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

CANDACE ROBERTSON, Applicant

LAKEWOODS INC, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-040238


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. Both parties filed petitions 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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. In the second paragraph beginning on page 4 of the ALJ's decision, change the references to "Dr. Klee" to "Dr. Harrison".

2. In the first sentence of the third paragraph beginning on page 4 of the ALJ's decision, delete "Dr. Klee dramatically increased the restrictions to" and substitute "Dr. Klee issued restrictions imposing".

3. Delete the first five sentences in the second paragraph beginning on page 5 of the ALJ's decision.

ORDER

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

Dated and mailed August 28, 2008
roberts . wmd : 101 : 1  ND ? 5.31

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant, who was born in 1956, worked as a housekeeper for the employer, a resort near Cable. She was in a car accident on the employer's premises as she was transporting items to the employer's laundry on August 12, 2000. In a previous decision dated December 19, 2003, the commission found that the applicant had injured her cervical spine, also suffered bilateral carpal tunnel injury, in the auto accident. The commission also specifically found, however, that she did not suffer a psychological or psychiatric injury in the accident as she clamed.

As a result of her cervical injury, the applicant underwent a cervical discectomy and fusion at C6-7 performed by Dr. Konmasiewicz in February 2001. The applicant is now seeking permanent disability for loss of earning capacity. She claims she has had a complete loss of earning capacity, and is perm total odd-lot. The applicant's claim, of course, depends in large part on the work restrictions imposed as a result of the work injury.

One of the applicant's treating doctors, Matthew L. Harrison, M.D., a physical rehabilitation specialist, diagnosed status post cervical fusion L5-S1and chronic cervical myofascial pain. In a practitioner's report dated September 21, 2004 (exhibit A), Dr Harrison rated permanent partial disability at 12 percent to the body as a whole (or slightly above the administrative code minimum for her surgery), and issued restrictions permitting:

In a medical note dated January 31, 2006, the applicant's treating neurologist, David R. Klee, M.D., assessed neck pain secondary to the August 2000 motor vehicle accident, dizziness, possibly related to her post concussive syndrome, and chronic headaches the doctor believed to be tension type secondary to the accident. Exhibit 6. page 62. In a functional capacity report dated January 31, 2006, Dr. Klee allowed the applicant to

By note dated February 1, 2006, Dr. Klee permitted the applicant to work at 3 days under those restrictions.

In a practitioner's report from March 2007 (exhibit B), Dr. Klee has diagnosed chronic neck pain, headache and dizziness as a result of the applicant's car accident causing a herniated disc. Exhibit B. He rated permanent partial disability at 20 percent compared to disability to the whole body, referring back to the work restrictions he had set in January 2006.

The employer and its insurer (collectively, the respondent) retained Stephen Barron, M.D. to examine the applicant. Dr. Barron issued a report on March 21, 2007, rating permanent partial disability at ten percent for the applicant's cervical spine condition, and opined she should not lift over 40 pounds or do repetitive bending of the neck.

The applicant's vocational expert, Jack H. Casper, offered a report dated March 8, 2007 at exhibit C. He noted the applicant, then aged 50, was a high school graduate with a certificate in finance from a technical college. He noted, too, that her employment had generally been in light to medium level work, in unskilled and semiskilled employment. He noted there was high competition for jobs in the Cable labor market.

Under the restrictions imposed by Dr. Harrison, Mr. Casper opined that the applicant would be unable to perform a wide variety of medium level work, housekeeping or otherwise, which would be available. Even work in a convenience store, which involved stocking shelves, would not be possible. He thought the applicant's loss of earning capacity would be at 30 to 35 percent. Mr. Casper offered an addendum (exhibit O) in which he stated that if one considered Dr. Klee's restrictions allowing up to 10 pounds of lifting, with occasional neck rotation, and three eight-hour days per week, the applicant would have a profile of:

A 50 year old woman with no transferrable skills, limited to part time modified sedentary work, residing in a rural Northern Wisconsin community with a low density population.

