HAROLD R. HURD, Applicant

HARLEY DAVIDSON INC, Employer

VALLEY FORGE INS CO, 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 28, 2008
hurdha . wsd : 101 : 9 ND § 5.23

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant was born in 1947, and worked for the employer for almost 33 years before hurting his back while lifting a 25-pound part at work on July 8, 2004. While the issue of whether the applicant in fact sustained disability from an injury arising out of his employment was at issue at the hearing--and the finding a compensable injury occurred was the finding cited as erroneous in the employer's petition for review filed by the employer and its insurer (collectively, the respondent)--the respondents do not focus on that issue. Instead, the respondent argues that the applicant's permanent disability award should be limited to his permanent partial disability on a functional basis as he has removed himself from the labor market and thus disqualified himself for an award for permanent partial disability on a vocational basis for loss of earning capacity.

After his injury, the applicant treated conservatively with Cully White, D.O. Dr. White eventually released him to work with a 30 pound lifting limit subject to the requirement he change his position every 30 minutes. The applicant testified, however, that he limits his lifting to ten pounds due to continuing back pain. He has not worked, or really looked for work, since the injury. Nor has he contacted the division of vocational rehabilitation (DVR) for employment assistance.

Indeed, the applicant testified that he will never work again, and that even if the employer offered him work he would not accept it because "my body says I can't." Transcript, page 43. He does not agree with Dr. White's restrictions and believes he could not work within them. He has not yet formally "retired"--because he was waiting to see what happened with his worker's compensation claim--but he does receive social security disability income.

The applicant never presented his doctor's restrictions to the employer nor did he present himself for work. As a result, the employee's supervisor (Lisa Hipke) testified, that the employer never offered him work. Transcript, pages 59 et seq. Ms. Hipke further testified that the employer could have accommodated the restrictions set by Dr. White, and that it would have done so at applicant's current rate of pay on a permanent basis.

In the current case, the ALJ awarded loss of earning capacity at 65 percent, which corresponds to the intersection of the loss of earning capacity figure given by the respondent's labor market expert for the restrictions set by Dr. White and the restrictions given by the medical expert retained by the insurer (Dr. Borkowski), under the assumption that the applicant would not return to work for the employer. As noted above, the respondent has filed an appeal, while the applicant asks the commission to affirm the ALJ's order in all respects.

The commission has considered Ms. Hipke's testimony that the employer would have offered him work within his restrictions if he had applied. But the fact is it did not offer him work, even though it had the right to demand the restrictions from his doctor and presumably was aware of them well in advance of the hearing. Under Wis. Stat. § 102.44(6)(a) and (g), if a time-of-injury employer makes a good faith offer of employment paying at least 85 percent of an injured worker's pre-injury wage, the worker may be ineligible for an award for permanent disability based on loss of earning capacity. However, no offer was made in this case, and the commission declines to read Wis. Stat. § 102.44(6)(h) to disqualify an applicant based on his lack of efforts to look for work.

In support of its claim that the applicant is ineligible for an award for loss of earning capacity because he has removed himself from the labor market, the employer cites Neil Anderson v. GMC, WC Claim no. 92068305 (LIRC, November 29, 1993). However, in Anderson, the worker there formally retired and moved out of state, effectively precluding any offer of re-employment by the employer. Further, Wis. Admin. Code DWD § 80.34(1) includes efforts to find suitable work as one of the criteria to consider in rating loss of earning capacity. That is, Wis. Admin. Code DWD § 80.34(1)(h) directs the commission to consider efforts to find work as a factor in setting an award for loss of earning capacity, but does not mandate an outright denial of an award for loss of earning capacity based on an injured worker's effort to find work following his or her injury.

Failing an outright denial of loss of earning capacity, the respondent argues that the commission should reduce the award drastically based on the applicant's poor efforts, or non-effort, to find work. However, the commission observes that the ALJ adopted the figures of the employer's own expert, Barbara Lemke, in awarding loss of earning capacity. Presumably, Ms. Lemke was aware of the applicant's efforts to find work. While Ms. Lemke suggested the applicant should not receive an award for loss of earning capacity if he returned to the employer, Harley Davidson, at his former job, she did opine that 65 percent would be an appropriate figure if he found work in the open market. Exhibit 5, report of Lemke, page 10, conclusions 3 and 4. The commission declines to reduce the award--based on poor efforts to find work--below what the respondent's expert estimates the applicant's vocational loss to have been had the applicant actually found work.

cc: Attorney Michael L. Bertling
Attorney Joseph Danas, Jr.

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