BOOKER T JOHNSON, Applicant

P F T SERVICES INC, Employer

WIS WC UEF, 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 August 23, 2007
johnsbo . wsd : 175 : 9  ND § 5.21

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining that the applicant's change in age does not substantially affect an earlier assessment of loss of earning capacity, and dismissed the applicant's request to amend the earlier loss of earning capacity award and increase it to 70 percent. The applicant asserts that based on the testimony from Mr. Wisniewski, the employer's vocational consultant, the applicant's loss of earning capacity assessment should have been increased from 65 percent to 70 percent. The applicant points to Mr. Wisniewski's testimony that looking at the applicant's restrictions with seven years difference in the age, it would be the same as his former opinion of 60 to 70 percent range but in the higher end of it. However, Mr. Wisniewski also testified that the applicant was in his mid 40's when he first saw him and he is 52 now. Mr. Wisniewski testified that those two ages are not significantly changing the applicant's results, and he noted that the applicant's June 8, 2005 clinic note is the same as the previous restrictions.

Dr. Huizenga stated in the applicant's treatment notes on June 8, 2005 the applicant suffers persistent lumbar and sciatic pain secondary to a herniated lumbar disc and his condition has not significantly changed since he was last seen on November 16, 1998. Dr. Huizenga, the applicant's treating physician, stated the applicant still has the same percentage of permanent impairment and the same permanent restrictions as outlined previously in 1998. The administrative law judge appropriately noted that the applicant testified his symptoms had generally been similar over the last five to seven years. The applicant's most recent treatment note in the record on August 17, 2006 noted that the applicant looks much healthier since he has lost weight, and he walks with a normal gait and stands on his toes and heels. Dr. Huizenga's treatment note on August 17, 2006 stated that the applicant has been walking as much as possible, and since February has lost 64 lbs.

The commission notes that age is one factor to be considered in assessing loss of earning capacity pursuant to Wis. Admin. Code § DWD 80.34. However, in this case the fact that the applicant is several years older than when his loss of earning capacity was first assessed in 1998, is not sufficient to establish that the loss of earning capacity assessment should be increased. Mr. Wisniewski noted in his testimony that the applicant's difference in age from his first assessment of loss of earning capacity up until now is not significantly changing the results. The administrative law judge appropriately noted that there has not been a significant change in Dr. Huizenga's opinion. Given the fact that the applicant's restrictions are substantially the same as they were in 1998, and based on Dr. Huizenga's opinions and treatment notes, and given the applicant's testimony of similar symptoms over the last five to seven years, the evidence was sufficient to raise a legitimate doubt that the applicant's loss of earning capacity assessment should be increased at this time. Therefore the administrative law judge appropriately dismissed the applicant's claim for additional loss of earning capacity with prejudice.

cc:
Attorney John Neal
Attorney Michael C. Frohman

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