Nawrocke v. Jamar Co., 090519 WIWC, 2017-002569

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

James R. Nawrocke, Applicant, Jamar Co., Employer, Ace American Ins. Co., Insurer No. 2017-002569 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission September 5, 2019           Atty. David J. McCormick.           Atty. Kurt R. Anderson.           WORKER’S COMPENSATION DECISION1           Michael H. Gillick, Chairperson.          Interlocutory Order The commission modifies (rewrites) and affirms the decision of the administrative law judge. Accordingly, within thirty (30) days from the date of this order, the respondent shall pay:          1. To the applicant, the sum of ninety-five thousand, four hundred seven dollars and seventy-six cents ($95,407.76) for temporary total and permanent partial disability benefits; the sum of one thousand, six hundred fifty-eight dollars and ninety-nine cents ($1,658.99) for reimbursement for out-of-pocket medical expenses; and the sum of six thousand, one hundred twenty-one dollars and twelve cents ($6,121.12) for medical mileage reimbursement.          2. To the applicant’s attorney, David J. McCormick, the sum of twenty-three thousand, eight hundred fifty-one dollars and ninety-four cents ($23,851.94) for attorney fees; and the sum of two thousand, three hundred eighty-eight dollars and ninety-one cents ($2,388.91) for costs.          3. For medical treatment expenses, to the following:

a. WI Pipe Trades, the sum of three thousand, twelve dollars and seven cents ($3,012.07).

b. Divine Savior Healthcare, Inc., the sum of two hundred thirty dollars and eleven cents ($230.11).

c. Portage Radiology, S.C., the sum of five hundred ninety dollars and twenty-nine cents ($590.29).

d. Garnet and Carbonell DPM, the sum of ninety-five dollars and eight cents ($95.08).

e. Todd C. Alea, M.D., the sum of one hundred eighty-eight dollars and forty-five cents ($188.45).

f. Radiology Assoc. of South Florida, the sum of ninety-six dollars and thirty-eight cents ($96.38).

g. Aurora Healthcare, the sum of two hundred seven dollars and no cents ($207.00).

         Payment to the applicant has been adjusted for respondent’s payment of $15,997.80 over the period of September 6, 2013, to January 10, 2014. The respondent may also adjust the payment to the applicant for amounts already received by the applicant, including but not limited to, where applicable, short-term disability, long-term disability, or Social Security offset. Payments for 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. The commission makes no decision as to the work-relatedness or the reasonableness and necessity of any future surgery.          By the Commission:           David B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.          Procedural Posture          In January of 2017, the applicant filed a hearing application seeking compensation for a left foot and ankle injury occurring on August 22, 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 June 13, 2018, and issued a decision dated November 19, 2018, finding a compensable work injury and awarding temporary total disability and permanent partial disability benefits, and ordering the respondent to pay medical expenses, including for future treatment. The employer and insurer (collectively, the respondent) filed a timely petition for review.          Prior to the hearing, the respondent conceded jurisdictional facts and the maximum average weekly wage. The issues are whether the applicant sustained a compensable injury arising out of and occurring while performing services growing out of and incidental to his employment, and if so, the extent of any disability.          The commission has considered the petition and the positions of the parties, and has independently reviewed the evidence. Based on its review, the commission modifies (rewrites) and affirms the decision of the administrative law judge.          Findings of Fact and Conclusions of Law          1. Prior to the work incident, the applicant did not have any work restrictions in place for his left foot or ankle, he did not have any problems with his left foot or ankle, and his left foot and ankle did not limit his ability to perform any of his job duties.2 He had been in a wheelchair for a couple of years previously because of his reflex sympathetic dystrophy that affected the bottoms of his feet.3 As of August 22, 2013, however, this did not limit or affect his ability to carry out his job duties.4          2. On August 22, 2013, the applicant was working on a We Energies project near Portage, Wisconsin.5 The applicant worked as a rigger with big cranes, however, his testimony about exactly what he did was somewhat hard to follow. He would make a plan to lift a “pick,” or a piece of equipment, pipe, or materials to be moved, in order “to get them picked right and safely and get them up to wherever they have to be located to be bolted up, put on pipe racks.”6 He would then talk with the crane operator by radio to get the material picked and maneuvered to wherever it needed to go.7          3. The foreman told the applicant to make a pick and get a pallet moved in an area that had steel hangers on it; he was told to have a little patience because the forklift operator did not have experience on the equipment like the regular handler did.8 The applicant told the operator what she needed to do and then he walked out to the skid and instructed her to come and pick it up.9 The operator could not get the forklift lined up with the skid or pallet on her first two tries, and the applicant had to direct her how to do it. The applicant then put his left foot on the skid or pallet and directed her where to go.10 The blades of the forklift went into the dirt and came up under the pallet.11 When the operator did this, she hit his left foot from his toes to the area of the instep of his left foot.12 He described the incident:

Q. (By Mr. McCormick) When you say “right here,” you’re talking about the area from your toes down to your instep of your left foot?

A. Yes. And she pushed the board into my foot. At the time I didn’t, you know, I thought something hurt, it hurt really bad. So I tried to get my foot off the skid, and meanwhile I had stopped her, and I couldn’t get my foot off. So I reached down and I broke the board off because I couldn’t get my foot off; and I sat down on the steel and the board was about this long.

Q. You say about this long?

A. Yeah.

Q. Your hands about 2 feet, 2 and half foot?

A. About a foot and a half. About a foot and a half. And pulled I out, and I say son of a bitch, you know, I already seen the blood and the nail, and it went right in here. Now I got safety toes on, I got steel boots. I got a layer that’s got a metal plate on the bottom of my feet so if I stepped on a nail or a screw, it ain’t going through.13

         4. The applicant pulled the board off of his boot and this pulled the nail out of his foot.14 The applicant was taken to the medical area where the respondent’s safety manager, Julie Cole-Pete, cleaned the wound and put a band-aid on it.15 The applicant’s and Ms. Cole-Pete’s versions of what happened differ.          5. According to the applicant, after he saw Ms. Cole-Pete, he returned to work and worked for about an hour; he called the regular telehandler and had him move the material.16 The applicant then went home.17 The next day his foot was sore, and he could barely get his boot on because his ankle was swollen.18 He went to work and told Ms. Cole-Pete that he could hardly walk and she put him on light duty; he was in the office where he could keep his foot elevated.19          6. On August 28, 2013, Ms. Cole-Pete took the applicant to the Dean Clinic; according to the applicant, Ms. Cole-Pete did all the talking and “was in total control of the investigation.”20 Ms. Cole-Pete was present when Dr. Kastenberg examined him. The applicant was seen at 9:45 a.m. at the Dean Clinic Portage. Nurse Karen Pieper, LPN, noted at 10:09 a.m. that the applicant “Reports he stepped on a nail with left foot 8/22/13; says it bled for quite a while; here with Safety Manager from the Power Plant who reports she washed the wound with iodine, applied antiseptic and antibiotic to area. Wound is closed; patient...