ELIAS ZARATE, Applicant

DELPHI CORP, Employer

DELPHI CORP, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated November 29, 2007. At issue is eligibility for temporary total disability from August 20, 2002 to July 15, 2003, and permanent partial disability at 4 percent as compared to total disability and reimbursement for out-of-pocket co-pays the applicant made on his treatment expenses.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and modifies in part the Findings and Order of the administrative law judge. The commission makes the following:

"Pursuant to Wis. Stat. § 102.30(3) the employer shall restore the employee's sick leave since the applicant did not elect the use of sick leave benefits in lieu of worker's compensation."

NOW, THEREFORE, this

Dated and mailed August 18, 2008
zaratel . wmd : 175 : 8 ND § 5.4

James T. Flynn, Chairperson

/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 the applicant did not suffer any permanent partial disability as a result of his work injury. The applicant asserts the administrative law judge should have credited the opinion of Dr. Gopal, who evaluated the applicant and prepared a report dated October 10, 2006. Dr. Gopal opined the applicant suffers from pain and discomfort in the lower back and left sciatic area of a chronic nature, due to the traumatic injury at work on August 20, 2002, and assessed the applicant with 4 percent permanent partial disability. Dr. Gopal noted the applicant had received some permanent partial disability for back pain dating to 15 years ago, which may have been 5 percent, and Dr. Gopal awarded the applicant an additional 4 percent permanent partial disability due to his work injury. However, the evidence indicates the applicant has a long history dating back to 1979 of lower back pain and paresthesias, with treatment and evaluations again in 1988 and the 1990's. The applicant admitted that he had a long history of lower back problems.

The applicant's EMG studies found some evidence of mild radiculopathy, but the applicant's objective tests did not reveal any breakage or disc herniation, as a result of the work injury in August 2002. The commission credits Dr. Yuska's assessment, the applicant's ongoing back pain that he is reporting currently, is similar to the symptoms and problems he was reporting prior to the work incident in August 2002. Dr. Yuska opined the applicant ongoing symptoms are a manifestation of his degenerative disease of the spine, and at worst a motor vehicle accident in August 2002 caused a temporary aggravation. Dr. Yuska stated there was no evidence of permanent tissue breakage due to the work incident on August 20, 2002, and given his normal EMG's and radiographic studies only showing degenerative changes, there was no permanent partial disability due to the work incident on August 20, 2002.

In addition Dr. Khatri, an orthopedist who treated the applicant, stated in his report dated June 2, 2003, that he was unable to determine the cause of the applicant's back pain or leg weakness. Based on Dr. Yuska's assessment and the applicant's objective tests, the commission finds that the administrative law judge appropriately determined the applicant did not suffer any permanent disability as a result of the work incident on August 20, 2002 to November 20, 2002, when the applicant reached a healing plateau, and there was evidence in the applicant handwritten treatment notes on November 20, 2002 of his ongoing complaints of back pain. It does not appear from the medical records, the applicant's back complaints worsened but rather stabilized after November 20, 2002. The applicant did report some improvement during the winter and spring of 2003 with his back pain, although he continued to state that it was bothersome. Dr. Yuska appropriately found that based on the fairly minor motor vehicle accident on August 20, 2002, the applicant suffered a temporary aggravation of his preexisting lower back problems, which had resolved by November 20, 2002. Therefore, the administrative law judge appropriately dismissed the applicant's claim for medical expenses for the work incident on August 20, 2002 beyond November 20, 2002.

The commission has amended the administrative law judge's order to reflect the employer shall restore the applicant's sick leave benefits he received in lieu of temporary disability benefits. Pursuant to Wis. Stat. § 102.30(3), if an employee receives sick leave benefits instead of temporary disability benefits for a period when temporary disability benefits are due, the employer must restore the employee's sick leave unless the employee elects sick leave benefits in lieu of worker's compensation. The applicant indicated in his petition for commission review that he did not elect to receive sick leave; but rather he was forced to use sick leave because the employer denied his claim for worker's compensation benefits. The evidence does not reflect that the applicant elected to use sick leave benefits. The administrative law judge deducted the sick leave payments from the total amount of temporary total disability benefits due which was appropriate. However the commission has ordered the employer to restore the applicant's sick leave benefits used in lieu of temporary disability pursuant to Wis. Stat. § 102.30(3).

cc:
Attorney David B. Bangert
Attorney Paul R. Riegel

Appealed to Circuit Court.  Action dismissed November 21, 2008.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/08/20