SHEILA KLABECHEK, Applicant
EXTENDICARE HEALTH SERVICES INC, Employer
In March 2006, the applicant filed a hearing application seeking, among other things, compensation for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the claim on April 26, 2007.
The employer conceded jurisdictional facts. While the employer's insurer paid some disability compensation, it later contested the claim based on the opinion of its medical expert who opined the applicant did not sustain an injury arising out of her employment with the employer. The disability claim was eventually settled by compromise. On July 26, 2007, the ALJ issued his decision dismissing the claim based on an unreasonable refusal to rehire under Wis. Stat. § 102.35(3).
The applicant filed a timely petition for review. 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 makes the following:
The applicant, who was born in 1947, underwent a rotator cuff surgery in 2000 following an injury while caring for her terminally ill husband. She subsequently became certified as a nurse's assistant (CNA), and began working for the employer in June 2003.
The applicant began to note an onset of right shoulder pain in June and July 2004, and began seeking treatment. She sought treatment with Douglas A. Fehrman, M.D., whose July 14, 2004 note reports:
The patient is a pleasant 57-year old right-hand dominant female who injured her right shoulder approximately four years ago. She had pain, at that time, which was treated conservatively and eventually was treated with right shoulder arthroscopy on 11-13-2000. She underwent a completion of a biceps tendon rupture as well as subacromial decompression and mini open rotator cuff repair. She did very well following this. She has had no problems until recently. For the past few weeks, she has noticed there is an indolent pain in the right shoulder. She has had difficulty with cross-center motion and lifting patients at work. She reported this as a worker's comp injury since she seemed to notice the occurrence was happening at work. As she continues to work the pain worsens... She denies any other injuries.
Exhibit 1, page 134. For a diagnostic assessment, Dr. Fehrman noted right shoulder injury. He set work restrictions against overhead working with the right shoulder or repetitive pushing or pulling with that shoulder. The employer subsequently shifted the applicant to "transitional" or light duty work after her doctor imposed work restrictions.
In transitional duty, the applicant testified, she would make beds, bring in make up from home and make-up some of the residents, comb residents' hair or brush their teeth, and sing or sit with Alzheimer's patients. She received her normal rate of pay.
The applicant underwent a rotator cuff re-repair on October 11, 2004 by Douglas Fehrman, M.D., and was off work entirely for another 8 weeks. She returned to work doing the same kind of "transitional" or light duty work as she had been doing immediately before the surgery. She worked close to a 40-hour week, though she might work fewer than 40 hours if the patient census was down.
Tom Klug, the administrator of the nursing home where the applicant worked, testified for the employer. He testified that the job requirements for a CNA required the ability to lift 60 pounds unassisted, and to be able to do overhead lifting. He described the light or "transitional duty" the applicant performed while recovering from her injury as duty that "would apply to a person that was injured on the job and it would accommodate whatever restrictions they had while they progressed back to where they could fulfill the whole responsibilities of their positions."
According to Mr. Klug, transitional duty is meant to be temporary; there is no permanent transitional duty. Transcript, page 65. Sometimes, however, a CNA with permanent restrictions might get a different job at the nursing home that would allow him or her to continue in employment after ending transitional employment. Mr. Klug testified that there is a variety of jobs at the employer's facility.
In this case, the applicant continued to work on transitional duty until July 2005. During this time, the applicant's doctor, Douglas Fehrman, issued work restrictions limiting her ability to lift to ten pounds (January 10, 2005), then 20 pounds (April 2005), then 25 pounds (May 2005), and then 30 pounds (June and July 2005).
Gallagher Bassett, the third party administrator for the employer's worker's compensation insurer had the applicant examined by Kenneth Yuska, M.D,(1) whose report dated July 12, 2005, is at exhibit 2. Dr. Yuska offered this synopsis:
Ms. Klabechek is a 58-year old woman, who had her rotator cuff symptoms beginning in 1998. The shoulder rotator cuff tear was confirmed in 1999, with surgery in 2000, and supposedly a good result after surgery. She believes that she was back to full overhead reaching. Gradually the symptoms recurred and by July 2004, there was shoulder pain and difficulty using the arm.