This profile is incompatible with regular and consistent employment activity. It is only consistent with sporadic employment producing insubstantial wages. Based on the restrictions of Dr. Klee, Ms. Robertson has a 100% (total) loss of earning capacity.

In a post-hearing addendum report issued on April 20, 2007, Mr. Casper opined that, based on the restrictions of Dr. Barron--a 40 pound lifting limit with no repetitive bending of the neck, the applicant would be foreclosed from many assembly, inspection, janitorial and food prep job. He did think she could do low traffic cashiering or possibly counter clerk work, but these jobs would be hard to find in the Cable area, and would likely be part time. He rated loss of earning capacity under Dr. Barron's restrictions at 45-60 percent.

The respondent's vocational expert is Jay R. Smith. He offers reports at exhibits 4 and 5. He started his analysis with the proposition that the applicant quit her job by failing to report for work. Because he assumed she could have worked for the employer but quit the job, he opined she had no loss of earning capacity. He added that even under Dr. Harrison's restrictions, she could get employment as a hostess, line server, cleaner, cashier, and sales clerk which would substantially restore her earning capacity at pay rates of $7.00 to $10.00 per hour.

Considering Dr. Klee's restrictions, Mr. Smith started with the assumption, again, that the applicant had quit her job with the employer. Therefore, he analyzed her vocational loss as if she were still working there, and rated a 25 percent loss of earning capacity. It appears from Mr. Smith's report that he obtained this figure by starting with her $256 average weekly wage (apparently 32 hours at $8.00--see exhibit 4, page 7), and compared that with a three-day 24-hour week under Dr. Klee's restrictions yielding a $240 weekly wage--a 25 percent loss.

Mr. Smith offered a supplemental report opining that there would be no loss of earning capacity under Dr. Barron's restrictions.

The ALJ awarded loss of earning capacity at 50 percent. He adopted the restrictions of Dr. Barron, asserting that Dr. Klee's report included elements of disability not shown to be work-related (these being the headaches and dizziness.) He also noted that Dr. Klee's January 31, 2006 restrictions were drastically increased from those he set on September 21, 2004, though it appears the ALJ may have been referring to Dr. Harrison's September 21, 2004 report at exhibit A.

The ALJ went on to adopt the vocational report of applicant's expert Caspar. He explained that he rejected Mr. Smith's report because it erroneously assumed the applicant had refused work with the employer when in fact the employer had laid her off. Accordingly, he rated loss of earning capacity at 50 percent, which is near the lower end of the 45 to 60 percent range set by Mr. Caspar on Dr. Barron's restrictions. As noted above, both parties have filed timely petitions for commission review.

On appeal, the applicant argues that the commission should adopt Dr. Klee's restrictions due to his greater familiarity with the applicant's condition. However, the commission notes the much less limiting restrictions set by treating rehabilitation specialist Harrison in September 2004. It is true the applicant testified that her condition grew worse and worse, but the ALJ who saw her testify, evidently did not credit her testimony. As the ALJ suggests, the medical records do not provide much evidence of dramatically increased symptoms after September 2004. Much of the applicant's complaints after 2004 seem pointed to the shoulder problems, not the cervical problems that are the basis for the applicant's loss of earning capacity claim. Indeed, Dr. Klee's January 31, 2006 report seems to suggests the opposite, stating that while she suffered ongoing problems after the injury "at this time improvements have stabilized." Exhibit 6, page 63. That same day Dr. Klee issued his January 31, 2006 restrictions which are the basis of the applicant's claim; he suggested they were based on the end of an improving condition, not a worsening one.

