MELISSA HAZELTON, Applicant
MENARD INC, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
In September 2003, the applicant filed an application for hearing seeking compensation for low back injury sustained on October 7, 2002. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development originally heard the matter on February 14, 2005. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $488.18 at the time of alleged injury.
Following the February 14, 2005 hearing, the ALJ issued an order on February 18, 2005, finding the injury was compensable and awarding permanent partial disability on a functional basis at seven percent. However, the ALJ held that the claim for permanent partial disability for loss of earning capacity had not yet ripened.
On March 6, 2006, a second hearing was held, this one solely on the issue of the applicant's claim for permanent partial disability for loss of earning capacity. The record at the second hearing included exhibits from the first hearing, additional exhibits from the second hearing, and a post-hearing submission of medical records. The record was closed on March 27, 2006, and the presiding ALJ issued his decision awarding loss of earning capacity at 23.5 percent on June 20, 2006. The respondent filed a timely petition for commission review.
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 makes the following:
The applicant was born February 8, 1970. In July 2002, she started working for the employer fabricating wooden trusses from pre-cut lumber. On October 7, 2002, she suffered an injury to her low back arising out of and incidental to employment. On July 8, 2003, the applicant underwent a microdiscectomy at L5-S1 that was not successful. She continued to undergo extensive post-surgical physical therapy and pain management. In October 2003, she returned to work for the employer part-time at light duty, but with full-time status and pay rates. In March or April 2004 when the busy season started, her doctors released her to work 9-hour days at light duty. On July 22, 2004, Donald Bodeau, M.D., assigned permanent restrictions and assessed 7 percent partial disability that was awarded in the department's initial April 2005 order. Consistent with that April 2005 order and Dr. Bodeau's opinion, the applicant reached an end of healing on July 22, 2004.
Dr. Bodeau's restrictions did not limit the number of hours the applicant could work. Consequently, the applicant worked in what the employer considered "full-time status." However, the applicant rarely managed to work a full week upon returning to work.
For the first six months following her return to work on permanent restrictions on July 22, 2004, the applicant averaged only 26.42 hours per week. Exhibit X. There were a variety of reasons for her missed time, including lost time due to a sore back. In addition, some of the applicant's lost time for this period was clearly for other illnesses. The employer required doctor's excuses for some of the missed time; when required, the applicant provided excuses from her doctor.
The respondent does not challenge the reasons the applicant provides for the absences from work, nor does it claim they were not legitimate reasons to miss work on the days involved. However, because the applicant did not maintain a 40-hour per week average, the employer moved her into "part-time status" as of January 30, 2005.
Under the employer's system, workers in "full-time status" are paid more per hour, and guaranteed more hours, than workers in "part-time status." For example, the applicant had earned $10.30 per hour in "full-time status" when she was injured in October 2002, and was earning $11.00 just prior to her conversion to part-time status in January 2005. On part-time status, the applicant was paid $9.20 per hour. Further, a worker in full-time status in the applicant's job worked 40-hour weeks seasonally from November to April and 49-hour weeks from April to October. A worker in part-time status, by contrast, could work up to a 40 hour week and could work overtime if the overtime work was available.
After her conversion to part-time status, the applicant worked on average well under 40 hours a week. Based on the information provided by the respondent in exhibit 6, the applicant missed an average of 12.8 hours of work per week for back pain from April 2005 to February 2006 (the month preceding the hearing). See ALJ decision page 7. Of those missed hours, the applicant had an express doctor's excuse releasing her from work for back pain on an average of 9 hours per week.
As noted above, the issue in this case is the applicant's entitlement to compensation for permanent partial disability based on loss of earning capacity. Wisconsin Stat. § 102.44(6) provides in relevant part:
102.44(6)(a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
. . .
(f) Wage loss shall be determined on wages, as defined in s. 102.11. Percentage of wage loss shall be calculated on the basis of actual average wages over a period of at least 13 weeks.(g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal.
The main issue in this case is whether the 15 percent wage loss threshold barring loss of earning capacity under Wis. Stat. § 102.44(6) was reached, in light of the employer's offer of employment. Resolution of this issue hinges on the application of Wis. Stat. § 102.44(6)(g) to impute wages to the applicant. The respondent argues the commission should consider the employer to have continuously been providing or furnishing full-time work at the full-time wage -- that is full-time status -- to the employee for the purposes of Wis. Stat. § 102.44(6)(g). The respondent asserts that absent a formal, permanent work restriction limiting her ability to work full time due to her work injury, her inability or refusal to work in full-time status was without reasonable cause.
