LARRY O LOKEN, Applicant

ROEHL TRANSPORT INC, Employer

LIBERTY MUTUAL INS CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on August 16, 1996. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury to his back arising out of and in the course of his employment with the employer on or about May 27, 1993, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:

The applicant, whose birthdate is March 3, 1939, was employed as an over-the-road truck driver for the employer. He began this employment in 1990. He was west bound on I-80 in Ohio on May 27, 1993, when unexpectedly, his truck hit a bump and his seat "went down." This resulted in immediate low back pain so intense that it caused the applicant, to break out in a sweat and feel woozy. He pulled off the road and laid down in the sleeper cab for about two hours before continuing.

About three hours after the accident the applicant telephoned the dispatcher, Dennis Koch, and reported the injury. Koch remembered this call, although not the exact date or time. He remembered the applicant telling him that he thought he hurt his back by bottoming out in his seat. Koch switched the applicant over to the employer's worker's compensation coordinator, Renee O'Konski, to whom all injuries were supposed to be reported. However, the phone disconnected before the applicant could talk to O'Konski, and the applicant decided he would take care of it later.

The applicant was in pain, but he decided to press ahead with his driving assignments, which were to take him to Arizona, then California, then back to Appleton, Wisconsin. The back pain worsened during this trip, and on Sunday, June 6, 1993, he stopped at the farm of a friend in Minnesota to rest his back.

The friend, Dennis Wreps, testified that he recalled this visit and the exact date, because June 6th is his birthday. Wreps credibly testified that the applicant crawled out of his truck and was as white as a sheet. He told Wreps his back was killing him, and he laid on a picnic table for about two hours. Wreps offered to take him home but the applicant told him he didn't want to leave his truck. Then the applicant left.

The applicant drove to the employer's business in Marshfield on June 7, 1993, and the first person he saw in the employer's office was the safety supervisor, John Jerman. He told Jerman about the injury and Jerman told him to tell Koch, so that another driver could be found to take the trailer to its final destination in Appleton. Koch told the applicant to talk to the fleet supervisor, Kevin Lieders. The applicant told Lieders he had hurt his back and wanted to go home, and Lieders told him that would be okay, so the applicant went home.

At the employer's request, Dr. Samuel Idarraga examined the applicant on August 24, 1993. He diagnosed low back pain due to degenerative discs aggravated by the work injury of May 27. 1993. He estimated permanent partial disability at three percent. The applicant's two treating physicians, Dr. William Davis arid Dr. Timothy Harbst, diagnosed low back and leg pain with evidence of S-1 radiculopathy. A CT scan showed a small disc herniation at L-5, partially effacing the left nerve root as it exits. Dr. Davis and Dr. Harbst each assessed eight percent permanent partial disability.

The commission consulted with the administrative law judge, who indicated that he denied the applicant's claim because he was not convinced that the applicant had reported an injury on May 27, 1993, and he accepted the testimonies of the fleet supervisor, Kevin Lieders, and the safety supervisor, Dave Poehnelt. Lieders testified that on the morning of June 8, 1993, the applicant asked him if he could have "a few weeks" or "a couple of weeks" off work in order to try a job with a different employer. Poehnelt testified that a week or two weeks prior to the applicant's last work day, the applicant telephoned him at work and asked for a two or three month leave of absence, without giving a reason for the request. From the testimony of Lieders and Poehnelt, the administrative law judge inferred that the applicant faked his work injury in order to obtain time off work. The commission finds that the evidence supports opposite inferences.

Dennis Koch did recall the applicant telephoning and reporting the injury to his back as a result of "bottoming out" in the truck. Accordingly, even the employer's witness verified that the applicant reported the work injury. The medical opinions unanimously document a work-related back injury, and the testimony of Dennis Wreps adds additional credibility to the applicant's version of events. It is not credible that the applicant would have asked Kevin Lieders for a few weeks off on June 8, 1993, in order to attempt a new job. At this time the applicant was suffering the effects of his back injury, and as he credibly testified, he was happy with his job with the employer. It was the best paying job he had ever had. Lieders' testimony does not track with the testimony of Poehnelt, in that Poehnelt testified that the applicant asked for two or three weeks off, while Leiders testified that the applicant asked for two or three months. The applicant's description of his injury and its effects is credible.

Dr. Harbst indicated in his WC-1G-B that the applicant had reached a healing plateau as of October 27, 1993. Accordingly, temporary disability was due for the period between June 7, 1993 and October 27, 1993, but this was previously paid.

