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December 2017 Worker’s Compensation Case Law Update

Once again, we bring to you a summary of some of the recent court opinions and administrative decisions regarding worker’s compensation claims. Please note that every case is unique and these updates may not apply to a claim you are handling. If you have questions about a claim, or if you want legal advice, please consult with your attorney. At Aplin & Ringsmuth, we are always happy to take your call and answer any general questions you may have.

 

Wisconsin Supreme Court

 

  1. Linda Burt-Redding v. Labor and Industry Review Commission, 377 Wis.2d 729 (Ct.App. 2017)

 

This is a decision that we previously reported to you in September of 2017. At that time, the Court of Appeals affirmed the decision of the lower courts denying the plaintiff’s claim for benefits arising out of an alleged mental stress injury. The plaintiff was a police office and alleged that the stress she experienced in the line of duty caused her to develop debilitating mental stress, eventually leading to an early retirement. She sought permanent and total disability benefits. Aplin & Ringsmuth’s team of attorneys defended the claim on behalf of the respondents and were able to secure a win at each step of the process. Just this month, the Supreme Court of Wisconsin denied the applicant’s petition for review. Thus, the decision from the Court of Appeals is final. Of note, claims involving non-traumatic mental stress injuries require the applicant must show that the mental injury must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension that similarly-situated employees must experience. In other words, the stress must have resulted from a situation that is out of the ordinary or sufficiently rare that, when it is experienced, it has not been foreseen or expected.

 

Labor and Industry Review Commission

 

  1. Connie Kadlec v. Don Johnson’s Hayward Motors and Wilson Mutual Ins. Co., 2013-020253, 2017 WL 6508111 (LIRC Dec. 15, 2017)

 

The applicant brought a claim for permanent and total disability as a result of an SI joint fusion and L4-5, L5-S1 disc pathology, which was denied by ALJ Cathy Lake. The applicant thus sought commission review. Notably, the claim had previously gone to hearing in 2014 where ALJ Joseph Schaeve determined that the applicant sustained 4% permanency for the SI joint fusion. He further determined that the L4-5 and L5-S1 disc pathology were unrelated to the work injury. The commission subsequently agreed with ALJ Schaeve’s decision and these findings became final upon the expiration of the appeal period back in 2014. This time around, the commission noted that the applicant’s claim for permanent total disability involved an attempt to relitigate those previously-determined issues, i.e., nature and extent of disability. Thus, the doctrine of issue preclusion applied. This is not to say that an applicant can never bring a subsequent claim for additional indemnity benefits. However, where it was previously determined that there were no physical limitations attributable to the work injury, then the doctrine of issue preclusion will apply to bar any later claims for loss of earning capacity.

 

  1. Jason Neitzke v. Miron Construction, 2013-003481, 2017 WL 6508112 (LIRC Dec. 15, 2017)

 

The applicant sustained a conceded right shoulder injury in the course of his employment with the employer, a construction contractor. He continued working off and on in a light duty capacity when work was available. In November of 2012, while still under restrictions, he was laid off because of the lack of light duty work. When released without restrictions in December of 2012, he faxed the release to the employer. No action was made to bring the applicant back to work. Testimony from several witnesses demonstrated that when the employer was in need of workers, it would contact the employer’s labor resource coordinator. If the needed workers were unavailable from other jobs operated by the employer, the labor resource coordinator would contact the union labor hall and ask for specific types of workers and the number of such workers needed. The union then referred workers on a first-come-first-served basis. The employer witnesses testified that there was not much work available in 2013. Importantly, the commission noted that “[w]here an employer obtains laborers through a union hall, and does not request a particular laborer by name, the employer is not required to deviate from that practice to rehire an injured worker,” (emphasis added). In this case, there was no evidence that the applicant was referred to the employer for work and rejected by the employer. So even though none of the employer witnesses could say why the applicant was not rehired, the evidence failed to show that the employer unreasonably refused to rehire the applicant.

