in 2-pack boxes, or about 40 pounds, repetitively.16 He was twisting to move the boxes from the line onto the pallet,^[17] and was about half-way through the motion.18 Regarding the injury, the applicant explained:

Q. Okay. And was there one specific lift where you felt you injured your back?

A. About half way through I felt a pop and heard a pop in my back.

Q. And where did you feel pain with that lift, sir?

A. In my lower back.

Q. And what other symptoms, if any, did you feel?

JUDGE MCKENZIE: If you can recall.

THE WITNESS: I felt immediate pain in my low back and pain shooting down my legs.

Q. (By Mr. Oldenburg) One leg, both legs?

A. Mostly my right.

Q. And what did you do immediately after you felt these symptoms, sir?

A. I said something to my supervisor.

Q. And what did you say to your supervisor?

A. I told her something’s not right, if I – if I’m able to, I’ll be able to stay past 8:00 to help with anything that’s left over.

Q. Okay. Were you able to complete your work shift that day?

A. No.

Q. Did you leave early?

A. I left approximately 7:30 in the morning on that day.

Q. And when were you scheduled to leave?

A. I was scheduled to leave at, I believe, 12:30 that day.

Q. Now, were the symptoms that you felt in your back on February 25^[th] different than the symptoms that prompted you to seek chiropractic care on December 30^th, 2015?

A. Yes.

Q. How were they different, sir?

A. It felt like something was wrong with my spine itself.19

         The applicant made an appointment to see his chiropractor the...