Tessmer, 101920 WIWC, 2018-026321

Case DateOctober 19, 2020
CourtWisconsin
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...

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