Scott Sibilski Applicant
Cleveland Marble Co. Employer
Zurich Ins. Co. Insurer
No. 2017-010879
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
March 11, 2019
Atty.
Charles F. Domer
Atty.
Stanley J. Lowe
WORKER’S COMPENSATION DECISION
1
GEORGIA E. MAXELL, CHAIRPERSON
Order
The
commission reverses the decision of the
administrative law judge. Accordingly, the application for
benefits is dismissed.
By the
Commission:
David
B. Falstad, Commissioner
Procedural
Posture
In May
of 2017, the applicant filed a hearing application seeking
compensation for an occupational injury to his back with a
date of injury of January 18, 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 February 6, 2018, and issued a
decision on April 16, 2018, allowing benefits. The employer
and its insurer (collectively, the respondent) filed a timely
petition for review.
Prior
to the hearing, the respondent conceded jurisdictional facts
and an average weekly wage of $1,183.20. At issue is whether
the applicant sustained a work-related occupational injury,
and if so, the nature and extent of any 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 reverses the decision of
the administrative law judge and makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, who was born in 1974, worked as a mason for
approximately 17 years doing stone masonry, marble, tile, and
tile setting.[2] After an L4-5 microdiscectomy in 2008, he
switched over to doing tile.[3] In 2016, he was hired through
a union hall to work as a tile setter for the respondent on a
job in Milwaukee. He worked on the job approximately three
months before he alleges he sustained a work-related
occupational back injury.
2. The
applicant has pre-existing back problems and an extensive
medical treatment history. An MRI of the applicant’s
lumbar spine in 2008 indicated a normal L2-3, but a disc
bulge at L3-4.[4] The applicant reported chronic low back
pain over 2011 and 2012.[5] On August 3, 2012, the progress
notes of Dr. Amar Ambardekar, D.O., noted that the applicant
reported that his right low back hurts in the bottom and
right thigh and down the legs; the applicant was still doing
the tile work and he was getting progressively worse.[6] The
applicant received Percocet for pain. A medical note dated
April 2, 2012, identified the applicant’s lower right
back as the pain location; a medical noted dated May 10,
2014, identified the applicant’s lower left back as the
pain location.[7] In 2013, Dr. Ambardekar noted that the
applicant had violated his pain agreement by getting Percocet
and tramadol from other doctors and thought the applicant had
an addiction to oxycodone.
3. The
applicant treated for chronic severe low back pain with Dr.
Ambardekar in 2014.[8] Dr. Ambardekar noted that the
applicant had also been dismissed from another pain
management clinic because he did not bring his pills in for a
count.[9] Though Dr. Ambardekar was concerned about the
applicant’s opioid use, he continued to prescribe
tramadol and fentanyl patches. The applicant had chiropractic
care and felt better except for continual numbness in his
leg.[10] An MRI of the applicant’s lumbar spine done in
2014 showed a large left paracentral L4-5 disc herniation
with recurrent free fragment. The doctor discussed a revision
microdiscectomy, but the applicant decided to maximize
chiropractic care and try an epidural injection.[11] The MRI
also showed a "new small right paracentral disc
protrusion," "new mild central canal
stenosis," and "new mild right foraminal
stenosis" at L2-3. 12 A medical note from December 8,
2014, notes that the applicant has a history of chronic low
back pain going back to 2001.[13]
4. A
medical note on April 14, 2015, indicated, "Since the
last exam here, he has received 3 additional prescriptions
from tramadol from Dr. Spencer, Dr. McFarland, and Dr. Hale.
His narcotic pain contract will be terminated today and he
will no longer be a candidate for narcotic medications from
this clinic. 14 On April 28, 2015, Dr. Ambardekar
noted that the applicant continued to misuse opiates and that
he was a very high risk for abuse; he told the applicant that
he would not fill a prescription for fentanyl patches and the
applicant should try nonopioid methods of pain control.[15]
An MRI dated June 8, 2015, also noted moderately advanced
multilevel degenerative disc and facet disease throughout the
applicant’s thoracic spine. 16
5. The
applicant was hired by the respondent in early October of
2016 as a marble setter/finisher for a job on the
Northwestern Mutual tower in downtown Milwaukee.[17] The
applicant admitted that he lied on his job application
18 for the respondent: he lied when he
denied any prior back injuries or chronic ailments, that he
had treated with a physician in the past three years, and
that he had ever received worker’s compensation
benefits in the past.[19] The applicant lied to get the job
20
6. The
applicant worked 10 hours per day, four days per week, and
his main job was preparing and installing marble wall
panels.[21] The panels were 5’ x 18" and about
¾" thick. [22] The panels were in crates
and the applicant "normally" and
"ordinarily" lifted them out with help from a
partner.[23] About 20% of the panels had to be cut, which was
a "two-man process. 24 The panels were lifted
onto a hydraulic scaffold called a scissor lift to lift the
panels to where they needed to be attached to the wall.
25 To affix the panels on the wall
required two people to align and protect the stone.
26 The applicant estimated that he did
approximately 14 to 35 panels per day and that he had to get
on and off the scissor lift approximately 30 to 75 times per
day.[27]
7. The
applicant prepared a job description of his work duties...
