DONALD ROGERS, Applicant
TRUSSWORKS INC, Employer
HARTFORD ACCIDENT & INDEMNITY CO, Insurer
Trussworks, Inc. and Hartford Accident and Indemnity Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 10, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not the applicant is entitled to permanent partial disability for alleged mental limitations allegedly attributable to the work injury of November 23, 1992, pursuant to the provisions of Wis. Stat. § 102.44(6)(a).
The commission has carefully reviewed the entire record in this matter, and hereby reverses the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is August 1, 1954, was strapping down a load on his trailer truck when the steel pipe used to tighten the trailer ratchet recoiled and struck him in the upper face fracturing the orbital walls of his skull above and around his eyes, and causing the loss of his right eye. This occurred on November 23, 1992. He had a relatively good recovery, but in his application filed on August 17, 2006, he claims 12 percent permanent partial disability due to cognitive deficit and personality change attributable to the injury. This is the PPD assessment given by treating physician Dr. T.C. Silvestrini.
A neuropsychologist, Dr. Ervin Concepcion, also opined that the applicant has a lower threshold for anger and personality change due to the work injury.
Respondents' Dr. Gilbert Westreich examined the applicant on October 26, 2006, and filed a report dated November 9, 2006. He opined that the work injury did not cause any cognitive or personality effect.
The applicant's claim for permanent disability for his alleged mental limitations, allegedly attributable to his work injury, must be dismissed pursuant to the provisions of Wis. Stat. § 102.44(6)(a). The statute provides:
"(a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%."
There is no dispute that the applicant has returned to employment with the employer at a wage rate exceeding 85 percent of the rate he was earning at the time of injury. Wis. Stat. § 102.44(6)(a), provides that in such cases the compensation is limited to the permanent disability attributable to the worker's physical limitations. There is no provision in the statutes for compensation for mental limitations. This same issue was resolved by the commission in Patrick B. Walls v. Wis. Electric Power Co., WC Claim No. 1999-046193 (LIRC Dec. 17, 2002), available at www.dwd.wisconsin.gov/lirc.
In the Walls decision, it was explained that the provisions of Wis. Stat. § 102.44(6)(a), are unambiguous. The phrase "mental limitations" is used in Wis. Stat. § 102.44(6)(b) and (h), and in Wis. Admin. Code ch. DWD 80.34(1); but that phrase is not used in Wis. Stat. § 102.44(6)(a), nor in the department's explanatory footnote to that statutory subsection. The commission can discern no reason for the repeated use of the separate phrases (physical limitations versus mental limitations) other than to draw a distinction as to their effect. The only reasonable interpretation of the statute is that the legislature intended not to award permanent disability for mental limitations under the circumstances defined in Wis. Stat. § 102.44(6)(a).
The commission fully appreciates the argument that it seems inequitable not to award permanent disability for mental limitations under these circumstances. However, it is well settled that the Worker's Compensation Act is statutory, and that the commission may not resort to its ideas of what would be equitable in awarding compensation. Topp v. LIRC, 133 Wis. 2d 422, 427, 395 N.W.2d 815 (Ct. App. 1986); Southside Roofing and Material Co. v. Industrial Comm., 252 Wis. 403, 409, 31 N.W.2d 577 (1948).
Public policy determinations are for the legislature to make, not the commission. Town of Russell Volunteer Fire Dept. v. LIRC, 223 Wis. 2d 723, 734, 589 N.W.2d 445 (Ct. App. 1998).
The commission must therefore dismiss the current application for compensation attributable to alleged permanent partial disability for mental limitations allegedly caused by the work injury of November 23, 1992. Of course, should the applicant's employment with the employer be terminated under the circumstances described in Wis. Stat. § 102.44(6)(b), the claim for permanent partial disability allegedly attributable to mental limitations could be resubmitted pursuant to Wis. Stat. § 102.44(6)(b).
The commission's order will be left interlocutory to address the contingency that the applicant may require additional medical treatment and/or sustain additional disability, including possible loss of earning capacity, should the provisions of Wis. Stat. § 102.44(6)(b), become applicable.
Now, therefore, this
The Findings and Interlocutory Order of the administrative law judge are reversed. The application for permanent partial disability attributable to the alleged, injury-related mental limitations, pursuant to the provisions of Wis. Stat. § 102.44(6)(a), is dismissed.
Jurisdiction is reserved for such further findings and orders as may be necessary.
Dated and mailed December 11, 2008
rogerdo . wrr : 185 : 9 ND § 5.23
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission reversed the administrative law judge's decision on legal grounds. No credibility issues were involved.
cc:
Attorney Curtiss N. Lein
Attorney Gary S. Stanislawski
Appealed to Circuit Court.
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