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

TERRY L SAMPHERE, Applicant

TOWER AUTOMOTIVE MILWAUKEE INC, Employer

FIDELITY & GUARANTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-022206


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.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed August 28, 2008
samphte . wrr : 185 : 6 ND 5.4

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission carefully reviewed the entire record in this matter, with particular attention paid to the arguments respondents made in their petition for commission review. The commission ultimately determined that this was an appropriate case for affirmance of the administrative law judge's decision.

The applicant's description of the work activities he performed over approximately 31 years of employment with the employer is uncontradicted. Those work activities as recounted by the administrative law judge in his decision, and as summarized by Dr. Zoltan in his WKC-16-B's, are inferred to have been substantially stressful to the applicant's knees. The applicant credibly testified that he retired on June 30, 2003, because the condition of his knees made it difficult for him to continue working. Dr. Zoltan's medical opinion that the applicant's work place exposure was a material contributory causative factor in the onset or progression of the applicant's bilateral knee conditions is credible.

On January 21, 2003, the applicant did undergo right knee surgery for meniscal tears not shown to have been work related. Dr. Karr opined that the applicant's right knee problem was the result of normal progression of osteoarthritis and the residuals of this January 2003 surgery. While it is credible that degenerative osteoarthritis and the surgery were causative factors in the applicant's right knee condition, it is not credible that the lengthy period of occupational exposure at the employer's work place was not also causative.

Respondents argue that Dr. Zoltan's clinic notes do not mention the applicant's work activities, and the implication is that he therefore did not believe that the applicant's work exposure was causative of the bilateral knee conditions. However, in Dr. Zoltan's WKC-16-B's dated June 6, 2006, and April 5, 2007, he plainly and accurately describes the applicant's work activities and implicates them as causative of the bilateral knee conditions. Respondents emphasize the fact that in his April 2002 WKC-16-B, Dr. Zoltan crossed out the word "material" when affirmatively answering the question of whether or not the applicant's work activities were a material factor contributing to the progression of the bilateral knee problems. This was an unexplained action by Dr. Zoltan, but in the same WKC-16-B he checked the "yes" box indicating that the work exposure was a material contributory causative factor in the bilateral knee conditions. In his final WKC-16-B and attachment completed on April 15, 2007, Dr. Zoltan unambiguously opined that the work exposure was a material contributory causative factor for both knee problems. When completing the earlier WKC-16-B, Dr. Zoltan may have been confused about the legal significance of the word "material," but it is clear from the two WKC-16-B's that from a medical standpoint, he did believe the applicant's work exposure was materially causative of the applicant's bilateral knee problems.

Respondents point out that the applicant waited for almost three years after retiring to return to Dr. Haskell, but the applicant did see Dr. Potos approximately 8 months after retiring, and he credibly testified that the condition of his knees "stayed pretty much the same" during the three years between retiring and his left knee replacement surgery. He also credibly testified that he waited to have that surgery because it is a treatment of last resort.

Finally, respondents argue that the applicant dropped out of the labor market when he retired on June 30, 2003, and therefore even if his left knee replacement and planned right knee replacement are deemed compensable, he should not receive compensation for temporary disability. Respondents cite an unpublished court of appeals decision in which the court denied temporary total disability to an individual who underwent leg surgery approximately 7 years after he had retired and accepted a disability pension from his employer.(1)   In a commission decision issued on October 29, 2007,(2)   the commission denied temporary disability to an individual who had back surgery three years after his retirement, based on the factual finding that this individual was "no longer attached to the labor market" when he underwent his surgery.

The commission considers the key factual element in such cases to be whether or not the individual worker has remained attached to the labor market during the period that precedes the new period of disability. While a significant period of unemployment subsequent to retirement always calls into question the individual's attachment to the labor market, this is not always the decisive factor, given the various elements that may enter into making such a determination. The threshold question to be considered in such cases is whether or not after retirement the individual remained physically able to obtain other, suitable employment; and an element of that question is whether or not pursuant to Wis. Adm. Code ch. DWD 80.47, suitable employment within the physical and mental limitations of the injured worker was furnished by the employer or some other employer. The applicant testified that he would have continued working for the employer had it not been for his knee problems. The commission found this testimony credible, and also inferred from the medical evidence that the applicant's knee problems have been an ongoing, major factor in his failure to obtain other employment since his retirement. Even Dr. Karr acknowledged that the applicant's knee problems continued to worsen subsequent to the applicant's retirement.(3)   The credible inference drawn from the evidence presented is that even though the applicant retired from his employment with the employer, he did not withdraw from the labor market.

cc:
Attorney James Meier
Attorney Juliette Dahms



Appealed to Circuit Court.  Affirmed in part, reversed in part, and remanded, February 25, 2009.  Appealed to the Court of Appeals.  Circuit court decision affirmed  in Court of Appeals, February 9, 2009.

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Footnotes:

(1)( Back ) General Motors Corporation v. LIRC and Edward Hoff, unpublished Court of Appeals Case No. 82-2378, decided April 25, 1985.

(2)( Back ) Carl B. Keys v. Tower Automotive and American Manufacturers Mutual Insurance Company, W.C. Claim No. 2002-043158 (LIRC October 29, 2007).

(3)( Back ) Of course, Dr. Karr opined that the worsening of the applicant's knee conditions was unrelated to his work exposure, but the commission found that opinion incredible.

 


uploaded 2008/09/25