STATE OF WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
WSRKER'S COMPENSATION DIVISION
P.O. BOX 7901
MADISON, WISCONSIN 53707
(608) 266-1340

2010-024764
RICHARD L DECKER
N981 KNEPPRATH RD
CEDAR GROVE WI 53013
Applicant,
P

VS.

E SEE ENCL

URE

KOHLER CO
DEAN YAGODINSKI MAIL STOP OO9
444 HIGHLAND DR
KOHLER WI 53044
Respondent,

KOHLER CO
C/O BROADSPIRE
19OO E GOLF RD STE 8OO
SCHAUMBURG IL 601 73-5033
lnsurance Carrier.

---o0o---

Hearing was held in Milwaukee, Wisconsin on March 27,2013. The record was closed per
stipulation of the attorneys on January 23,2015 upon receipt of outside materials and confirmation
of cessation of settlement negotiations.
APPEARANCES

in person, and by Attorney Charles F. Domer, of
Ðomer Law, S.C.; respondent self-insurer by
Attorney William R. Sachse of Peterson Johnson &
Murray, S.C.

 ¿

injury of
Jurisdictionalfacts, a $1,013.12 gross weekly wage and a compensable work
asserts that any claims of injury to
September 15,2010 are conceded. The respondent seïf-insurer
prior January 26,2005 conceded back injury,
the lower back were a temporary aggravation of a
and that the 2010 aggravation ended as of December

1

5, 2010, without need for permanent

Exhibit 3 was received, a WKC-13
restriction or permanent partial disability benefits. Respondent's
periods of temporary partial disability and
wiih benefits conceded and paid, noting intermittent
period from September 1 5, 2010 to May 16,
temporary total disability benefits for a continuous
partial disability benefits
2c11 (bcth dates exctusive) with $4,314.19 and $5,039.50 in temporary
paid and $675.41 in temporary total disability benefits paid.
and
The applicant is claiming entitlement to alternating temporary partial disability

temporary total disability benefits for a continuous period from May

17

,2011 (inclusive) to March

7,

received as Respondent's Exhibit 1 and
2Q12 (exclusive), with the parties stipulating to a document
worksheet by the
various social security information, including a prior reverse offsei calculation
parties stipulate that, if liability is
Department received into the record on January 23,2015. The

found, this worksheet shall be binding regarding the benefits due'

The applicant also is claiming entitlement to permanent total disability benefits as of
March 7, 2012 (inclusive)'
parties stipulate that such
ln the event that liability is found for medical expense, the
Exhi'oii 4 stipuiated by the
medical expense should be based upon an amended Responcient's

parties and received on April 16, 2013'
related medical
Accordingly, the issues in dispute are the nature and extent of disability and

expense for the conceded September 15,2010 work injury'
Upon the issues, the Administrative Law Judge makes the following

FINDINGS OF FACT
The applicant is

a

lg14graduate of Ozaukee High School and did not have any post-high

self-insurer, Kohler
school education thereafter. ln 1976 he began work for the respondent

 3
Company, with over 35 years experience as a manual caster, primarily involved in the manufacture

of Kohler toilets. His duties involved pouring slurry into a mold and allowing it to harden. After
solidifying, the molds were moved, separated and touched up as necessary. After the casting
pieces were assembled and inspected, the toiletwas processed further in another department for

drying and claying in a kiln. The applicant testified that the work was very physical, hot work
involving litting weights between 5 to 80 pounds, with frequent lifting of 80 pounds. The applicant
stated that for the first 20 to 25 years he probably worked six days a week with regular overtime.
On January 26,20Q5, the applicant sustained a conceded work related injury and was
treated with multiple surgeries with Dr. Richard Karr. The two surgeries were a two-level
discectomy at the L4-5 level and LS-S1 level in June of 2005, and repeat surgery in June of 2006.

ln May of 20Q7, Dr. Karr released the applicant to return to work without physical limitations. The
applicant returned to his work as a manual caster, and in the summer of 2009 he experienced a

flare up in his back pain. He returned to work in December of 2009 without limitation. The
applicant testified that he had not experienced any problems with his neck prior to September

