Timothy J. Rothe Applicant
Con-Way Freight, Inc. Employer
Ace American Ins. Co. Insurer
No. 2017-003735
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
June 28, 2019
Atty.
Thomas M. Domer
Atty.
Nick G. Kotsonis
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, the respondent shall pay:
1. To the applicant, the sum of three thousand, two hundred
ninety-two dollars and sixty-six cents ($3,292.66) as
reimbursement for out-of-pocket expenses.
2. To Association for Neurological Surgery, the sum of one
thousand, nine hundred fifty-six dollars and thirty-three
cents ($1,956.33).
3. To Aurora Healthcare in collection with Americollect, the
sum of seventy-five dollars and fifty cents ($75.50).
4. To CDI, the sum of one hundred thirteen dollars and
sixty-nine cents ($113.69).
5. To IWP, the sum of three thousand, thirty-six dollars and
seventy-six cents ($3,036.76).
6. To Infinity Healthcare in collection with Americollect,
the sum of one thousand, three hundred three dollars and
sixty-one cents ($1,303.61).
7. To Wheaton Franciscan Medical Group, the sum of one
hundred twenty dollars ($120.00).
8. To Travelers, as reimbursement, the sum of four thousand,
one hundred sixty-five dollars and thirty-six cents
($4,165.36).
9. To Benefit Recovery Group (CIGNA), as reimbursement, the
sum of one hundred fifty-eight thousand, eight hundred
seventeen dollars and forty-four cents ($158,817.44).
10. To AARP, as reimbursement, the sum of two hundred
seventy-four dollars and twenty-five cents ($274.25).
The
matter will be remanded to the department for calculation of
the accrued and unaccrued compensation due to the applicant,
together with attorney fees and costs.
These
calculations shall take into account an updated review of
Social Security Disability Income payments, pursuant to Wis.
Stat. § 102.44(5).
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
This
case is before the commission to consider the applicant's
entitlement to worker's compensation benefits. The
applicant filed a hearing application in September of 2014
alleging a back injury. The employer and its insurer
(collectively, the respondent) conceded jurisdictional facts
and an average weekly wage of $1,244.55. An administrative
law judge for the Department of Administration, Division of
Hearings and Appeals, Office of Worker's Compensation
Hearings, heard the matter on March 21, 2018, and issued a
decision on May 8, 2018, finding that the applicant sustained
an occupational low back injury in the course of his
employment, and that he was permanently totally disabled. 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
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 1957, worked as a truck
driver/dock worker for the employer for 25 years. He was
responsible for loading, unloading, and transporting freight;
driving; dock operations; and hostling. He frequently lifted
up to 50 pounds and occasionally lifted more; and his job
required him to bend, twist, stoop and lift boxes and bags
weighing up to 100 pounds. The applicant claimed that his
25-year work place exposure as a truck driver/dock worker was
at least a material contributory causative factor in the
progression of his degenerative disc disease at L3-4 and
L4-5, which resulted in the need for his staged
posterior/anterior L3-L5 fusion surgery performed on February
25 and 27, 2015, by his neurosurgeon, Dr. James Lloyd, M.D.
The applicant did not recover well from the surgery and is
currently on Social Security Disability Insurance.
The
issues are whether the applicant sustained an occupational
low back injury arising out of his employment, the nature and
extent of the applicant's disability, and liability for
medical expenses. The applicant has the burden of proving
beyond a legitimate doubt all the facts necessary to
establish a claim for compensation.
3 The commission must deny compensation if
it has a legitimate doubt regarding the facts necessary to
establish a claim, but not every doubt is automatically
legitimate or sufficient to deny compensation.
4 Legitimate doubt must arise from
contradictions and inconsistencies in the evidence, not
simply from intuition.
[5] In considering an
award for loss of earning capacity, the commission considers
the factors set out in Wis. Admin. Code § DWD
80.34(1).
6
The
commission finds that the applicant performed very physically
demanding work for the respondent, and performed significant
amounts of lifting, twisting, turning, stooping, bending,
climbing, and reaching on a daily basis over the course of
his 25-year employment with the respondent. The commission
credits Dr. Lloyd that the applicant's appreciable period
of workplace exposure was at least a material contributory
causative factor in the progression of his degenerative
lumbar condition that resulted in his need for surgery. The
commission next turns to the extent of the applicant's
disability.
The
Applicant's Physical Condition
At the
time of the hearing, the applicant indicated that the back
surgery had eased his back pain a little bit, but increased
his leg pain; he has radiating pain down to his right
foot.
7 That symptom has progressed since
2015.
8 He gets a couple of hours of
uninterrupted sleep on most nights, which requires him to nap
during the day.
[9]When he gets up in
the morning, he is in a lot of pain and moves around to try
to loosen up and find a comfortable position.
10 He takes Percocet every 4 hours that can
make him drowsy, Gabapentin for pain three times per day that
makes him very tired and groggy, and Trazodone to help him
sleep.
11 His pain affects his
ability to concentrate.
12
For
life activities, the applicant indicated that he very rarely
cooks; for cleaning, he helps pick up blankets or a pillow;
on rare occasions he helps with laundry by carrying up the
basket.
13 Generally, he watches
television; he has no hobbies or sports.
14 If he stands or sits for over 30
minutes, he has excruciating pain in his lower back and
legs.
15 He walks his dogs around
a city block, but stops to rest.
16 He walks with a cane daily because he
fell over a couple of times and it gives him
support.
17 He has to concentrate on
walking so he does not trip, but he has not been diagnosed
with a drop foot.
[18] He drives
sparingly because he does not have the control he used to
have in his right leg and foot for accelerating and
braking.
19When asked about the
possibility of driving for Uber or Lyft, he indicated that he
would not be able to drive for an extended time because it
would hurt, and his leg does not function right when he is
braking and he would not want to run into
somebody.
20
The
applicant had a Functional Capacity Evaluation (FCE) on
January 12, 2016, with a report issued on January 25, 2016.
The report notes that the evaluation lasted 2 hours, but it
notes that the applicant's unsafe high blood pressure
when lifting even 10 pounds posed a high health risk to lift
testing or physical exertion testing. According to the FCE,
the applicant has the following restrictions:
The results indicate that due to his unsafe blood pressure
when lifting 10# and inability to tolerate prolonged sitting,
Mr. Rothe would be unable to tolerate even a Sedentary
Physical Demand Level for an 8 hour day according to the
Dictionary of Occupational Titles U.S. Department of Labor,
1991. He should have the following restrictions: Due to
unsafe Blood Pressure: No lifting, pushing, pulling, or
climbing. Due to lumbar & left/right lower
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