Topp v. Frank Bros., Inc., 021821 WIWC, 2016-019066

• Case Date: February 18, 2021
• Court: Wisconsin

Mark Topp Applicant v. Frank Bros., Inc. Employer Sentry Ins., A Mut. Co. Insurer Claim No. 2016-019066 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission February 18, 2021          Worker’s Compensation Decision and Remand Order^[1]           Michael H. Gillick, Chairperson.          Interlocutory Order          The commission modifies and affirms in part, reverses in part, and remands in part the decision of the administrative law judge. Accordingly, within thirty (30) days from the date of this order, the respondent shall pay:

1. To the applicant, the sum of thirty-five thousand, four hundred fifty-one dollars and seventy-five cents ($35,451. 75) for permanent partial disability benefits due. Beginning March 19, 2021, the respondent shall pay the applicant one thousand, four hundred eighty-two dollars and no cents ($1,482. 00) per month until the remaining balance of fifty-five thousand, six hundred thirty-two dollars and no cents ($55,632. 00) has been paid in full.

2. To the applicant’s attorney, the sum of twenty-one thousand, seven hundred seventy-two dollars and ninety-four cents ($21,772. 94) for attorney fees, and one thousand, one hundred nineteen dollars and forty-five cents ($1,119. 45) for costs.

         The administrative law judge found that the respondent had fully paid the temporary disability benefits due and had fully paid the applicant’s medical expenses, and neither party disputed this on appeal to the commission. As a result, those matters are not addressed in this order.          The issue of the applicant’s loss of earning capacity remains open. The matter is remanded for the applicant to seek services from the Division of Vocational Rehabilitation (DVR) to determine if services are appropriate and to follow through on any recommendations. Following his application for services with the DVR, the parties may seek a further hearing and decision on the issue of the applicant’s loss of earning capacity by submitting updated vocational reports based on the findings of the commission as to the applicant’s work restrictions, and by submitting evidence regarding the applicant’s efforts at vocational rehabilitation. If, on remand, the applicant proves a loss of earning capacity that exceeds the amount of the applicant’s permanent partial disability benefits now awarded, the respondent shall be given credit for the payment made pursuant to this order.          The applicant may also need further medical treatment. Accordingly, jurisdiction is reserved for such further findings, orders, and awards as may be necessary consistent with this order.          By the Commission:           David B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.          Procedural Posture          The applicant filed a hearing application in November of 2018 claiming a left acetabular fracture work injury occurring on August 5, 2016. An administrative law judge for the Department of Administration, Division of Hearings and Appeals, Office of Worker’s Compensation Hearings (Division), heard the matter on July 31, 2019, and December 4, 2019, and issued a decision dated March 3, 2020, finding the applicant sustained work-related injuries and that he was permanently and totally disabled. The employer and insurer (collectively, the respondent) filed a timely petition for review.          The respondent conceded jurisdictional facts and an average weekly wage of $1,404. 00. The issues are whether the work injury caused the applicant’s low back, sacroiliac joint, or left shoulder conditions; the nature and extent of the applicant’s work injuries; the nature of the applicant’s permanent work restrictions; and whether the applicant is permanently and totally disabled or sustained a lesser loss of earning capacity as a result of the work injuries. The commission has considered the petition and the positions of the parties, and has independently reviewed the evidence. Based on its de novo review, the commission modifies and affirms in part, reverses in part, and remands in part the decision of the administrative law judge, and makes the following:          Findings of Fact and Conclusions of Law          1. The applicant attended Milton High School, and completed the 10^th grade. While in school, he received Cs and Ds.² After he left school, the applicant worked at Nasco Plastics for six or seven years driving a forklift, loading and unloading semis. He began working for the employer in 1994 as a laborer and was in the laborers’ union until about 2018, when he was put into the operating engineers’ union. During the time he worked for the employer, the applicant shoveled gravel and asphalt, went down manholes, and ran equipment for building roads, parking lots, and driveways. He worked 50 to 80 hours per week, and worked seasonally from about March until the end of November or beginning of December. ³          2. Prior to the work incident, the applicant did not have left shoulder pain other than occasional aches and pains, and he did not have any injuries to or treatment for his left shoulder. He did not have any left shoulder pain that interfered with his normal activities or work duties. He had no ongoing pain in his left leg and had never had any treatment for his left leg. ⁴          3. The applicant did have some prior low back pain. The applicant was in a motor vehicle accident in 1988. He sought medical treatment once on June 7, 1990, for the accident for the low back pain that had been bothering him since the accident. On June 7, 1990, the applicant’s doctor wrote a letter regarding the applicant’s injuries from the November 18, 1988, motor vehicle accident. ⁵ The applicant was in the front passenger seat without a seat belt and was thrown from the car when the car went off the road at a curve. The doctor noted that since the accident, the applicant had low back pain that did not radiate; the pain was aggravated by bending or twisting, but it did not interfere with his work as a forklift operator. The assessment was a musculoligamentous injury of the low back. The applicant had physical therapy, and the doctor suggested the applicant try the spine clinic. The applicant did not seek any further medical treatment for the motor vehicle accident. ⁶          4. In 2003, the applicant injured his back while working for the employer when he was removing concrete slabs and had pain radiating into his right lower extremity. ^[7] An MRI showed a central to right-sided disk bulge at the L5-S1 level. The applicant had outpatient treatment and epidural injections, however, he did not have ongoing pain after that that required him to seek medical attention or lose work. 8 He had never received any permanent disability ratings for his back, left shoulder, or left hip prior to the work injury. ^[9]          5. In 2015, the applicant had medical treatment for painful foot corns. In the review of musculoskeletal system, the doctor noted that the applicant had “back pain and knee pain. ”¹⁰ However, the applicant did not seek medical treatment for his back at this time or from 2004 until the date of the work incident. ¹¹          6. On August 5, 2016, the applicant was attempting to load a 7,000-pound asphalt road roller onto a trailer when the metal drums of the roller started spinning out on the metal of the trailer and the roller threw him off and into a grassy ditch. He landed on his leg and his left side. The applicant described the injury as “Well, it shot me off the trailer. We were on a country road. I flew…I snapped my neck. I knocked off of from it. I flew down into the ditch. The roller, when it came off, hit the side of the road and it rolled on top of me and crushed me. ”¹² The applicant was on his back when the roller landed sideways on him and crushed his left side; the roller landed on him to the centerline from about his left hip to his chest. The applicant passed out a few times and was “going in and out. ” When he came to, the roller was still running but was stopped by a tree from running over him again. The applicant could not move, but called a coworker to help him. He had immediate pain in his left hip, his lower back, his left shoulder, and his left side. ¹³ Rescue personnel transported the applicant to the hospital.          7. The applicant presented to the emergency room (ER) and was admitted as a level II trauma. The ER note indicates that the applicant did not lose consciousness, that the back had no bruising, tenderness, or step-offs; the left shoulder was grossly normal, with no deformity. He had an abrasion on his right upper extremity and it was edematous, and he had scattered abrasions on his legs and a laceration...