The ALJ also noted that Dr. Klee implicitly considered headaches and dizziness in setting his restrictions, but these were not proven to be work-related. The applicant suggests the ALJ erroneously reached this conclusion because he thought the headaches and dizziness had their origin in the psychiatric claim the commission and ALJ Clarke rejected in the first set of decisions issued in this case. In fact, the applicant claims she had headache and dizziness since her injury (as one would expect if it were postconcussive syndrome as Dr. Klee opined on January 31, 2006). However, the medical record does not bear this out, and indicates that those complaints were mentioned in the medical records only sporadically at best until several years out from the injury. See transcript, page 73 et seq.(1)

The bottom line is that the ALJ saw the applicant testify and he found Dr. Barron's restriction to be more credible than Dr. Klee's restrictions. Given the less limiting restrictions of treating doctor Harrison, which the applicant herself submitted and which result in an even lower loss of earning capacity award according to applicant's vocational expert Caspar, the commission agrees with the presiding ALJ on this point.

For its part, the respondent suggests there should be no award for loss of earning capacity, asserting that it offered or provided work to the applicant. See Wis. Stat. § 102.44(6)(a) and (g). However, the commission does not agree. The record amply supports the conclusion that the applicant was laid off from her job with the employer in April 2006. Further the figures offered by the applicant at exhibit M establish hat her wages upon returning to work in October 2005 were below the 85 percent threshold for the purposes of the loss of earning capacity bar under Wis. Stat. § 102.44(6)(a), (f) and (g). Thereafter, of course, Dr. Klee issued the 3-day per week restriction in February 2006. The commission accordingly sees no basis for barring an award for loss of earning capacity under Wis. Stat. § 102.44(6).

The applicant's efforts to find suitable employment (including her lack of effort to contact the employer after her layoff) is one of the factors considered in estimating loss of earning capacity under Wis. Admin. Code ? DWD 80.32(1)(h). As explained above, the commission does not credit the work restrictions set by Dr. Klee, on which Mr. Casper based his opinion that the applicant is permanently and totally disabled on an odd lot basis. Accordingly, the applicant has not made a prima facie odd-lot case.(2) The supreme court has recently held that the factors set out in Wis. Admin. Code DWD 80.34, including efforts to find suitable employment, may be considered where, as here, the commission concludes the applicant is not prima facie odd lot. Beecher v. LIRC, 2004 WI 88, ?? 55, 57, 273 Wis. 2d 136. Considering the applicant's layoff, the employer's recall procedure, the applicant's residual work restrictions, and the factors in Wis. Admin. Code § 80.34 (including particularly the applicant's age, education and work experience), the commission concludes that the ALJ's award for loss of earning capacity--which is at the lower end of the 45 to 60 percent range set out by Mr. Caspar on Dr. Barron's restrictions--is well-considered and correct.

Finally, the applicant questions the ALJ's findings regarding her claimed shoulder injury. That injury was previously addressed in the commission's March 28, 2006 decision affirming ALJ Cathy Lake's August 15, 2005 order which found that the applicant did not injure her shoulder in the August 12, 2000 automobile accident. The commission infers the applicant believes these findings should be deleted and that the respondent does not object. Accordingly, the commission amends ALJ Sass' decision now before it to eliminate the findings relating to the shoulder injury.

 

cc: Attorney Curtiss N. Lein
Attorney James A. Pelish


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


uploaded 2008/09/25


Footnotes:

(1)( Back ) For example, the applicant complained to Dr. Dryer in December 2005 of an ongoing headache for two or three days, and that the applicant wondered if it was due to the 2000 accident "for which she has had some chronic neck pain and muscle pain." While Dr. Dryer did opine the applicant had tension headaches, likely due to the accident, her note hardly reflects a disabling condition that has been chronically present since the accident as the applicant's testimony suggests.

(2)( Back ) In Ralph E. Beecher v. LIRC, et al, 2004 WI 88, 273 Wis. 2d 136, 682 N.W2d 29, the court stated:

?54 Balczewski [v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977)] 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.  Under Balczewski, however, if the claimant brings forward the basic facts sufficient to satisfy the DWD that a prima facie odd-lot case has been made, the presumption is triggered and an obligation is imposed upon the party against whom the presumption runs-here, the employer.  (Emphasis added)          [Ed. note:  Citation format corrected in online HTML version of LIRC decision]