Wieting, 081720 WIWC, 2017-026628

• Case Date: August 17, 2020
• Court: Wisconsin

Richard Wieting Applicant Two Rivers Sign & Design, Employer Sheboygan Falls Ins. Co., Insurer No. 2017-026628 Wisconsin Workers Compensation State of Wisconsin Labor and Industry Review Commission August 17, 2020           Atty. Matthew C. Siderits           Atty. David A. Piehler          WORKER’S COMPENSATION DECISION AND REMAND ^[1]           Michael H. Gillick, Chairperson          Interlocutory Order          The commission modifies and affirms the decision of the administrative law judge. Accordingly, within thirty (30) days from the date of this decision, the respondent shall pay:          1. To the applicant, the sum of nineteen thousand, six hundred forty-six dollars and no cents ($19,646.00) for temporary total disability benefits.          2. To the applicant’s attorney, Matthew Siderits, the sum of eleven thousand, nine hundred sixty dollars and ninety-six cents ($11,960.96) for attorney fees, and one thousand, twenty-seven dollars and fifty-two cents ($1,027.52) for costs.          3. To Milwaukee County Child Support Services, the sum of twenty-eight thousand, one hundred ninety-five dollars and sixty-five cents ($28,195.65).          4. For medical treatment expenses,

a. To Divine Savior Healthcare (hospital), the sum of eight hundred ten dollars and no cents ($810.00).

b. To UW Health, the sum of one hundred sixty-four dollars and no cents ($164.00).

c. To Advanced Pain Management, the sum of four hundred ninety-two dollars and no cents ($492.00).

d. To Johnson Chiropractic, the sum of two hundred fifty dollars and no cents ($250.00).

e. To United Healthcare, the sum of three thousand, one hundred sixty-six dollars and eighteen cents ($3,166.18).

f. To Medicaid, the sum of three hundred sixty-three dollars and forty cents ($363.40).

g. To Physicians Plus, the sum of six hundred eighty-four dollars and eight cents ($684.08).

h. To Unity Quartz, the sum of one thousand, five hundred seventy-six dollars and ninety-six cents ($1,576.96).

         The respondent shall pay for reasonable expenses for the procedure recommended by Dr. Fattough in his October 23, 2018, practitioner’s report, if the applicant so chooses, and for any necessary follow-up care.          Jurisdiction is reserved for such further findings and orders 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 June of 2018 seeking compensation for a low back injury, with a date of injury of January 27, 2017. An administrative law judge for the Division, heard the matter on October 8, 2019, and issued a decision dated December 26, 2019, finding a compensable work injury and awarding benefits. The employer and insurer (collectively, the respondent) filed a timely petition for review.          Prior to the hearing, the parties conceded jurisdictional facts and an average weekly wage of $760.49. The issues are whether the applicant sustained a work-related low back injury in 2017, and, if so, the nature and extent of the applicant’s disability, and the respondent’s liability for medical expenses. 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 the decision of the administrative law judge and makes the following:          Findings of Fact and Conclusions of Law          As supplemented by the commission’s memorandum opinion,2 the commission makes the same findings of fact and conclusions of law as stated in the administrative law judge’s decision and incorporates them by reference into the commission’s decision, subject to the following modifications:          Modifications          On page 2 of the decision, delete the last sentence of the first paragraph of the Findings of Fact and Conclusions of Law and replace it with the following, “Ken Jahn testified that the sign business was difficult work and that “having a sore back in the sign business is something we really all come to live with.”          On page 5 of the decision, delete the last paragraph and replace it with the following:

The applicant has been in a healing period since January 27, 2017, and will remain so until he receives the spinal cord stimulator. Pursuant to the Social Security offset and child support information provided after the hearing, the applicant began receiving Social Security Disability benefits as of September 1, 2017. Between January 27, 2017, and September 1, 2017, he had no Social Security offset and is entitled to $12,506.00 in temporary total disability benefits; the applicant’s attorney is entitled to fees of $3,126.50 for this period. Between September 1, 2017, and October 8, 2019, the applicant’s temporary total disability benefits were subject to a Social Security offset. His post-offset rate was $322.70, for a total of $35,335.65; the applicant’s attorney is entitled to fess of $8,834.46 for this period.

         On page 7 of the decision, delete the “Memorandum.”          Memorandum Opinion          The applicant, who was born in 1970, worked for the employer for about three years installing and servicing signs for the employer. He alleges that the work he did that involved bending and twisting and lifting 100 to 150-pound pylon poles on January 27, 2017, was at least a material contributory factor in the onset or progression of his low back condition. He initially attributed the onset of his low back pain in 2017 to a “flare-up” from a prior alleged work incident with the same employer that involved lifting a heavy crate in September of 2015. This led to some confusion in the medical records as to the history of the applicant’s condition and which incident the applicant identified as the onset of his complaints. He had had several low back pain “flare-ups” in 2016 after the 2015 incident and he thought the 2017 pain was another “flare-up.” However, when he did not recover in a week or two, as he had in the past, he determined that this was a new injury in 2017. The respondent denies a work injury and alleges that the applicant’s back condition is an exacerbation of a preexisting degenerative condition.          The Applicant’s Alleged Injury and Medical Treatment          The applicant had few medical records related to treatment for his back prior to the 2015 work incident. In 2011, the applicant sought medical treatment as a result of a grill explosion where the gas ignited and threw the applicant against the house. According to the applicant, he had neck pain as a result; he did not recall low back pain.3 An x-ray of the applicant’s lumbar spine was taken on June 24, 2011, and showed mild irregularity of the superior endplate of the L3 vertebral body which may have represented degenerative changes.4 On April 21, 2015, a nurse note indicates that the applicant presented with dizziness and fever; he also complained of left low back and right low back aching pain of 6/10 on a pain scale. The pain began gradually one day prior and had been continuous and was aggravated by activity.5          The September 2015 Incident and Medical Treatment Prior to 2017          According to the applicant, on September 24, 2015, he injured his low back at work while lifting a crated sign and felt a pull in his back; he awoke the next morning with pain.^[6] He reported the injury to one of the employer’s co-owners, Ken Jahn, and sought medical treatment for low back pain that radiated into his left leg.7 Ken Jahn was the one who told the applicant to seek medical treatment.^[8] After this, he worked on light duty.9 After the September 2015 incident, the applicant had some physical therapy and was discharged from treatment in November of 2015 with no restrictions.10 At that time, he felt he was pain-free.11          The medical records confirm a fairly short treatment duration. On September 28, 2015, the applicant presented to the ER for treatment complaining of sharp, shooting pain in the left low back with pain that radiated to the left leg of 10/10 on a pain scale. “Patient states: he awakened 4 days ago with low back pain down left leg and pain into his groin.”12 The medical note indicates, “The patient presents with pain that is acute. Patient has 2 complaints. 1^st complaint is left S1 pain which radiates into his left hip and leg since the 25^th...