JOSEPH SCHULTE, Applicant
EASTMAN KODAK COMPANY, Employer
EASTMAN KODAK COMPANY, 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 March 19, 2007
schulte . wsd : 101 : 1 ND § 5.23
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
Posture
The applicant hurt his back at work on March 15, 1996. In November 1996, he was taken off work, and underwent a L4-5 discectomy in March 1997. On November 25, 1997, the applicant's surgeon released the applicant to return to work with a 60-pound lifting limit. That same month, the applicant was convicted in federal court, and sentenced to 15 months in prison.
The applicant's back pain returned in 1998, and he ultimately underwent a lumbar fusion at L4-5 in March 2001. In March 2002, his treating surgeon, Dr. Dopf, assessed a 15 percent functional PPD. (This was ten percent for the March 2001 discectomy-fusion plus 5 percent for persistent cramping, weakness, and lack of endurance.) In December 2003, Dr. Dopf signed a functional capacity evaluation setting work restrictions limiting the applicant to frequent lifting up to 10 pounds and occasional lifting up to 20 pounds (exhibit N.)
There is no dispute about temporary total disability, and the self-insured employer has conceded permanent partial disability on a functional basis at 20 percent. (December 2005 transcript, page 7). At issue is the extent of the applicant's permanent disability based on loss of earning capacity, and some additional medical expense.
Loss of earning capacity.
The ALJ found the applicant had a loss of earning capacity, which he rated at 35 percent. That figure is at the low end of the range set by the applicant's vocational expert, Mr. Greenya.
The self-insured employer appeals, arguing that the applicant has no loss of earning capacity claim since he could be working for the employer were it not for his conviction. That aside, the employer argues, the applicant has no loss of earning capacity even on the open market, given the various Wis. Admin. Code § DWD 80.34(1) factors including his efforts to find work, his retraining, and the displaced worker analysis offered by Mr. Lynch.
Mr. Lynch initially based his opinion on the assumption the applicant could have continued working for Eastman Kodak but for his federal conviction. The employer advances a similar argument in its brief. However, when the applicant had recovered from his initial discectomy surgery in November 1997, the employer did not actually offer the applicant work, but rather offered to put him on a medical leave status, though it was not yet aware of his conviction.
Wisconsin Stat. § 102.44(6)(a) and (g) contemplate an actual offer that was refused. Further, the applicant's current work restrictions after the lumbar fusion surgery in March 2001 are different -- and much more limiting -- now than they were in 1997. The employer offers considerable evidence to show it tried to help the applicant find work after the fusion surgery, though the employment prospects did not include work with the employer. Thus, the commission would not only have to infer the employer would have offered him work in 1997 had he not gone to prison (despite offering him leave status rather than work in November 1997), and also that the employer would have continued to provide work after the fusion surgery when his work restrictions changed from lifting 60 pounds to lifting 20 pound occasionally and 10 pounds frequently.
The commission cannot draw those inferences on the record in this case. The bar on an award for loss of earning capacity imposed under Wis. Stat. § 102.44(6) when the time-of-injury employer returns an injured worker to work paying at least 85% of his pre-injury wage -- or the applicant refuses such work without reasonable cause -- does not apply in this case. Instead, the applicant is entitled to compensation for loss of earning capacity, giving due consideration to the factors under Wis. Admin. Code § DWD 80.34(1), assuming his disability on a vocational basis for loss of earning capacity exceeds permanent partial disability already conceded at 20 percent compared to disability to the body as a whole.
In his second written report, Mr. Lynch suggested the applicant had the potential to earn wages between $30,000 and $90,000 post injury, so there was no loss compared with his pre-injury capacity of $50,000. However, at the hearing, Mr. Lynch indicated the applicant's post-injury earning capacity was only about $27,000 annually and that -- displaced worker theory aside -- the applicant's loss of earning capacity would be perhaps 50 percent. June 2006 transcript, page 93.
The commission declines to adopt Mr. Lynch's displaced worker analysis, at least to the extent of finding the applicant had no loss of earning capacity. The applicant has not been shown to have been displaced by the economic forces or the obsolescence of his skills. Rather, Mr. Lynch suggests the time the applicant spent in prison has had the same effect in displacing him in the labor market or work force. However, not all of the applicant's time off work was caused by his conviction and imprisonment; a substantial period of lost work time was due to recovering from the surgeries done as a result of the work injuries. Finally, the displaced worker analysis Mr. Lynch offered in his hearing testimony is somewhat at odds with the high post-injury wage figures Mr. Lynch himself offered as "reflective of [the applicant's] skills, knowledge, education, and prior work experience" in his second written report. Exhibit 18, November 17, 2005 report of Lynch, pages 3.
The fact remains, however, that the applicant's criminal conviction plays a significant role in his decreased earning capacity in this case. It is "other pertinent evidence" which shall be taken into consideration with respect to earning capacity (Wis. Admin Code § DWD 80.34(1)(k)), and certainly the employer is not liable for the portion of the applicant's loss of earning capacity attributable to his conviction and imprisonment. In addition, the record raises some question concerning the applicant's efforts to find work. These factors, and the others in Wis. Admin. Code § DWD 80.34, counsel an award at the low end of Mr. Greenya's range (1), taking into the applicant's significant physical restrictions imposed following the surgeries to treat the work injury. Accordingly, the commission affirms the ALJ's reasonable and appropriate award.
The medical expenses.
The commission affirms, too, the ALJ's denial of the claimed medical expenses. These involve prescriptions. The applicant has shown these were probably prescribed for pain and depression. However, he has failed to provide credible expert medical opinion that the pain or the depression for which the medications were prescribed were caused by the work injury.
cc:
Attorney Charles M. Soule
Attorney Patricia Lauten
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