In order for wages to be imputed to a worker based on offered employment under Wis. Stat. § 102.44(6)(g) two things are required:
(1) the employer must make the offer in good faith, and
(2) the employee must refuse the offer without reasonable cause.
In this case, of course, the main reason the applicant was unable to continue in the employer's full time status after January 30, 2005, or even maintain full-time hours while in full-time status before that date, was her back pain. Again, the applicant missed an average of 12.8 hours of work per week for back pain from April 2005 to February 2006 and had an express doctor's excuse releasing her from work for back pain on an average of 9 hours per week. Like the ALJ, the commission is satisfied that there were genuine pain complaints that actually prevented the applicant from working on the days in question. Even limiting the calculation to the "doctor-excused" figure of nine hours per week, the wage loss exceeds fifteen percent during that period. Factoring in the conversion to lower-paying part-time status on January 30, 2005, largely because of the missed time due to the back pain, the applicant's wage loss greatly exceeded fifteen percent.
The respondent contends that the missed work for back pain, even the doctor-excused absences, does not provide reasonable cause under Wis. Stat. § 102.44(6)(g). The respondent suggests that finding reasonable cause on that basis inappropriately equates the doctor slips that excused the applicant from work on specific days with medical restrictions limiting the applicant's hours. Following this thread, the respondent states:
"To prove 'reasonable cause' for not accepting the applicant's good faith offer of employment the Applicant needed a report from one of her doctors limiting her hours."
Menard's initial brief, pages 4-5.
The respondent provides no citation to authority for that statement. Post-healing plateau work restrictions specifically tied to the work injury might reasonably be required if the applicant had outright refused the offered work without even trying it because she thought she might have back pain while doing it. However, here the applicant did not refuse the job itself. Rather, she accepted return to full-time status and worked at the employment offered, and when she could not, she provided valid doctor excuses to the extent required by the employer.
Under the facts of this case, where the applicant's doctor excused her from work on various days because of back pain, the back pain is a reasonable cause to refuse the offered hours of employment on those days. Wisconsin Statute § 102.44(6)(g) does not require that the injured worker's reasonable cause for refusing the offered work must arise from work restrictions from the compensable injury. Indeed, the commission has found reasonable cause under Wis. Stat. § 102.44(6)(g) based on factors completely unrelated to the injury, like the employer moving the job location, (1) or the applicant having accepted a job with another employer. (2)
The commission appreciates that Wisconsin Statute § 102.44(6)(c) states that "the determination of wage loss [under the 15 percent standard] shall not take into account any period during which benefits are payable for temporary disability." (3) However, it does not follow that unless the applicant claims temporary disability for the instances of doctor-excused back pain occurring after the end of healing, they cannot provide reasonable cause. True, the absence of expert medical opinion stating that the time off work for back pain was related to the back injury and surgery -- and that the applicant had entered a renewed period of healing when she missed those days of work -- may well militate against a temporary disability claim for those days. But the applicant is not claiming temporary disability compensation for those days. Rather, she is simply pointing to the instances of doctor-excused, disabling back pain as providing reasonable cause for refusing hours of work on those days under Wis. Stat. § 102.44(6)(g).
The respondent, in essence, asks the commission to rewrite Wis. Stat. § 102.44(6)(g), which now says in part:
. . . if the employer in good faith makes an offer of employment which is refused in good faith by the employee without reasonable cause,
to say
. . . if the employer in good faith makes an offer of employment which is refused in good faith by the employee without reasonable cause resulting from the injury,
However, the Supreme Court has addressed this very point in another extra-legislative attempt to add that same language to another subsection of Wis. Stat. § 102.44(6):
¶ 40. The parties also focused on the second clause of Wis. Stat. § 102.44(6)(b). The issue here is whether the "physical limitations" mentioned in the statute must derive from an unscheduled injury. This part of the statute allows DWD to reopen an unscheduled injury award if the employee terminates the employment relationship "because his or her physical or mental limitations prevent his or her continuing in such employment." Wis. Stat. § 102.44(6)(b).