 

  1. Daniel Sebero v. Marinette Marine Corp. and Sentry Ins. A Mutual Co., 2015-025387, 2017 WL 6508113 (LIRC Dec. 15, 2017)

 

The applicant brought a claim for occupational hearing loss as a result of his 41-year work history with the employer as a welder. His treating doctor, Dr. Vandenberg, opined that the applicant sustained binaural occupational hearing loss and that an audiogram performed on Sept. 8, 2014 was the appropriate measure of that loss. In contrast, the respondents submitted a report from Dr. Dunlap who noted that there was no evidence of noise-induced hearing loss. In particular, on the left, the audiograms supported a sudden neurosensory hearing loss of unknown etiology sometime between the 2010 and 2011 audiograms. Somewhat contrary, Dr. Dunlap acknowledged that the right ear audiograms were compatible with noise-induced loss, but that it was most likely due to left-handed shooting sports which affect the right ear. If there was any occupational hearing loss, it was to the right ear only, in Dr. Dunlap’s opinion. The ALJ issued an order in favor of the applicant and the respondents appealed. They argued that Dr. Vandenberg’s WKC-16-B from was insufficient to carry the applicant’s burden of proof because, while he checked the causation box supporting an occupational hearing loss injury, the attached records did not provide sufficient numerical assessment of the percentage of occupational hearing loss, and did not indicate that the loss was binaural. The commission noted this argument was simply inaccurate. Dr. Vandenberg adopted the Sept. 8, 2014 audiogram which provided measurements from which percentages of loss may be calculated. Further, in the clinic notes, Dr. Vandenberg plainly diagnosed “SNHL [sensorineural hearing loss] BILATERAL.” Ultimately, the issue on appeal was whether Dr. Vandenberg or Dr. Dunlap was the more credible doctor. But it is worth noting that some deficiencies on the WKC-16-B form will be overlooked if the medical records cure those deficiencies.

 

  1. Ronald Williams v. Manpower Inc. and Nat’l Union Fire Ins. Co. of Pittsburgh/Gallagher Bassett Serv. Inc., 2014-003536, 2017 WL 6508115 (LIRC Dec. 15, 2017)

 

The applicant filed a hearing application seeking compensation for a neck injury. The ALJ found that the work incident resulted in a permanent cervical injury requiring surgery, but dismissed the claim for loss of earning capacity. The applicant petitioned for review of the dismissal of the loss of earning capacity, and the respondents cross-petitioned for review of the findings of a permanent injury requiring surgery. The commission agreed with the respondents. It noted that Dr. Hsu, the IME doctor, credibly diagnosed pre-existing cervical spondylosis based upon a pre-existing cervical MRI. They also found credible Dr. Hsu’s opinion that the pre- and post-injury MRIs showed a natural progression of the preexisting degenerative condition. In contrast, they noted that the treating doctor, Dr. Maciolek, failed to support his causation opinion with an articulated medical analysis or explanation, other than an acceptance of the applicant’s attribution of his ongoing neck condition to the work incident. They further noted that the applicant was not a credible witness based upon “videotape evidence,” presumably surveillance that contradicted his claims of disability.

 

  1. Sherri Williams v. Milwaukee Board of School Dir., 2012-013903, 2017 WL 6508116 (LIRC Dec. 15, 2017)

 

In this case, the ALJ issued an order on September 21, 2017 stating that a prior order was amended to be an interlocutory order. The respondent-employer petitioned for review of the September 21, 2017 order. The commission noted that the order did not award or deny compensation. Therefore, the commission did not have jurisdiction to consider the arguments advanced by the parties and was forced to dismiss the petition for review.

 

New Commissioner/Chairperson: Georgia E. Maxwell

 

On October 30, 2017, Governor Walker appointed Georgia E. Maxwell to the commission and she was subsequently elected chairperson by her fellow commissioners on November 2, 2017. Her term of chair will run until March 1, 2019. Maxwell previously served as Deputy Secretary of the Department of Workforce Development for approximately two years. Before that, she served as the Assistant Deputy Secretary of the Department of Financial Institutions for two years, and as an Executive Assistant at the Wisconsin Department of Workforce Development for two years.