Roger Punzel, Applicant,
Dave Jones, Inc., Employer,
Travelers Indemnity Co. of CT Insurer
No. 2018-004634
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
September 5, 2019
Atty.
James A. Meier.
Atty.
Amy W. Siech.
WORKER’S COMPENSATION
DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission 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 four thousand, five hundred
eighty-four dollars and eighty cents ($4,584.80) in temporary
total disability benefits; and the sum of four hundred
seventy-nine dollars and eight cents ($479.08) as
reimbursement for medical expenses.
2. To
the applicant’s attorney, James Meier, the sum of one
thousand, one hundred fifty-three dollars and twenty cents
($1,153.20) in attorney fees; and the sum of twenty-eight
dollars ($28.00) for costs.
3. For
medical treatment expenses, to the following:
a.
Mercy Health System Hospital, the sum of one thousand, nine
hundred forty-eight dollars and seventy-three cents
($1,948.73).
b.
Mercy Health System-Clinic, the sum of five hundred
seventy-one dollars and eighty-six cents ($571.86) in unpaid
medical expenses.
c.
Mercy Health System-Clinic, the sum of two thousand, two
hundred ninety-eight dollars and two cents ($2,298.02) as
reimbursement for medical expenses.
Jurisdiction
is reserved for such further findings and orders as may be
necessary consistent with this order.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
In
February of 2018, the applicant filed a hearing application
seeking compensation for a right leg injury, with a date of
injury of August 16, 2017. 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 18, 2018, and issued a decision
dated November 27, 2018, finding an occupational right knee
injury and awarding benefits. The respondent filed a timely
petition for review.
Prior
to the hearing, the respondent conceded jurisdictional facts
and an average weekly wage of $1,523.00. The issues are
whether the applicant sustained an occupational right knee
injury, and, if so, the nature and extent of the
applicant’s disability, and the respondent’s
liability for medical expenses. The commission has considered
the petition and the positions of the parties, and has
independently reviewed the evidence. Based on its review, the
commission affirms the decision of the administrative law
judge.
Findings
of Fact and Conclusions of Law
As
supplemented by the commission’s memorandum
opinion,
2 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 1973, worked for the employer as a
journeyman crew leader on new and remodel residential
construction, installing water piping, dishwashers, water
softeners, and bathtubs. The applicant has worked in the
plumbing field since 1994, and has worked for the employer
since 2013. The work for the employer was physically
demanding and involved frequent standing, walking, climbing,
kneeling, crouching, stooping, crawling, bending, twisting,
and performing repetitive motions. He also regularly had to
carry up to 100 pounds and walk on uneven surfaces. The
applicant alleges that his work activities caused an
occupational injury to his right knee. The respondent alleges
that the developing progressive changes in the
applicant’s knee represent a natural history of an
anterior cruciate ligament (ACL) deficient knee and are
related to his body mechanics or a traumatic knee injury in
2013 (for which a different insurance carrier would be
liable).
The
Applicant’s Work Duties
The
applicant has been in the plumbing field since
1994.
3 He began his employment with the
employer on June 10, 2013.
4 He started as journeyman crew
leader in residential and new construction and worked in that
area for about 2½ years.
5 In this job he installed
plumbing in new houses, including water piping and
installation of dish washers, water softeners, and hot water
heaters.
6 He was on ladders constantly and
worked in tight closets and crawl spaces where he would be
crouching down or walking on all fours.
7 When he was on
ladders, he was always using his leg for balance and
support.
8 In a typical day, he indicated that he
spent about two to three hours kneeling, squatting, or
crouching on concrete, plywood, or OSB boards.
[9] The applicant
also indicated that he had to lift and carry bags of
concrete, five gallon buckets full of concrete, and bags of
gravel, as well as cast iron tubs or whirlpool tubs, and cast
iron pipes.
10 When he was carrying these things,
he would bump his knees constantly.
11
In
2015, the applicant moved to the employer’s service and
remodel department, which he indicated was more physically
demanding and put more stress on his right
knee.
12 This involved renovating, working in
cramped spaces and with cast iron pipes, as well as breaking
up concrete.
13 Sometimes the applicant would kneel
on both knees, but sometimes he would kneel only on his right
knee.
14 He indicated that he spent more time
kneeling and crouching in the service and remodel division,
and estimated that he spent two to three hours per day
kneeling, squatting, or crouching.
15 He also spent about
four or five hours going up and down ladders.
[16] He also
indicated that he would carry heavy items over uneven
ground.
17 The applicant indicated that he had
been doing these types of work activities in the plumbing
field since 1994.
18 The employer’s safety director
acknowledged that the applicant’s description of his
work duties was accurate.
19
Exhibit
E is a job description for the master/journeyman
plumber–remodel. It lists the physical demands for that
job as including constant standing, walking (on flat and
uneven surfaces), climbing, balancing, kneeling, crouching or
crawling; frequent bending and working at floor level; and
working in tight places. Exhibit F is a job description for
the journeyman plumber. That description lists the physical
demands of the work as including regular walking, standing,
climbing, balancing; kneeling, crouching, stooping, or
crawling; bending or twisting; and performing repetitive
movements. It involved occasional sitting or working in
cramped spaces and awkward positions; and the employee must
regularly lift and/or move up to 100 pounds. The applicant
agreed that these job descriptions described his work
duties.
20
The
Applicant’s Injury and Medical Treatment
According
to the applicant, when he started working for the employer in
2013, his knee was “normal, good.”
[21] He was
not experiencing any symptoms or problems in his knee and he
was not using a brace.
22 He first noticed pain and
instability in his right knee on certain grounds and ladders
that continued gradually over time.
23 In October of
2013, he was walking down a stairwell to install plumbing
underground and the stair broke; he dropped down to the
ground and “ended up in a heap in the
basement.”
24 He continued working and was able to
continue all of the physical demands of his
job.
25
On
December 30, 2013, the applicant first treated for his right
knee with Dr. Michael E. Angeline, M.D. Dr. Angeline
described the history of the condition:
The patient is a 40-year-old male plumber who presents today
on referral by Dr. Maldonado for an evaluation with regards
to his right knee. He sustained a work related injury in
September or October while he was working in a new house. He
was going down the last step in a basement. The steps were
not finished as there was no concrete, it was just the tread.
He broke the step and had a non-contact pivoting injury as he
came down. He noted immediate pain and swelling within the
right knee. He has been able to
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