¶ 41. We conclude that the second clause of Wis. Stat. § 102.44(6)(b) does not require that the limitations that cause the employee to end the relationship arise from an unscheduled injury. Had the legislature wished to make such a requirement, it could have written:
If, during the period set forth in s. 102.17(4) the employment relationship is terminated . . . by the employe because his or her physical or mental limitations resulting from the injury prevent his or her continuing in such employment.
The legislature did not draft the statute in that manner. To give effect to the reading favored by Ametek would breach our duty to interpret statutes by their ordinary language whenever possible. Moreover, we see nothing in Wis. Stat. § 102.44 to indicate that scheduled injuries cannot trigger the second clause of § 102.44(6)(b). In particular, we note that the legislature wrote § 102.44(6)(a) using the exact phrase "resulting from the injury" added to the hypothetical statute above. [Footnote omitted; emphasis in original.]
Mireles v. LIRC, 2000 WI 96, ¶¶ 40-41, 237 Wis. 2d 69, 86-87.
In short, the commission concludes that to the extent the employer has made a good faith offer of employment to which Wis. Stat. § 102.44(6)(g) applies, the applicant has shown reasonable cause for refusing many of the offered hours of employment -- taking her beyond the 15 percent wage loss threshold under Wis. Stat. § 102.44(6)(a) -- based on her doctor-excused absences for back pain. An award of permanent partial disability based on loss of earning capacity is appropriate on this record.
The last issue is the actual extent of loss earning capacity sustained by the applicant. In a certified vocational report for the respondent dated December 1, 2004, Richard G. Armstrong opined that the applicant sustained no loss of earning capacity because the applicant's post-injury hourly wage at the time of his evaluation matched her pre-injury hourly wage of $10.30. Exhibit 1. He also considered that the employer's supervisor, Mr. Myhers, had indicated a willingness to accommodate further job changes if the applicant requested them.
In a certified vocational report for the applicant dated October 8, 2004, Thomas N. Findlay opined that the applicant's pre-injury earning capacity was $25,000. Exhibit A. He opined that based on Dr. Bodeau's permanent restrictions the applicant had sustained a 25-35 percent loss of earning capacity due to lost work days and lost overtime.
The commission adopts the ALJ's finding of a 23.5 percent loss of earning capacity. In reaching this figure, the ALJ concluded that Mr. Findlay accurately assessed the applicant's pre-injury earning capacity at $25,000 per year. The ALJ concluded that the applicant's potential earnings at 40 hours a week in the employer's part-time status at $9.20 per hour reasonably approximated her post injury capacity.
Using those figures, the ALJ estimated the loss of earning capacity at 23.5 percent, a figure the commission finds reasonable after giving consideration also to the factors under Wis. Admin. Code DWD § 80.34. The commission does realize that the applicant has not been able to average 40 hours per week in her job with the employer since her healing plateau. However, while the commission concludes that her absences for back pain are "reasonable cause" for the purposes of calculating actual wage loss over a thirteen week period under Wis. Stat. § 02.44(6)(a), (f) and (g), that does not mean that the commission can conclude she is subject to permanent restrictions on her hours in all employment for the purposes of estimating loss of earning capacity for her remaining career in the absence of an expert medical opinion to that effect.
The commission recalculates the award only to account for the additional weeks of accrued benefits since the ALJ's order. A 23.5 percent loss of earning capacity results in 235 weeks of permanent partial disability at $212 per week (the statutory maximum for injuries in 2002), for a total of $49,820. Of this amount, the respondents have previously paid 70 weeks totaling $14,840 for the seven percent permanent partial disability to the body as a whole on a functional basis. The additional 16.5 percent awarded hereunder, then, is 165 weeks totaling $34,980. As of February 10, 2007, 97 weeks amounting to $20,564 of the additional amount awarded has accrued; 68 weeks amounting to $14,416 remains unaccrued.
The applicant approved an attorney fee set under Wis. Stat. § 102.26, at twenty percent of the additional amounts awarded hereunder. The future value of the fee equals $6,996 (0.20 times $34,980). However, the fee is subject to an interest credit of $129.80 to reflect the advance payment of fee attributed to unaccrued permanent disability. This present value fee due the applicant's attorney is thus $6,866.20; that fee plus costs of $808.31 shall be paid the applicant's attorney within 30 days.
