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

LISA GIBBS, Applicant

STOUGHTON TRAILERS LLC, Employer

STOUGHTON TRAILERS LLC, Insurer
 

WORKER'S COMPENSATION DECISION
Claim No. 2005-015799


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 November 6, 2008
gibbsli . wsd : 101:6 ND 5.40

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION

The applicant was born in 1968, and was an assembler or production worker for the employer. The applicant's conceded average weekly wage at the time of injury was $533.32. She sustained a conceded work injury to her back on April 8, 2005, and had a one-level fusion surgery in October 2005. In a prior decision that was not appealed, ALJ Roy Sass awarded temporary and permanent disability compensation, as well as medical expenses.

The applicant worked in light duty for the employer while she was in a healing period, but her employment ended in October 2006. The applicant underwent a functional capacity evaluation in October and November 2006, about a year out from surgery. The functional capacity evaluation allowed work in the sedentary to light job classifications. Sedentary work was described as exerting 10 pounds of force occasionally. Light work was described as exerting up to 20 pounds of force occasionally.(1) The evaluation also recommended the applicant "maintain stable trunk postures by avoiding forward bending at the waist, twisting at the waist, leaning back and side bending during work tasks."

On at least two occasions after receiving the functional capacity evaluation, the applicant called the employer about returning to work under the restrictions set out in the functional capacity evaluation but was not offered work. In April 2007, a clerical job came open in the employer's Brodhead plant. The employer did not offer the job to the applicant at that time, but instead hired a worker through a temporary help agency.

In May 2007, the applicant was admitted to the accounting program at Blackhawk Technical College (Blackhawk) in Janesville beginning with the August 2007 term. In June 2007, after she had been accepted at Blackhawk, she applied for services with the Division of Vocational Rehabilitation (DVR). On July 10, 2007, following an interview with a DVR worker, the applicant was found eligible for DVR services. Shortly thereafter, on July 16, 2007, DVR approved an Individualized Plan for Employment (IPE). The IPE included taking the GED and taking coursework leading to an associate degree in accounting at Blackhawk beginning in August 2007.

The applicant's first day of classes was August 22, 2007. See exhibit B. Before that date, however, on August 13, 2007, the employer sent the applicant a letter offering her the clerical job at its Brodhead facility. The job offer is at exhibit 1.

The applicant seeks vocational rehabilitation benefits under Wis. Stat. 102.43(5) and 102.61. The employer's job offer is relevant in this case because Wis. Stat. 102.61(1g) allows an employer to effectively insulate itself and its insurer from vocational rehabilitation benefits by offering an injured worker suitable employment within 90 percent of her pre-injury wage. "Suitable employment" is employment within the worker's permanent restrictions, and for which the worker has the necessary knowledge, skills and ability to perform. In addition, the job must be offered within 60 days after the employer receives notice the worker is eligible for DVR services and has been provided with a report stating the applicant's restrictions.

The main question at issue in this case is whether the employer "provide[d] to the employee in writing an offer of suitable employment." While the job offer was made 9 months after the functional capacity evaluation was done, 4 months after ALJ Sass's order, and 4 months after the job came open, the offer appears to have been timely under Wis. Stat. 102.61(1g)(c). Further, while it seems undeniable the employer was motivated to offer the applicant work because she applied for vocational rehabilitation benefits, the statute by its terms contemplates offers of suitable employment made after the employer learns the worker is eligible for vocational rehabilitation services.

However, ALJ Endter also noted that the offer did not specify the number of hours to be worked in a week. In this case, the number of weekly hours is important. Unless the applicant worked at least 38.6 hours per week at the offered wage, she would not have been making 90 percent of her pre-injury average weekly wage. Under the statute, the employer is not simply required to provide suitable employment, but to offer suitable employment in writing. Like the ALJ, the commission concludes the job offer in this case should have specified in writing the number of weekly hours offered to comply with the statute.

The commission also notes that the position description included with the employer's offer specifically required occasional lifting up to 25 pounds, and bending at the waist, when the functional capacity evaluation--which the employer has not challenged--recommended against those activities. The position description also required prior experience and skills the applicant lacked. The commission declines to hold that the applicant should have inferred the required skills and the required functional capacity requirements were being waived by the offer on this record. Again, to be "suitable" under Wis. Stat. 102.61(1g), the employment must be within the worker's permanent restrictions, and the worker must have the necessary knowledge, skills and ability to perform the work.

The employer, of course, argues that the written offer says training would have been provided and the human resource officer says physical accommodations would have been made. The employer asserts, too, that if the applicant had questions she could have contacted the employer, and that no job offer is perfectly complete. Still, the statute puts the burden on the employer to make a suitable offer of work, and defines "suitable work" as work paying 90 percent of the average weekly wage within the worker's physical restrictions and skill. Here, there was no way to tell whether the job paid 90 percent of the pre-injury wage, or whether the job would actually have been within the applicant's restrictions or skills.


cc:
Attorney James A. Meier
Attorney Paul Riegel



Appealed to Circuit Court

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Footnotes:

(1)( Back ) The functional capacity evaluation is at exhibit E from the January 24, 2007 hearing before ALJ Sass. ALJ Endter took administrative notice of the exhibits from that hearing to the extent necessary.

 


uploaded 2008/12/05