STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HARRY THOMAS, Applicant

KOEHRING CO, Employer

TRAVELERS INSURANCE, Insurer
c/o TRAVELERS CLAIM SERVICES

WORKER'S COMPENSATION DECISION
Claim No. 1986-057082


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, except that it makes the following modifications:

1. Delete the last sentence of the first paragraph beginning on page 4 of the ALJ's decision, and substitute, as a new paragraph:

"The applicant, again, has undergone a fusion at C4-5 and C6-7 and a repeat fusion at C4-5 to treat his work injury. Dr. Gore describes the applicant's condition as guarded and states in his January 12, 1998 letter to the insurer that the applicant's condition may get worse. See exhibit B. Under these facts, an interlocutory order is warranted. This order shall therefore be left interlocutory to permit orders or awards for additional temporary disability, permanent disability, and medical expense as may arise in the future."

2. Delete the ALJ's Order and substitute the second and third paragraphs of the commission's Interlocutory Order set out below.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

The application as it pertains to the applicant's current claim for permanent disability based on loss of earning capacity is dismissed.

Jurisdiction is retained for further orders and awards as are warranted and consistent with this decision.

Dated and mailed July 31, 2007
thomash : 101 : 2  ND § 5.31

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The applicant was born in 1944. He injured his neck at work in April 1986, and has since undergone fusions at C4-5 and C6-7, and a refusion at C4-5. After his injury, the employer (and its successors) provided the applicant work as a janitor within his restrictions until its plant closed in 2003. Prior to the plant closure, the applicant brought a claim for loss of earning capacity, which was dismissed under Wis. Stat. § 102.44(6). (1)   To date, the employer and its insurer (collectively, the respondent) have paid permanent partial disability at 30 percent compared to permanent total disability.

The applicant now claims permanent total disability on an odd lot basis. Under the "odd-lot" rule, when a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id.

The supreme court reiterated its adherence to the odd lot doctrine in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29. In Beecher, the court held that the commission cannot require a worker to show evidence of a job search or efforts to find work as part of the prima facie case. Id., at ¶¶ 44, 48, 57, 58. (2)   In its decision, the court analogized the odd lot evidentiary rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption the worker is permanently totally disabled arises. Id., at ¶¶ 53, 54.  In rebutting the presumption, the employer bears a burden of persuasion on the issue of whether the worker is in fact employable and that jobs do exist for him or her. Id., at 55.

The starting point in determining whether a worker has made a prima facie odd lot case, then, is the applicant's capacity after the injury, which is normally determined by looking at his work restrictions. In this case, the applicant's doctor filed a practitioner's report in November 2003, which referenced restrictions set in an earlier report in done in January 2000. That report, in turn, refers to a number of office notes and work slips from 1993. The final set of restrictions from the dates listed in the January 2000 practitioner's report are the restrictions set on June 17, 1993,  (3)  in both a release slip and office note. These are:

Again, the applicant worked as a janitor with these restrictions until the employer's plant closed in December 2003. While he was working, in 2000, his doctor set additional restrictions related to the applicant's shoulder injury which also restricted the applicant from using his arms for overhead work or work away from the body.

The respondent's vocational experts are Sarah E. Holmes and Timothy J. Riley. They state:

Dr. Gore assigned permanent restrictions which allow Mr. Thomas to lift a maximum of 30 pounds. Additionally, Harry is to avoid working with his arms overhead, repeated neck motions, and neck extension (looking up). It is my understanding that these work restrictions were assigned with regard to the neck injury.... Mr. Thomas functioned successfully as a janitor at JLG working within the restrictions assigned by Dr. Gore until the time of the plant closure. Within the restrictions assigned by Dr. Gore, Harry is able to perform sedentary, light and select medium work. A significant portion of the labor market is comprised of sedentary and light work.

Holmes and Riley felt that with Dr. Gore's restrictions, as well as the applicant's work history and educational background, the applicant would be a qualified candidate for jobs as a security guard, counter and retail clerk, hotel and motel desk clerk, retail sales clerk, and information clerk. In addition, they opined the applicant would be qualified for select janitor jobs. Holmes and Riley added that these jobs were regularly and continuously available in the general labor market. They acknowledged, however, that the applicant would be eliminated from many production positions which require lifting more than 30 pounds or repetitive neck motions. Summing up, Holmes and Riley saw a 30 to 35 percent loss of earning capacity.

The applicant's expert is Michael J. Ewens. He first noted that Dr. Gore, the only physician who assigned restrictions following the surgery, set restrictions at no lifting greater than 30 pounds, no neck extension or repetitive neck movement, and no overhead activity. He noted, too, that in December 2000, the doctor set restrictions related to the shoulder injury which prevented using the arms for overhead work or work away from the body. Exhibit A, page 6. He concluded:

These restrictions would not enable [the applicant] to return to the type of employment he was able to perform in the past. He was only able to perform that employment, based upon accommodations provided by the employer. This opportunity would not be available in the general labor market.

Mr. Thomas is now 61 years old. He has a high school education and has acquired nominal skills to perform alternative employment. Although the restrictions provide an ability to lift up to 30 pounds, without an ability to move the neck or perform overhead work, [the applicant] will be unable to access light or medium work. In addition, he does not have the education to, nor skills to perform sedentary work.

When considering employment options based upon work restrictions from Dr. Gore, these would be limited in scope and not sufficient to provide a reasonable labor market. For that reason, [the applicant] would qualify only for "odd lot" employment. As a result, he would sustain a permanent total loss of earning capacity. [Underlining supplied; italics in original.]