The amount due the applicant within 30 days for accrued disability compensation to February 19, 2007, is $15,642.89, which equals the accrued additional award ($20,564), less the fee on the accrued additional award ($4,112.80), and less costs ($808.31)). The amount remaining to be paid to the applicant as it accrues after April 12, 2005, is $11,532.80, which equals the unaccrued portion of the award ($14,416.00), less the future value of fees ($2,883.20) thereon. That amount shall be paid to the applicant in monthly installments of $918.67 per month, beginning on March 19, 2005.
Treating doctor Bodeau stated in his medical report at exhibit B the applicant might require pain medication or non-steroidal anti-inflammatory medications, and that a reevaluation may be necessary if symptoms worsen. Given the relatively low level of proof necessary to retain jurisdiction under Wis. Stat. § 102.18(1)(b), Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992), DWD Worker's Compensation Act with Amendments to December 2004, footnote 101, this order shall be left interlocutory to permit awards for possible additional temporary or permanent disability and medical expenses that might arise in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Melissa Hazelton, Fifteen thousand, six hundred forty-two dollars and eighty-nine cents ($15,642.89) in disability compensation.
2. To the applicant's attorney, Steve M. Jackson, the sum of Six thousand, eight hundred sixty-six dollars and twenty cents ($6,866.20) in fees and Eight hundred eight dollars and thirty-one cents ($808.31) in costs.
Beginning on March 19, 2007, and continuing on the 19th day of each month thereafter, the employer and its insurer pay the applicant Nine hundred eighteen dollars and sixty-seven cents ($918.67) per month until the additional amount of Eleven thousand five hundred thirty-two dollars and eighty cents ($11,532.80) has been paid.
Jurisdiction is reserved for such further awards and orders as are warranted and consistent with this decision.
Dated and mailed
February 14, 2007
hazelme . wrr : 101 : 1 ND § 5.23
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
While the respondent asserts on appeal that it is not liable for loss of earning capacity under Wis. Stat. § 102.44(6) as set out in the body of this decision, it does not challenge the ALJ's rating of loss of earning capacity at 23.5 percent per se. In her answer to the respondent's petition, the applicant asks the commission to increase the loss of earning capacity award to 24.6 percent, and in her brief she seeks an increase to 30 to 35 percent.
However, while the commission retains the authority to review all issues in a case in which a timely petition has been filed by one of the parties, arguments of ALJ error or for affirmative relief raised by a nonappealing party are given less weight than if they had been made in a timely cross-petition or petition. Larry Schmidt v. Metropolitan Milwaukee Auto Auction, WC Claim No. 1998-012175 (LIRC April 13, 2001), See also: Deborah Polakowski v. Clearview Nursing Home, WC Case No. 96028025 (LIRC, December 17, 1997), and Robert Wilson v. Urban Artifacts Inc., WC Claim No. 1998000072 (LIRC, February 24, 1999), aff'd sub nom. Wisconsin Worker's Compensation Uninsured Employer's Fund v. Urban Artifacts, Case No. 99-2413 (Wis. Ct. App., May 9, 2000). In any event, the ALJ's 23.5 percent award in this case is reasonable and correct.
DAVID B. FALSTAD, Commissioner, (dissenting):
I cannot agree with the majority in this case. Like the respondent, I believe the applicant, who bears the burden of proof beyond a legitimate doubt, must show that her actual wage loss -- whether from the change in status to part-time or otherwise -- was due to restrictions imposed because of her work injury. Here, the applicant has at most proven she lost work time due for medical reasons, some of which are related to back pain. There is also, as the respondent points, out, reason to question the value of the doctor's excuses which were issued despite her not being seen. In any event the applicant has not proven that the back pain leading to her absences even arose from her work injury, much less that it worked any type of permanent restriction disqualifying her from the work offered by the employer. Since the applicant has failed in her burden of proof, I would dismiss her application for loss of earning capacity.
I therefore must respectfully dissent.
/s/ David B. Falstad, Commissioner
cc:
Attorney Steve M. Jackson
Attorney Dennis M. Sullivan
[Ed. Note: This decision is shown as affected by a technical corrective amendment made on February 22, 2007]
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