EVA L SOLORIO Applicant
v.
PROLITEC INC Employer AMERICAN
GUARANTEE & LIABILITY INS Insurer
No. 2012-027018
Wisconsin Workers Compensation
State of Wisconsin Labor And Industry Review Commission
February 21, 2019
Attorney Israel Ramon
Attorney Daniel M. Pedriana
WORKER’S COMPENSATION DECISION
[1]
Georgia E. Maxwell, Chairperson
Order
The
commission reverses the decision of the administrative law
judge issued in this matter on March 1, 2018. Accordingly,
the application is dismissed.
By the
Commission:
David
B. Falstad, Commissioner
Procedural
Posture
The
applicant originally sought compensation from Prolitec, Inc.
and American Guarantee Insurance (respondents) for a work
injury occurring on August 15, 2011. A limited compromise
addressing the injury was entered into by the parties and
approved by department order dated December 16, 2014. On
January 22, 2016, the applicant filed a hearing application
seeking additional compensation for temporary total
disability, medical expense, prospective surgery, and
undetermined permanent disability.
On
April 16, 2014, and September 20, 2017, hearings were held in
the matter before administrative law judges (ALJs) of the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation. On March 1,
2018, the ALJ who held the 2017 hearing issued a decision
granting the compensation claimed, including prospective
surgery. Respondents timely filed a petition for commission
review alleging error in the ALJ's decision. Briefs were
submitted.
The
commission has considered the petition and the positions of
the parties, and reviewed the evidence submitted to the ALJs.
Based on its review, the commission makes the following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is December 31, 1972, began her
employment with the employer as a temporary employee in
August of 2008. She became a regular employee on June 8,
2009. She initially worked on the production line, but in
March of 2011 was transferred to the stockroom, where she
pulled orders and moved stock. The employer manufactures
fragrances primarily for commercial use. In the stockroom the
applicant moved and shelved boxes, parts, and containers of
various sizes and weights, ranging from a few ounces to up to
50 pounds.[2] On occasion, she also used a type of
dolly to move heavy barrels containing liquid
fragrance.[3]
2. On
August 15, 2011, the applicant was assigned to "cycle
count" various parts, which involved pulling parts off
shelves, counting the parts, and then putting them back onto
the shelves. This included pulling some heavy boxes off the
shelves to count the parts in the boxes.[4] The applicant cycle
counted for approximately 6 hours before spending the rest of
the day taking parts out of boxes and stocking/shelving
them.[6] At one point she picked up a box of
clamps weighing approximately 50 pounds, rested it on top of
her right shoulder, and climbed the ladder to shelve the box.
After getting off the ladder from shelving this box she
experienced symptoms she described as, "...when I got
off, my back of my head started like pounding on my right
side." [7]
3. The
applicant continued stocking for another hour before going
home. She did not report this as an injury because she
thought the pain she experienced would go away.[8] However,
she indicated that even after taking Advil at home that
evening, her head still hurt and her shoulder was swollen.
The next day, August 16, 2011, she called in sick and made an
injury report over the telephone.[9] She indicated in testimony
that she started to feel shoulder pain the afternoon of
August 16, 2011.[10]
4. The
applicant went to work on August 17, 2011, and informed her
supervisor that she had a painful, swollen shoulder and a
stiff neck. [11] The supervisor sent her home, and
later telephoned her and told her to go to Concentra Medical
Center. The applicant saw Catherine C. McKesson, M.D., that
same day, August 17, 2011. Dr. McKesson noted complaints of
right neck and upper trapezius pain that began after lifting
boxes weighing 35-40 pounds at work on August 15,
2011.[12] Cervical spine x-rays were taken
that showed no fractures or other orthopedic abnormalities.
Dr. McKesson diagnosed a cervical strain, and prescribed
medication and physical therapy. The following day the
applicant was treated by a physical therapist, Greg Barta,
and he took a history of an injury to the right shoulder.
[13]
5. The
applicant was seen again by Dr. McKesson on August 19, 2011,
and she recorded that the applicant told her the neck pain
had resolved, but that she was continuing to experience right
shoulder pain. A right shoulder x-ray was performed and read
as showing no evidence of fracture or other bony abnormality.
Dr. McKesson diagnosed cervical strain, right upper trapezius
strain, and right AC (acromioclavicular) joint
strain.[14]
6. On
August 22, 2011, the applicant treated at Concentra with
Occupational Therapist Jeff Wieczorek, who recorded the
applicant as having stated that she was at that time pain
free. In testimony, the applicant responded to what O.T.
Wieczorek recorded by noting that she was taking medication
at that time. [15] O.T. Wieczorek concluded that the
applicant had met functional goals and was asymptomatic, but
that she was scheduled for follow-up with a physician on
August 26, 2011.[16]
7. The
applicant saw David L. Drury, M.D. at Concentra on August 26,
2011. Dr. Drury recorded that the applicant had been working
at her regular duties and that, "She feels her pattern
of symptoms is no better."[17] He noted her complaint
that her right shoulder symptoms had improved until she
returned to work. Dr. Drury diagnosed stable right shoulder
impingement, and stable right acromioclavicular bursitis. He
prescribed medication and referred the applicant to Sean C.
Tracy, M.D, an orthopedic surgeon at Concentra.
8. The
applicant first saw Dr. Tracy on September 1, 2011, at which
time she informed him that she was experiencing right
shoulder pain that kept her up at night and bothered her when
she performed activities away from her body overhead.
[18]
rays of her right shoulder were taken, and Dr. Tracy read
them as showing no fracture, dislocation, osteoarthritis, or
significant down sloping of her acromion. His examination of
her shoulder revealed no swelling, bruising, or atrophy. He
noted that she had no other complaints at that time. Dr.
Tracy diagnosed a right shoulder sprain and symptoms of
rotator cuff impingement. He injected the shoulder,
prescribed physical therapy, and assessed temporary physical
restrictions. The applicant continued to receive treatment
with P.T. Barta and O.T. Wieczork.
9. On
September 29, 2011, the applicant saw Dr. Tracy and indicated
that the shoulder injection he had given her had
"definitely worked," but that the other day she had
developed increased shoulder pain at work after...
