ROSS R TESSMER Applicant
MENZIES AVIATION Employer
XL SPECIALTY INSURANCE COMPANY Insurer
No. 2018-026321
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
October 19, 2020
Attorney Dennis H. Wicht
Attorney Gary S. Stanislawski
WORKER’S
COMPENSATION DECISION1
Order
The
commission reverses the decision of the administrative law
judge (ALJ) issued in this matter on April 1, 2020.
Accordingly, the application is dismissed.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
NOTE:
Commission Chairman Michael H. Gillick did not participate in
the review of this case or in the commission's decision.
Procedural
Posture
On
February 6, 2019, the applicant filed a hearing application
claiming that on November 28, 2018, he sustained a low back
injury arising out of and in the course of his employment
with the employer. Menzies Aviation and XL Specialty
Insurance Company (respondents) disputed the applicant's
claim, and on November 11, 2019, an ALJ of the Department of
Administration, Division of Hearings and Appeals, Office of
Worker's Compensation Hearings held a hearing in the
matter. On April 1, 2020, the ALJ issued a decision finding
that the applicant sustained a compensable low back injury as
claimed, ordered payment of compensation, and made his
decision interlocutory with respect to unresolved issues.
Respondents submitted a timely petition for commission review
alleging error in the ALJ's decision.
The
commission has considered the petition and the positions of
the parties, and reviewed the evidence submitted to the ALJ.
Based on its review and analysis, the commission makes the
following:
Findings
of Fact and Conclusions of Law
1. The
applicant, whose birthdate is September 21, 1992, was 26
years old when the work incident in question occurred on
November 28, 2018. On or about November 1, 2018, he had begun
working as a fueling supervisor for the employer, an aviation
service business. His duties involved supervision of fueling
services that the employer provided for Frontier and other
airlines. This included physical duties as well as performing
audits and other paperwork.
2. On
Tuesday, November 27, 2018, the applicant was working his
normal second shift for the employer when he slipped on some
ice at the airport. However, he was able to regain his
balance before he fell. He experienced back discomfort when
he slipped but finished his shift. He reported the incident
to the employer.
3. The
applicant saw his primary physician, Joseph A. Nicholas,
M.D., at 3:19 p.m. the next day, November 28,
2018.2 Dr. Nicholas' clinic note recorded the
applicant's description of, "…slipping on the
ice while walking outside while working at the airport. He
states he did not fall down, but when he tried to regain his
balance he felt a twinge in his low back. This is persisting
through the day today, and he is concerned about further
exacerbating his back injury given his
history."3 Dr. Nicholas gave the applicant a
prescription and assessed work restrictions for one week.
4.
After seeing Dr. Nicholas, the applicant reported to work for
the second shift. Upon arriving, the employer informed him
that because he had reported a work incident the previous
day, he was being assigned to perform only dispatch and audit
duties. Shortly before the end of his shift that
evening,4 he went outside the employer's hangar
to perform end-of-the-night fuel audits on fuel trucks. After
walking about 10 feet, he slipped on ice that was covered
with newly-fallen snow and fell flat on his
back.5 He indicated that at the time he fell he
"heard a cracking pop noise" and experienced a
sharp pain in his lower back.6 He was able to get up off the
ground and finish his audits before returning to the
employer's hangar. At that point he sent an email to his
supervisor reporting the incident.7
5. When
the applicant reported to work the next day, Thursday,
November 29, 2018, the employer informed him that due to his
injury the previous day, he was not allowed to work that
day.8
He was not allowed to work the following day (Friday) either.
He was not scheduled to work on Saturday, December 1, 2018,
and on that day, he stayed at home except for participating
in a video game tournament. When asked at the hearing how he
felt that Saturday he replied: "Fine. I mean nothing
that was too out of the ordinary."[9] However, he also
testified that towards Saturday night and into Sunday
morning, "…the swelling started getting really
bad in my back."10
6. On
Sunday morning, December 2, 2018, the applicant went to the
emergency room at Wheaton Franciscan Hospital in Franklin
with complaints of low back pain and right radicular pain
that had worsened since the work incident of November 28,
2018.11 It was noted that he had a history of
chronic radicular pain, but that he was experiencing more
right leg pain than normal. After being given "a
gallon" of water he was able to urinate, but there was
suspicion of urinary retention. A lumbar MRI was performed
that same day, December 2, 2018, and it was read as showing
prominent intervertebral disc disease at T11-T12, L3-L4.
L4-L5, and L5-S1. A disc herniation was seen at L3-L4, and
disc protrusions at L4-L5 and L5-S1.12 The applicant was
referred to St. Francis Hospital in...