1S,

2010, and testified that he had every intention of working full duty for the respondent until his

eventual retirement.
On September 15, 2010, the applicant sustained the conceded work injury but has no
recollection of the incident. During the hearing, the parties reached a stipulation of the following

facts: "The applicant sustained an injury when an unfinished toilet þowl fell from a height of 2 to 7
feet with an approximate weight of 80 pounds, striking the applicant on the back left side of the

head." The applicant testified that his partner, John Flesch,

later: informed him that he had lost

consciousness for between 2to 3 minutes. Post-accident, the applicant stated that he experienced
pain on the back left sjde of his head which radiated down into his neck and into his left shoulder
and arm. The applicant treated with his primary physician, Dr. Demaster, at the Aurora Sheboygan
Clinic with complaints of stiffness in his upper back and neck. The applicant was also experiencing

continued headaches and dizziness and referred for physical therapy and chiropractic treatment,

 4
of low back pain
which failed to provide relief. As time continued, the applicant began complaining
and was referred to
radiating into his left groin. He sought a second opinion with Dr. Jadlonski
his initial visit with
Dr. John Broderick, a neurologist at Columbia-St. Mary's Hospital. During

providing a history of neck
Dr. Broderick on March 15,2011, the office note mentions the applicant
complaints of
pain and radiating pain and numbness into his left arm and fingers. lt further noted
dizziness and short term
headaches, blurry vision, speech problems, marked fatigue, light headed
low back, back of his
memory problems. Dr. Broderick performed injections in the applicant's
pain management with
head, neck, upper back and mid back. Dr. Broderick referred him for

back; and for a surgical
Dr. Sadeghi, who performed epidural injections in both the neck and lower
30, 2011, noted that
consultation with Dr. Spencer Block. Dr. Block, in an office note of November
low back pain and
since the september 15, 2010 work injury, the applicant had been experiencing
and S1 radiculopaihy. He
radicular left leg pain, numbness and tingling. The EMG revealed left L5
due to good strength at
opined that he did not believe urgent suÉgical intervention was warranted

given his failure to
the time of his exam. He noted that lumbar surgical intervention was an option
further study. Dr. Block
improve with non-surgical management but recommended a discogram for
pre-existing condition of lumbar
opined that the applicant's causation of his symptoms was a
the work injury, as he
degeneration that was exacerbated beyond its normal progression due to
surgery on
was not experiencing his symptoms prior to the event. Dr. Block did not recommend

the applicant's neck'
The applicant testified that following his discussions with Dr. Broderick he was inclined to
of March 7 ,2012,
not pursue further back surgery. ln a narrative report (Applicant's Exhibit T)
up to 10 pounds
Dr. Broderick opined the applicant could perform sedentary work of lifting
stoop, twist, squat, crawl,
occasionally, but that he should avoid lifting; and should never bend or
perform any work hours,
climb or perform overhead work. He opined ihat the applicant should not

as he was unable to stand, walk, sit or drive during work related activities. He further noted that
taking Percocet
the applicant required three or more breaks per day in the work setting and was

 5

and Soma, narcotic medications which would preclude him from driving or operating machinery in a
work setting. He opined the applicant should never drive automotive equipment, be around or
operate moving machinery, work at unprotected heights, or work in areas with changes in the
temperature and humidity. He therefore opined the applicant was unable to work, and noted the
aforementioned restrictions were permanent. ln response to questions regarding causation, he
opined that the restrictions were due to the September 15,2010 work injury and assessed

functional permanent partial disability ratings of 5% for the low back condition;

SYo f or

the neck

condition; and 5% for the head injury, including a post-concussive syndrome.

