Wis.LIRC WC Decision: Fay - August 5, 2008 -ND §§ 5.31, 8.33 --Permanent Total Disabilty; Nonschedule Injury--Interlocutory Orders--Applicant failed to make a prima facie odd-lot case where no evidence applicant's condition changed since time of earlier order awarding 40 percent LOEC; interlocutory order appropriate, however, because applicant's condition could deteriorate in future. Different standards apply for finding total disability under WC law and social security law.

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

LANI C FAY, Applicant

EMERSON ELECTRIC CO, Employer

EMERSON ELECTRIC CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-028695

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 August 5, 2008
fayla . wsd : 175 : 8 ND ?? 5.31, 8.33

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review the administrative law judge erred in determining that on the basis of the record presented she could not find the applicant has anymore than 40 percent loss of earning capacity found by the commission's order in 2004, and there is no indication that the applicant's physical condition has changed significantly since 2003 due to her work injury on March 15, 2000. The applicant contends in her petition for commission review, the employer failed to rebut her claim for permanent total disability on an odd lot basis since the applicant had established her prima facie case. However, the administrative law judge appropriately found the applicant had not met her burden to establish a prima facie case to establish that she was permanently and totally disabled on an odd lot basis. The administrative law judge appropriately noted that in order to change the commission's prior findings of 40 percent loss of earning capacity, the administrative law judge needed to find that there has been a substantial change in the applicant's abilities to perform work, and that the changes were due to the progression of the work-related injury of March 15, 2000.

The evidence indicates that following her functional capacity evaluation in July 2004, the applicant's restrictions were somewhat greater than they had been previously. Dr. Merritt, the applicant's treating physician, had found at the previous hearing the applicant could work at a sedentary to light level, and that her restrictions should be considered permanent. The applicant testified in the current case of her home gardening and sewing activities, which established that she had the ability to kneel and squat to perform gardening activities for up to four hours per day, although she does have help from time-to-time and she does take breaks. The applicant's testimony painted a picture of an active person involved to a large extent in a variety of gardening activities throughout the season which includes bending, stooping, kneeling and lifting. The commission finds the applicant's testimony of her activities consistent with Dr. Haffar's assessment of the applicant's restrictions and abilities. Dr. Haffar, who examined the applicant on behalf of the employer, opined the applicant could work full-time at light duty with the restrictions noted in her functional capacity evaluation.

The fact the applicant has been found totally disabled for social security purposes, does not establish that she is permanently and totally disabled on an odd lot basis for worker's compensation purposes. The administrative law judge appropriately noted the standards for finding total disability are very different between the worker's compensation act and the social security disability law. In addition, the administrative law judge also correctly noted the applicant has longstanding problems with depression and migraines, as well as occasional symptoms of carpal tunnel, none of which have been shown to cause disability, but they may have been considered by the social security administration in assessing disability.

Given the evidence in the applicant's functional capacity evaluation, as well as her MRI report, which did not show any further breakage or disc herniation, and based on Dr. Haffar's assessment, and given the testimony and evidence of the applicant's abilities, the evidence presented does not establish that the applicant has suffered more than 40 percent loss of earning capacity as a result of her work-related back injury in 2000. The evidence does not indicate the applicant has made any further attempts to obtain vocational rehabilitation training as the administrative law judge found in the applicant's prior case. Further, the applicant has made no effort to find work in accordance with her restrictions as she admitted in her testimony. The evidence indicates the applicant has not established a prima facie case for permanent total disability on an odd lot bass, and based on Dr. Haffar's assessment and her current physical abilities, the commission affirms the administrative law judge's findings that no further assessment of loss of earning capacity is appropriate. If the applicant's condition should deteriorate in the future there may be a basis for another assessment and possible claim for further loss of earning capacity due to the work injury in 2000, and an interlocutory order was appropriately entered in this matter.

cc: Attorney Terence Bouressa
Attorney David Weber

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