Dr. Idarraga's assessment of three percent permanent partial disability is accepted as credible for this non-surgical back injury. Dr. Idarraga restricted the applicant to occasional lifting of 20 pounds and frequent lifting of 10 pounds. Dr. Idarraga's opinion is vague with regard to the applicant's current ability to tolerate prolonged sitting, and based on that vagueness, Dr. Harbst's restriction of up to three hours sitting in one day is accepted as credible.

The applicant is an older worker with a high school education and a valid commercial driver's license. Except for working in a factory for three months after graduating from high school, his employment history consists exclusively of various truck driving jobs. He reported to the employer's vocational expert on January 23, 1995, that he had recently worked for five days driving a pickup truck for $6.78 per hour. He met an individual from the Department of Vocational Rehabilitation and underwent some testing, but has not maintained contact with that department. His attempts to secure employment have been sporadic. In April 1994, the employer offered him a sedentary, position within 85 percent of his previous earnings, but the applicant refused the offer. He refused it because it would have required him to move from his long-time home in Dodge, Wisconsin to Marshfield, and because he has two elderly, infirm parents whom he does not want to leave. He was averaging approximately $613.00 per week in his employment with the employer, working in excess of 50 hours per week.

The applicant had reasonable cause for refusing the employer's job offer which would have required him to change his long-time residence and move away from his ailing parents. He has lost the ability to perform long-distance truck driving duties, but he is capable of performing full-time work in employment such as an assembler, service writer, production or parts clerk, or shipping and receiving clerk. His access to the job market has been diminished by the effects of his work injury, but he has also demonstrated less than a full commitment to obtaining suitable employment. Balancing all of the relevant factors, Aloha Daniels' assessment of 35 percent loss of earning capacity is accepted as credible.

The applicant is therefore entitled to three hundred fifty weeks of compensation at the applicable rate of $152.00 per week, for a total of $53,200.00. The insurance carrier previously paid $4,560.00 in permanent partial disability, leaving a balance of $48,640.00. From this balance a 20 percent attorney's fee is due in the amount of $9,728.00, less an interest credit of $569.16, for a present value attorney's fee due now in the amount of $9,158.84. Costs are also due the applicant's attorney in the amount of $1,652.67. The accrued permanent partial disability due the applicant as of March 24, 1997, amounts to $16,222.53, with the unaccrued balance of $21,036.80 to be paid in monthly installments of $658.67 beginning April 24, 1997.

Unpaid medical expenses are also due as follows:  To Family Medicine of Winona, P.C. (Dr. Davis) the sum of $526.60; to Gundersen Clinic, Limited, the sum of $37.80; and to Goltz Pharmacy of Winona the sum of $320.71. The applicant listed a claim for $100.00 in "mileage" expense, but no details in support of such claim were submitted and therefore the claim must be denied.

In addition, the applicant testified that he began receiving Social Security Disability Income (SSDI) in November 1993, which would result in an offset of worker's compensation benefits pursuant to section 102.44 (5), Stats. However, department records do not verify receipt of SSDI. This may be an administrative oversight, and the compensation ordered paid in this order is subject to recomputation should investigation by the employer or insurance carrier reveal that the applicant did receive SSDI subsequent to October 27, 1993. The order will be left interlocutory with respect to this issue.

Dr. Davis and Dr. Harbst indicated that additional medical treatment attributable to the effects of the work injury may be necessary. Accordingly, the order will also be left interlocutory with respect to additional medical treatment and the possibility of additional disability.

NOW, THEREFORE, this

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation the sum of Sixteen thousand two hundred twenty-two dollars and fifty-three cents ($16,222.53); to the applicant's attorney, Michael Ehrsam, fees and costs in the total amount of Ten thousand eight hundred eleven dollars and fifty-one cents ($10,811.51) ; to Family Medicine of Winona, P.C., the sum of Five hundred twenty-six dollars and sixty cents ($526.60); to Gundersen Clinic, Limited, the sum of Thirty seven dollars and eighty cents ($37.80); and to Goltz Pharmacy of Winona the sum of Three hundred twenty dollars and seventy-one cents ($320.71)

Beginning April 24, 1997, and continuing monthly thereafter, the employer or its insurance carrier shall pay to the applicant the sum of Six hundred fifty eight dollars and sixty-seven cents ($658.67), until the unaccrued compensation amount of Twenty-one thousand thirty-six dollars and eighty cents ($21,036.80) has been paid.

Jurisdiction is reserved for such further findings and orders as may be warranted, including recomputation pursuant to sec. 102.44 (5), Stats.

Dated and mailed March 19, 1997
lokenla . wrr : 185 : 1  ND § 5.23

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

cc:
Attorney Thomas W Bertz
Attorney Michael E Ehrsam

Appealed to Circuit Court.  Affirmed, November 26, 1997.

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