The applicant was referred'by Dr. Broderick to a brain injury program at Sacred Heart
Rehabilitation through Columbia-St. Mary's and at the time of hearing was treating with two
psychiatrists, Dr. Jennifer Kennedy and Dr. Kenneth Johnson. Dr. Kennedy diagnosed a posttraumatic stress disorder and depression. Dr. Kennedy opined the applicant sustained a postconcussive syndrome with post-traumatic stress disorder and difficulty with psychological

adjustment. The applicant is prescribed Zoloft and takes it on a daily basis.
The respondent self-insurer relied upon the opinions of Dr. Mark Novum, a neurologist, who
examined the applicant on August9,2O12 and performed various medical record reviews. ln a
narrative report of August 16,2Q12, Dr. Novum opined the applicant sustained a closed head injury

with brief loss of consciousness at work on September 15,2Q10 followed by complaints of
headaches, dizziness and impaired mental concentrationialtered memory consistent with postconcussive syndrome, which had resolved as of the time of his examination. He further opined the
applicant had persistent post-concussive syndrome which he opined was not work related but due

to non work factors including past serious illness of his wife, past personal medical ills including
back surgeries; post{raumatic stress disorder and limited skill set reflecting poor academic

performance and pyschosocial depravation growing up in a ruralfarm area. He also diagnosed
chronic depression and anxiety. He opined that the applicant had reached a healing plateau as of
April 29, 2011 with regard to post-concussive syndrome. He opined the applicant sustained 0%

 b

permanent partial disability in connection to mild traumatic brain injuries and post-concussive
syndrome as a result of the work injury. He opined no further medical treatment or medical
therapies were indicated'

The respondent self-insurer also offered the opinions of Dr. Stephen Robbins, an
orthopedic surgeon, who examined the applicant at the respondent self-insureds request on
March 26,

ZO1,z

and performed a medical record review. Dr. Robbins opined the applicant

sustained a temporary exacerbation due to the work injury of September 15, 2010 which resolved
as of December 1 5,2010 without any permanent injury to the lumbar spine. He further opined the

applicant sustained a temporary aggravation of cervical degenerative disc disease at the C6-7
level and opined that he healed from his neck injury as of December 15, 2010. He also opined the

applicant sustained a post-concussive syndrome following the injury. He opined the applicant
partial disability.
reached a healing plateau in the cervical spine without sustaining any permanent
He opined that the applicant had significant psychosocial issues that were contributing to chronic
pain issues and opined the applicant was capable of full time gainful employment with a permanent

40 pound lifting restriction, but those were secondary to his previous back injury in 2005.
Based upon the record made, I found the applicant's testimony was credible. Combined
with the more credible opinions of his treating physician, Dr. Broderick, I find the applicant
sustained the aforementioned functional permanent partial disability ratings of 5% each at the
back, head, and neck, and permanent restrictions opined by Ðr' Brode¡'ick'

The applicant offered the vocational opinions of John Woest. Mr. Woest opined that, based
part time sedentary
upon Dr. Broderick,s restrictions, the applicant is incapable of performing even

work. He also requires multiple unscheduled breaks from work,

and will experience extreme

difficulties with attention and concentration due to severe pain. Combined with the applicant's
heavy reliance upon narcotic medication, he opined that the applicant is 100% totally vocationally

disabled due to the September 15, 2010 work injury'

 7

Based upon the record, I adopt the opinions of Mr. Woest and opine that the applicant is
permanently and totally disabled, and that such permanent disability began as of March7,2012
(inclusive), the date of Dr. Broderick's restrictions. I further find that the respondent self-insurer is
liable for the payment of the temporary total disability and temporary partial disability benefits for

the period from May 17,2011 (inclusive) to March 7,2012 (exclusive) based upon the wage
information provided in Respondent's Exhibit 1, equaling $19,011.95. The permanent total
disability benefits which have accrued to March 1, 2015 equal $61,561 .11 (155 weeks and 4 days,
from which social security reverse offsets have been credited). The total accrued equals
$80,573.06, from which a20% attorney fee or $16,1 14.92 shall be paid to Attorney Domer. The
attorney is also entitled to $1,809.38 as costs. The applicant is entitled to $64,458.14 as accrued
compensation.
Beginning April 1 ,2015, the applicant shall receive $1,489.41 per month and Attorney
Domer shall receive $372.36 per month and monthly thereafter until January 1, 2A18 when the
social security offset is redetermined. The attorney fee shall be paid until Octob er 6,2021, per rule
limiting payments to 500 weeks. The respondent self-insurer shall also pay the following

reasonable and necessary medical expense: $19,583.93 to United Healthcare as reimbursement
for their payment of non-industrial medical expense; to Columbia-St. Mary's Community
Physicians, $1,599.17;lo Columbia-St. Mary's Hospital/Milwaukee Campus, $4,729.61;to