There is a significant risk factor. Ms. Klabechek has used steroid medications both injected into her shoulder and also orally to treat asthma. Steroid medications are known to weaken tissues and are a probable cause for decreased healing in a rotator cuff tear.
Dr. Yuska stated that he thought the applicant's symptoms of increasing pain and decreasing function of the rotator cuff in July 2004 was a manifestation of the prior tear at the same site. However, he rejected the applicant's belief that work was a possible cause of her recurrent tear. He felt that using steroid medication compromised her ability to fully heal her rotator cuff tear and it therefore let loose. He noted there was no history of any work-related incident that "specifically relates to tearing the rotator cuff." Dr. Yuska set work restrictions limiting lifting to 25 pounds up to chest level, and no lifting above chest level. He went on to rate permanent partial disability at five percent compared to loss of arm at the shoulder, though he emphasized "this is not a work-related problem."
Upon receiving Dr. Yuska's restrictions, the employer discharged the applicant by letter dated July 29, 2005. The reason stated in the letter, and reiterated by Mr. Klug at the hearing, is that
Your position as a certified nursing assistant has physical requirements that are not within your permanent physical capacities.
Dr. Fehrman prepared a practitioners' report at exhibit C. In this from report, the doctor affirmatively checked the Lewellyn 3(2) causation box indicating that an event at work precipitated, aggravated, and accelerated her condition beyond normal progression. For an explanation of the event and the diagnosis, Dr. Fehrman refers to his notes. Again, the doctor's July 14, 2004 note reports indicate that the applicant noted the shoulder pain and difficulty while lifting at work and so reported a work-related accident. Dr. Fehrman also stated the injury was "work related" on various medical releases.
In December 2006, the parties compromised the applicant's disability claim. However, her claim for an unreasonable discharge under Wis. Stat. § 102.35(3) was not compromised and remains open.
Wisconsin Stat. § 102.35(3), provides as follows:
102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages....
As stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983), 111 Wis.2d at 278:
Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.
This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the supreme court stated that "after an employee shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employee." West Bend, at 149 Wis. 2d 123.
The first issue is whether the applicant has met her burden by proving she was an employee who has been injured in the course of employment and subsequently is denied rehire. Again, the disability claim in this case was compromised, and the employer has not admitted a compensable injury.(3) Rather, the applicant relies on the opinion of Dr. Fehrman whose practitioner's report states that an "event" at work precipitated, aggravated, and accelerated the applicant's underlying condition beyond normal progression. He refers to his notes for a description of that "event," but his initial treatment note--and the applicant's testimony established--that there was no single traumatic event. Dr. Yuska, of course, opines the tear was not work related.
The applicant's hearing application refers to a "rotator cuff tear caused by patient transfer" and her theory seems to be that her CNA work duties over time weakened her shoulder resulting in the recurrent tear. However, neither Dr. Fehrman's practitioner's report nor his treatment notes actually say that.
This is not a case where a doctor's narrative report opines that occupational exposure over time caused a worker's disability, in conflict with an affirmatively marked box on the form practitioner's report indicating causation by accident or trauma. In such cases, the commission may accept the opinion in the narrative report or letter--despite the practitioner's report that marks the "wrong box".(4)
Here, however, the commission does not read Dr. Fehrman's treatment notes to say that work exposure over time caused the applicant's disability. Instead, Dr. Fehrman merely observed on April 14, 2007 that the applicant reported a worker's compensation injury because "she seemed to notice the occurrence [of pain] was happening at work." This is less than an expert medical opinion on causation, and certainly does not describe an event that precipitated, aggravated, and accelerated her condition beyond its normal progression, so much as the applicant simply seeming to notice shoulder pain while working. On this record, the commission finds more credible the opinion of Dr. Yuska, who states the applicant's recurrent tear was not caused by work.
Because the applicant has not proven she was injured at work, her claim under Wis. Stat. § 102.35(3) must be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
The application for compensation based on an unreasonable refusal to rehire under Wis. Stat. § 102.35(3) is dismissed.
Dated and mailed May 21, 2008
klabesh . wrr : 101 : 1 ND
§ 7.30
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Joseph J. Voelkner
Attorney Cori Lynn Prahl
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