DELBERT J. RAFALSKI, Applicant
INTL STAMPING CO INC, Employer
OLD REPUBLIC INS CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed November 30, 2004
rafalde . wsd : 101 : 1 ND § 8.19
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant, a Pepsi-Cola route deliveryman, claimed he injured his back in an accident involving a butcher and pallet jack while making a delivery in a store. The employer and its insurer (collectively, the respondent) assert the accident did not happen, or if it did, did not cause any disability. The ALJ found the injury occurred as alleged, and awarded compensation for 13 weeks of temporary disability in a final order.
On appeal, the respondent focuses on whether the injury happened, pointing out the applicant first mentioned a shopping cart in the vicinity on cross-examination, that the applicant said he was struck in the back and hip by an unloaded pallet jack about three feet high (which the employer insists is too low to strike the average person on the hip and back), and that applicant testified that the butcher did not introduce himself but the applicant knew his name was Greg. The respondent also argues it was prejudiced by ALJ Kaiser's denial of a continuance to bring in Greg. Further, the respondent contends the commission should find a June 2002 end of healing based on Dr. Weiss's report.
The commission declines to conclude the presence of the shopping cart in the vicinity undercuts the applicant's credibility. The applicant did not, for example, change his story to say he was hit by the shopping cart instead of the pallet jack. Nor does height of the electric pallet mover cause the commission to discredit the applicant's credibility. Dr. Wolfe describes the injury as occurring when the applicant was hit by the pallet jack and twisted his back as he fell. Further, it is evident that the applicant was only estimating the height of the jack.
Nor does the fact the applicant knew butcher Greg's name seem suspicious. While the applicant said the butcher did not identify himself, he was only answering what he had been asked. The applicant could well have found out Greg's name from other Rainbow Foods personnel. Indeed, since there is in fact a "Greg" working as a butcher for Rainbow Foods, it seems likely he did.
The commission does note that the applicant denied prior low back problems to his doctors when in fact he had some. (1) However, even Dr. Weiss opines that if the applicant were hit by the pallet mover, that would have been the cause of his problems. Because the commission is satisfied the incident with the pallet mover occurred, it affirms the finding that the applicant sustained a compensable injury.
The commission carefully considered remanding this matter to allow the respondent to get testimony from Greg and the other Rainbow Foods meat cutter, Jim. However, it was evident from the record that Ms. Larry knew that the applicant had implicated an employee from the Rainbow Foods meat department well in advance of hearing. Yet Pepsi brought Rainbow Foods store manager and grocery manager to the hearing rather than Greg, who was the head of the meat department and on duty the day in question.
Finally, the commission declines to modify the ALJ's decision to end temporary disability compensation earlier based on Dr. Weiss's opinion. Even Dr. Weiss acknowledges ongoing complaints when he made that recommendation; he just felt the symptoms did not warrant continuing treatment. The applicant's treating doctor disagreed, and the commission is satisfied his opinion is more credible on this record.
cc:
Attorney Michael A. Peters
Attorney Bonni D. Fredrick
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]