Freedom PhysicaiTherapy, $3,148.00; to lnjureciWorker's Pharmacy, 51,254.54: to Medical
College of Wisconsin Physicians, $408.00; and to Metropolitan Anesthesiologists, $12,363.29 (of

which $8,633.16 is at Collection Associates); that the respondent self-insurer will be allowed 45
days to audit those bills for reasonableness pursuant to Wisconsin Administrative Code 80.72, with

payment up to the full amount remaining thereafter.
Because the applicant shall require future medical expense to cure and relieve the effects
of his injuries, jurisdiction is reserved as to all issues for such further findings and orders that may
be warranted.

 I
NOW, THEREFORE, this

TE

.

TORY

O

That within twenty one days, the respondent self-insurer shall pay to the applicant,'Richard

L. Decker, as accrued compensation, the sum of Sixty four thousand four hundred fifty eight dollars
and fourteen cents ($64,458.14), lump sum; to Attorney Charles F. Domer, the sum of Sixteen

thousand one hundred fourteen dollars and ninety two cents ($16,1 14.92) as fees plus the sum of
One thousand eight hundred nine dollars and thirty eight cents ($1,809.38) as costs.

Beginning April 1, 2015, the respondent self-insurer shall pay to the applicant the sum of
One thousand four hundred eighty nine dollars (1,489.00) per month and monthly thereafter until

the next social security offset is redetermined on January 1,2018; that the aforementioned monthly
benefits and redetermined monthly benefits are payable for as long as he may live; beginning April

j,

2015, to Attorney Charles F. Domer, the sum of Three hundred seventy two dollars and thirty six

cents ($372.36) as fees per month and monthly thereafter until January 1,2018 when the next
social security offset redetermination is made; that the attorney fee herein is payable for only as
payable beyond
long as the applicant may survive, with the limitation that no.attorney fee is

October 6,2021

The respondent self-insurer shall be allowed 45 days to conduct an audit for
reasonableness pursuant to Wisconsin Administrative Code DWD 80.72 and upon such review
they shall pay up to the following reasonabie ancj necessary meciical expense: io Uniiecj
Healthcare as reimbursement for their payment of non-industrial medical expense, up to the sum of
Nineteen thousand five hundred eighty three dollars and ninety three cents ($19,583.93); to
Columbia-St. Mary,s Community Physicians, up to the sum of One thousand five hundred ninety
nine dollars and seventeen cents ($1,599.17); to Columbia-St. Mary's HospitaliMilwaukee Campus,
up to the sum of Four thousand seven hundred twenty nine dollars and sixty one cents

($4,729.61); to Freedom Physical Therapy, up to the sum of Three thousand one hundred forty
eight dollars ($3,148.00); to lnjured Worker's Pharmacy, up to the sum of One thousand two

 o

hundred fifty four dollars and fifty four cents (61,254.54); to Medical College of Wisconsin

Physicians, up to the sum of Four hundred eight dollars ($4OB.0O); and to Metropolitan
Anesthesiologists, up to the sum of Twelve thousand three hundred sixty three dollars and twenty
nine cents ($12,363.29), of which the sum of $8,633.16 is at Collection Associates; that any

amounts remaining after 45 days shall be paid up to the full amounts.
Jurisdiction is reserved as to all issues for such further findings and orders as may be
warranted.

Dated and rnailed at Madison, Wisconsin this

?-

2015

(
Sherman C. Mitchell, Adm
SCM:an

cc:

ATTORNEY CHARLES F DOMER
C/O DOMER LAW, S C
3970 N OAKLAND AVE STE 201
MILWAUKEE WI 53211
ATTORNEY WILLIAM R SACHSE JR
C/O PETERSON JOHNSON & MURRAY
PETERSON JOHNSON & MURRAY
788 N JEFFERSON ST STE 5OO
M I LWAUKEE WI 53202-37 63

Law Judge

7Çhav or