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

MARIA LUZ RAMIREZ, Applicant

WAUPACA NORTHWOODS LLC, Employer

ZURICH AMERICAN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-038554


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 December 29, 2008
ramirez . wsd : 101 : 9 ND §§ 5.11. 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant claims permanent total disability arising from an injury sustained from occupational exposure while performing her job filling, sealing and stacking 40- to 60-pound bags of rocks and other landscaping materials. The ALJ credited the restrictions of the applicant's psychological and medical experts, Drs. Langmade and Reddy, and found the applicant permanently and totally disabled based on the opinion of the applicant's vocational expert, Mr. Odness. In reaching this decision, the ALJ concluded that the applicant indeed suffered from dysthymia and a myofascial pain disorder. The ALJ went on to conclude that even if the pain disorder were somatic--that is, without organic cause--it was still genuine and caused by the work injury.

On appeal, the employer and its insurer (collectively, the respondent) challenges the finding that the applicant has permanent disability on a vocational basis, let alone permanent total disability. The respondent's argument is basically two-fold:

The applicant suffered a work injury from repetitive, heavy work. Dr. Reddy reasonably has opined that the work exposure caused chronic myofascial pain leading to disabling depression. While Dr. Yuska suggests chronic myofascial pain is somatic pain--that it has no identifiable physical source--the ALJ quite reasonably concluded the applicant's condition is nonetheless real and disabling. The applicant was in her forties when she was injured and disabled. By that time, she had worked for many years in strenuous employment, including her job for the employer. Her testimony and that of her husband paint the picture of someone who was formerly gainfully employed for many years, but is now genuinely disabled and under considerable mental stress as a result. Further, the ALJ saw her testify, and he did not believe she was malingering.

Nor can the commission conclude the applicant's claim must fail because she has not looked for work or undertaken vocational rehabilitation. First, of course, the applicant testified that she did see a DVR counselor, Mr. Ryan. Further, the commission must consider the applicant's efforts to find work in light of the supreme court's holding regarding permanent total disability under the odd-lot doctrine in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29.

Under the "odd-lot" rule generally, a worker makes a prima facie case of odd-lot unemployability--and hence permanent total disability--by showing that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment. When the worker makes his or her prima facie case, the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id. The supreme court reiterated its adherence to the odd lot doctrine in Beecher.

Discussing the court's holding in Beecher, the commission has previously noted:

In Beecher, the court made three points quite clearly. First, the commission cannot require a worker to show evidence of a job search or efforts to find work as part of the prima facie case. Id., at ¶¶ 44, 48, 57, 58. Second, the court analogizes the odd lot rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption the worker is permanently totally disabled arises. Id., at ¶¶ 53, 54. Third, once the presumption arises, in rebutting the presumption the employer bears a burden of persuasion on the issue of whether the worker is in fact employable and that jobs do exist for him or her. Id., at 55.

While the commission may not require evidence of a job search as part of an injured worker's prima facie case, the Beecher court did conclude

The factors enumerated in DWD § 80.34 [which include vocational rehabilitative efforts and efforts to find suitable employment] may come into play in the agency's ultimate determination of eligibility for benefits, to the extent that they overlap with the odd-lot doctrine, or in a broader sense to the extent that the odd-lot case fails and traditional eligibility rules prevail.

Beecher v. LIRC, 273 Wis. 2d 136, 55.

Based on the credible opinions of Drs. Reddy and Langmade, and the credible opinion of vocational expert Odness, the applicant has made her prima facie case regardless of her efforts to obtain vocational retraining or find employment. Because the applicant made her prima facie case, the burden shifts to the respondent to show that there exists suitable employment for the applicant, that there is an actual job that the applicant can do (Beecher v. LIRC, 273 Wis. 2d 136, 54), or that the applicant "is actually employable and that there are actual jobs available to [her]" (id., 44). The employer has not rebutted by showing work she can actually do under the restrictions of Drs. Reddy and Langmade, nor is the commission inclined to infer such a finding based on the applicant's efforts to find employment in this case.

In short, the applicant has established that she is permanently and totally disabled on an odd-lot basis.

b. TTD at the increased "renewed TTD" rate.

The applicant, of course, has also appealed. She argues her temporary total disability compensation should have been increased under Wis. Stat. § 102.43(7). That section provides:

(7) (a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in par. (c).
(b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under sub. (5) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in par. (c).
(c) 1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.
2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employee's actual rate at the time of injury bore to the maximum rate in effect at that time.

At the hearing, the ALJ initially expressed agreement with the applicant's position. April 7, 2008 transcript, page 7. However, after he made his decision, the ALJ learned from the department's benefits calculations unit that the applicant had actually never been paid temporary total disability until the ALJ's first decision in April 2006, whereupon temporary total disability was ordered paid on a continuing basis until the applicant was found permanently and totally disabled. Accordingly, the period of temporary disability paid pursuant to the ALJ first order and continued under the terms of his second order was not a "renewed" period of temporary total disability, because there had been no prior payment of temporary disability as such. See letter from ALJ Falkner to Attorney Israel Ramon dated May 20, 2008.

While the parties entered into a limited compromise covering the applicant's claims for permanent disability and an earlier period of temporary disability,(1) the commission's review of the department's benefit records revealed that applicant was not paid temporary disability until the April 29, 2005 date specified in ALJ Falkner's first order and that temporary disability was awarded continuously thereafter until the applicant was found permanently totally disabled on July 25, 2007. Accordingly, the ALJ property declined to increase the applicant's temporary disability compensation under Wis. Stat. § 102.43(7).

 

cc: Attorney Israel Ramon
Attorney Edward Stewart


 

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Footnotes:

(1)( Back ) The terms of this compromise were detailed by ALJ Falkner in a proceeding held on February 25, 2004.

 


uploaded 2009/01/05