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

PATRICIA A RETZER, Applicant

WOMEN CARE, Employer

CASUALTY RECIPROCAL EXCHANGE WISF, Insurer

TRAVELERS CASUALTY INS CO, Insurer
 

WORKER'S COMPENSATION DECISION
Claim No. 2003-018788


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.

ORDER

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

Dated and mailed July 10, 2008
retzerp . wsd : 101 : 1 ND § 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case presents two issues, (1) which of two work-related injuries (and hence which insurer) is responsible for the additional disability the applicant now claims and (2) the extent of disability.

Regarding the first issue, the ALJ found the applicant's disability was caused by the applicant's March 21, 1995 injury when she tripped and stumbled at work. The ALJ reached that conclusion largely because the applicant was symptomatic and already on restricted duty, including a restriction to less than full time--and had been for a substantial period--when the April 25, 2003 work injury occurred. This led the ALJ to conclude the applicant's need for the refusion and her current disabling condition was the result of the normal progression of her 1995 injury even though it occurred after the April 2003 injury. Travelers Casualty Ins. Co. (Travelers), the insurer on the risk for the 1995 injury, argues that the greater weight of the medical opinion points to the 2003 injury as cause of the applicant's disability. However, after examining the medical records, including the supportive opinions of Dr. Barron and to some extent Dr. Maiman, the commission agrees with the ALJ's finding on this issue.

Travelers also argues that the applicant's claim for permanent total disability should be denied because the applicant claims she did not realize that she could work within Dr. Zoeller's restrictions and because she neither sought reemployment with the employer nor tried to obtain retraining once she was released with those restrictions.

The extent to which an injured worker claiming permanent total disability is required to try to find work within the restrictions his or her doctor imposes was recently addressed by supreme court in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136. In Beecher, the supreme court reiterated its adherence to the "odd lot" doctrine or rule as it applies to claims of permanent total disability. Under that doctrine, 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--in other words, the worker shows that that he or she is an "odd lot" worker--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 Beecher court also made three points quite clearly. First, the commission may not require a worker to show evidence of a job search or efforts to find work as part of the worker's prima facie case. Beecher v. LIRC, 273 Wis. 2d 136, at ¶¶ 44, 48, 57, 58. Second, the court analogizes the odd lot rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption that the worker is permanently totally disabled arises. Id., at 273 Wis. 2d 136, ¶¶ 53, 54.(1) Third, once the presumption arises, 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 273 Wis. 2d 136, 55.

Consistent with the Beecher decision, then, the commission must first determine whether the applicant presented a prima facie case for permanent total disability. In this case, the applicant has made her prima facie case. The applicant, who was born in 1959, is no longer a younger worker. She is a high school graduate with no further formal training or education. Her work restrictions are very limiting. Mr. Campbell's report seems to assume the applicant will find an employer who will let her lie down at work,(2) but the commission declines to make that assumption. Nor is the commission inclined to conclude the applicant did not make her prima facie case--or that the odd-lot presumption did not arise--because the applicant failed to contact the employer about re-employment when she was released subject to restrictions. The employer had terminated her employment, and the Beecher holding suggests it is an error of law to require a job search--and by extension an attempt at vocational retraining--as part of the prima facie case.

Because the applicant made her prima facie case, the burden shifts to the respondent to show that there exists suitable employment for the applicant (Beecher, at 55), that there is an actual job that the applicant can do (id., at 54), or that the applicant "is actually employable and that there are actual jobs available to [her]" (id., 44). The commission acknowledges that the employer's interim clinic administrator, Ms. Thomas, testified that the employer would have almost certainly rehired her if she had re-applied.

In essence, the employer suggests that it has satisfied its burden by showing the failure of the applicant to follow the want ads and to reapply for a job with the employer after her discharge, coupled with Ms. Thomas's testimony suggesting the employer would have acted favorably on an application from the applicant. The commission cannot sustain that contention in this case. The employer had discharged the applicant. It presumably knew her claim was pending and that she had been released with restrictions as its vocational experts (Schuyler and Campbell) had addressed them. It also knew it had a job opening. Ms. Thomas's testimony about rehiring the applicant would have been more credible--and gone much further toward rebutting the applicant's prima facie case--if the employer had contacted the applicant with an offer, or at least asked her to come in and see what was available, as soon as it had an opening rather than first making a qualified offer on the day of hearing.

cc: Attorney Dennis Wicht
Attorney Lisa Kinney
Attorney John Griner


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Footnotes:

(1)( Back ) The Beecher court stated:

Balczewski holds that certain basic facts---the claimant's injury, age, education, capacity, and training---may in combination demonstrate an inability to secure continuing, gainful employment such that these basic facts constitute prima facie evidence of another (presumed) fact, namely that the claimant is permanently and totally incapable of earning a living. Ordinarily this is accomplished through expert testimony. The employer may introduce expert evidence in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising. (Emphasis added).

Beecher v. LIRC, 273 Wis. 2d 136, 54.

(2)( Back ) In his report at Travelers exhibit 3, page 4, Mr. Campbell identifies the main impediment to employment by Drs. Clark and Zoeller as the restriction against prolonged sitting. He adds, though, that

I would also have to assume that, with respect to one comment by Dr. Zoeller, Ms. Retzer would be able to find a setting which provides a break area if she needs to be recumbent at four-hour intervals. 

 


uploaded 2008/07/18