KACEY ECKELBERG, Applicant

WAL MART STORES INC, Employer

ILLINOIS NATIONAL 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.

Dated and mailed June 25, 2007
eckelka . wsd : 175 : 9  ND § 5.39

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was entitled to benefits for her vocational retraining program, including reimbursement for tuition and books and mileage, and reimbursement for maintenance. The employer contends that the applicant is not entitled to vocational rehabilitation training benefits pursuant to Wis. Stat. § 102.61(1)(g) and Wis. Admin. Code §§ DWD 80.49(4)(d), (9)(c) and (10). The employer states that the applicant's pre-injury employment and post-injury employment form a history of a typical young person who has not yet found her niche in life, but the injury has had no discernible impact on her employment, and the retraining in this case is a needless expense of public and private funds. The employer points to the fact that the applicant is currently working at $8.00 an hour, but is anticipating a raise up to $9.00 an hour with other more vague incentives for bookings. The employer points to the fact that the median wage for the position in which the applicant is being retrained is only $9.00 per hour. The employer contends the administrative law judge should have credited the opinion of the employer's vocational expert, Ms. Albers, that the applicant's pre-injury earning capacity was $11.00 to $12.00 per hour, and that the applicant can reach that potential without any retraining.

However, the evidence indicates the applicant was 24 years old at the time of her work injury. The applicant had worked as a nursing assistant and as an unskilled laborer in factories and fast food restaurants. The applicant testified that she had applied to as many as 50 places to look for work following her work injury and had obtained only six interviews. Mr. Greenya, the applicant's vocational expert, testified that the applicant does not fare very well in the labor market following her work injury when she is looking for jobs because she is competing against people who have no limitations, and whose basic skills are superior to hers. Mr. Greenya testified that the applicant's work injury does not help her when she's in a job search.

Mr. Greenya testified that the applicant is currently working and earning $8.00 an hour, but in order to get her salary over $10.00 and perhaps at the $11.00 per hour level, the retraining is a good idea. Mr. Greenya testified that had the applicant stayed working for the employer she would be making $11.00 an hour. Ms. Albers admitted that the applicant could not return to performing physical work as she had done in the past with her current restrictions due to her work injury. The administrative law judge appropriately noted that before the work injury the applicant was not physically disabled and she was free to work at jobs in all of the physical demand categories, including medium, heavy, and very heavy work.

The applicant's work for the employer involved regularly lifting merchandise weighing up to 75 lbs. and she was only 24 years old at the time of the accident so she had plenty of time to learn a trade that would yield an income much higher than the $7.00 she was earning working for the employer. The commission agrees with the administrative law judge that because of the applicant's physical restrictions, the only reasonable chance the applicant has to obtain work paying more than bottom tier wages is to obtain new skills through a formal education. The commission credits Mr. Greenya's assessment that the applicant's retraining program is necessary to restore her as nearly as possible to her pre-injury earning capacity and potential. Based on the applicant's testimony of her ongoing restrictions, and given her extensive work search without good results until obtaining her most recent position, and based on Mr. Greenya's assessment, and given the applicant's physical restrictions and her prior work history as well as her relatively young age at the time of her work injury, and her pre-injury earning capacity and potential, the commission finds that the administrative law judge appropriately awarded the applicant compensation for her vocational rehabilitation program pursuant to Wis. Stat. § 102.61.

cc:
Attorney Margaret Stafford
Attorney Joseph P. Danas, Jr.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/07/05