Lela M. Still Applicant
Durham D & M, LLC Employer
Fidelity & Guaranty Ins. Underwriters c/o Sedgwick Claims Mgmt. Services Insurer
No. 2005-035877
Wisconsin Workers Compensation
State of Wisconsin Labor And Industry Review Commission
February 21, 2019
Atty.
Ronald G. Tays
Atty.
Robert P. Ochowicz
WORKER’S COMPENSATION DECISION
1
Georgia E. Maxwell, Chairperson
Order
The
commission affirms the decision of the administrative law
judge. Accordingly, the application for benefits is
dismissed.
By the
Commission:
David
B. Falstad, 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 August
of 2016 alleging that she injured her cervical spine and low
back as a result of a work injury occurring on September 28,
2005. The employer and its insurer (collectively, the
respondent) conceded jurisdictional facts and a maximum
average weekly wage of $560.00. An administrative law judge
for the Department of Administration, Division of Hearings
and Appeals, Office of Worker’s Compensation Hearings,
heard the matter regarding the applicant’s claim for a
cervical spine injury on April 4, 2018, and issued a decision
on June 15, 2018, dismissing the application. The applicant
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
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
issue in this case is whether the applicant sustained an
injury to her cervical spine by accident arising out of and
incidental to her employment on September 28, 2005. The
applicant has the burden of proving beyond a legitimate doubt
all the facts necessary to establish a claim for
compensation.
2 Compensation must be denied if a
legitimate doubt exists regarding the facts necessary to
establish a claim, but not every doubt is automatically
legitimate or sufficient to deny compensation.
[3] Legitimate
doubt must arise from contradictions and inconsistencies in
the evidence, not simply from intuition.
4
The
Applicant’s Injury and Medical Treatment
The
applicant, who was born in 1950, worked as a school bus
driver for the employer for about 22 years. Prior to the work
incident at issue in this case, in 2002, the applicant was
involved in a motor vehicle accident in
Mississippi.
5 She treated in Wisconsin for neck and
back pain with her doctor, Dr. Thomas Foley, M.D., and
treated with two sessions of physical therapy.
[6] Dr. Foley
referred her to Dr. Jayaprakash for treatment and long-term
care regarding any disability she might have. There were no
treatment records in evidence regarding the applicant’s
neck or back until a week before the work incident when she
treated for bronchitis and low back pain on September 20,
2005.
7
On
September 28, 2005, the applicant was driving an empty school
bus and as she approached a stop, a car pulled out and ran
into the bus, striking it on the left rear side of the
bus.
8 She described the impact:
When the bus hit – When the car hit the bus, I saw it
coming out, and I went to attempt to switch lanes, but there
was a column on the right-hand side of me and I
couldn’t. But as the bus hit, the force of it made the
bus go like it was going sideways like, and I thought
I’d hit the post, but I was able to get it stopped
before I hit the post.9
According
to the applicant, after the car hit the bus, she put the bus
in park and called in to report the incident.
[10] Her left
hand swelled up within about five minutes and some people
came out of a tavern and brought her ice to put on her
hand.
11 Someone from the employer took the
applicant to Concentra for medical treatment.
[12] At
Concentra, Dr. James A. Laurino, M.D., examined the
applicant. He noted that she reported that she hurt her left
hand and that she denied any other medical problems or
injuries.
13 He assessed a metacarpal fracture,
wrapped her left hand, gave her pain relievers, told her to
ice it, and referred her to follow up with orthopedics.
The
applicant was in a great deal of pain and went to the
emergency room later that night. The emergency room doctor
focused on the applicant’s left hand. The intake notes
indicate the applicant was involved in a motor vehicle
accident earlier in the day and was seen at the Aurora clinic
for left-hand pain; her left hand pain had increased, and the
notes indicate "pt also c/o (L) sided neck
pain."
14 Regarding the applicant’s
neck, the doctor noted it was supple and nontender in the
midline, and that there was "some very mild left lateral
trapezial tenderness."
15 The doctor placed the...