Exhibit A, page 7.

Crediting the report of respondent's experts Holmes and Riley, the ALJ concluded the applicant has sustained loss of earning capacity at 30 percent, the amount already paid by the respondent for permanent partial disability. The ALJ noted applicant's expert Ewens assumed the applicant was "without an ability to move the neck" when in fact Dr. Gore's restrictions only limited neck extension (which is bending the neck backward to look up) and repeated neck motion. The ALJ also felt the applicant could do the primarily clerical jobs listed in exhibit 1.

On appeal, the applicant contends that the "without an ability to move the neck" restriction cited by applicant's vocational expert Ewens is shorthand for Dr. Gore's actual restriction of "no job that requires neck extension or repeated neck motion." The applicant argues that therefore the applicant has made his prima facie case and employer has failed in its burden of persuasion of showing the applicant "is actually employable and that there are actual jobs available to him." Beecher v. LIRC, 273 Wis. 2d 166, 44.  (4)

After carefully considering the record, the commission adopts the ALJ's conclusion that the applicant has not made his prima facie case. The commission questions Mr. Ewens' conclusion that the applicant lacks the skills and education necessary to do sedentary work, which is based on the assumptions that all sedentary work is skilled or requires education and that the applicant must be ruled out as a candidate for clerical work because he has never done it. More importantly, like the ALJ, the commission notes that Mr. Ewens stated his opinion based on the assumption of no neck movement, rather than no neck extension and no repeated neck movement. The commission cannot conclude these are equivalent formulations of the same set of restrictions. To equate Dr. Gore's restrictions with "no neck movement" reads out Dr. Gore's express restriction of "no repetitive neck movement." (5)

Because the applicant failed to make his prima facie case, the burden does not shift to the respondent to show there is work actually available to him. The Kadwit and Hamberlin cases (6) cited by the applicant, which address an employer's burden in rebutting a prima facie case, do not apply. However, even if the applicant were held to make a prima facie case, the evidence in this case rebuts the arising presumption of permanent total disability. Here, the applicant was offered work as a janitor by a temporary help agency. The applicant did not accept the placement because it was temporary not because he could not do it. Indeed, he testified that when he was laid off he felt he could find work as a janitor. As someone actually working in that field, it is not unreasonable to conclude he might have some idea of the physical demands posed by that work and his employment prospects. Yet after rejecting the temporary janitor work, he simply stopped looking. This, combined with the opinion of the respondent's experts, satisfied the employer's burden of proving that actual jobs do exist within the applicant's restrictions.

In his petition for review, the applicant requested an interlocutory order, which the respondent opposed except with respect to medical expenses. Given the nature of the injury and resulting fusion surgeries, an interlocutory order is appropriate, (7) and the commission so amended the ALJ's decision.

cc:
Attorney David L. Weir
Attorney Ahmed J. Quereshi



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Footnotes:

(1)( Back ) Thomas v. Koehring PT Washington, WC claim no. 86-057082 (LIRC, February 7, 1992), affirming ALJ Janine M. Smiley's order dated October 24, 1991.

(2)( Back ) The court also held that the various factors set out in Wis. Admin. Code § DWD 80.34 also do not apply in determining whether the applicant has made a prima facie case. Beecher, at 273 Wis. 2d 136, ¶¶ 40 to 47. Rather, "in making the ultimate determination of eligibility for benefits, the agency considers any factors enumerated in DWD § 80.34 that are consistent with the odd-lot doctrine, or more broadly if the agency concludes that the claimant is not prima facie odd-lot or the odd-lot prima facie case has been rebutted." Id., at 273 Wis. 2d 136, 57.

(3)( Back ) A later set of restrictions from October 6, 1993, were slightly different, providing for (1) no lifting over 30 pounds, (2) avoiding repetitive neck movement and working with arms overhead, and (3) avoiding driving forklift.

(4)( Back ) The Beecher court also referred to this as the employer's duty to show "there is an actual job that the claimant can do" or that "a job exists that the applicant can do." Beecher, at 273 Wis. 2d 171, ¶¶ 54, 55. An employer may show "that there exists suitable employment" "by bringing forward evidence of actual job availability." Ibid.

(5)( Back ) The supreme court holding in Mireles v. LIRC, 2000 WI 96, ¶¶ 63, 64, 71, 237 Wis. 2d 69, suggests a person may combine scheduled and unscheduled injuries in making a claim of permanent total disability. Thus, it might be argued that the vocational experts could have considered the restriction against the use of arms away from the body from the later shoulder injury as well as the restrictions from the earlier neck injury in determining the extent of lost earning capacity. However, while Mr. Ewens refers to the "no use of the arms away from his body" restriction in his report, he did not consider that restriction in stating his ultimate loss of earning capacity rating. Nor did respondent's experts Holmes and Riley. Consequently, the commission cannot conclude that that restriction is vocationally relevant in this case regardless of the merits of an argument based on Mireles.

(6)( Back ) Kadwit v. Sentry Foods, WC claim no. 1994-022462 (LIRC, September 25, 2003); Hamberlin v. Tower Automotive, WC claim no. 1998-037455 (LIRC, November 10, 2004).

(7)( Back ) Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:

. . . Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards.

In general, an interlocutory -- as opposed to final -- order to permit future disability and medical expense awards is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). However, the level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). When the words 'in its discretion' were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included an explanatory note to its annotated version of the Worker's Compensation Act stating:

This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate.

DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27.

 


uploaded 2007/08/27