P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim Nos. 2003-015220 & 2005-034807

Cargill Feed Division Cargill Malt and AIG Casualty 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 July 15, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for additional medical expense, all attributable to the applicant's two work-related low back injuries, resolved in prior department and commission decisions as having occurred on November 16, 2002, and on May 16, 2005.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:


Delete the final paragraph on page 4 of the administrative law judge's decision and substitute therefor the following:

Based on the applicant's credible testimony, and Dr. Anderson's credible medical opinion, Dr. Anderson's physical restrictions are accepted as credible. Given those restrictions as well as the applicant's age (birth date January 19, 1944), education (tenth grade with a subsequent G.E.D.), and capacity (six years as a shipping clerk, two years as a spot welder, and 36 years as a laborer for the employer), the applicant's vocational expert's (Timothy G. Greenya) opinion of permanent total disability constitutes a prima facie case for "odd lot" unemployability.(1) The employer was required to rebut this prima facie case of permanent total disability by demonstrating that the applicant " actually employable and that there are actual jobs available to him...making it more probable than not that the claimant is able to earn a living."(2)

Respondents' vocational expert's (Barbara K. Lemke) job listings, compiled through computer search and telephone contact by Lemke and her colleague, do not satisfy the substantial burden for rebuttal of the prima facie case articulated in Beecher. The job listings Lemke compiled universally fail to include a full description, or in most cases any description, of the specific physical requirements of the job. Dr. Anderson's restrictions are severe and include a maximum of two hours sitting or two hours standing in one day, and a maximum of six hours of sedentary work in one day, which eliminates all the proposed full-time positions Lemke listed. The commission infers that Dr. Anderson's sedentary sitting and standing restrictions also make it more probable than not that the applicant would not be hired for almost any part-time job, and that if he were hired, the work would be casual and intermittent, rather than "regularly and continuously available" to him.3(3)

The rest and remainder of the administrative law judge's Findings and Interlocutory Order are affirmed and reiterated as if set forth herein.

Now, therefore, this


The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified, are affirmed.

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed January 27, 2009
renzch . wmd : 185 : 9 ND § 5.31

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


Respondents objected to the administrative law judge's reference to the fact that none of the employers cited by Barbara Lemke or her colleague were informed of the applicant's age, experience, or physical restrictions. Respondents asserted that federal and state anti-discrimination laws preclude employers from considering age and disability when making hiring decisions, unless the nature of the job is such that these considerations are legitimate. The reality is that anti-discrimination laws have been established because there is an inclination for many employers to discriminate against older or disabled individuals. While state and federal laws do address this problem, they do not eliminate it. The factors of age and physical restriction have always been considered relevant in the permanent total disability analysis, whether one looks to the case law or to Wis. Admin. Code ch. DWD 80.34.

While the commission recognizes the difficulty employers face in rebutting the prima facie case for permanent total disability, the commission must follow the law articulated in Beecher, which requires a showing of an actual job or jobs available to the injured worker. At a minimum, this requires the prospective employers to know all the relevant facts concerning the injured worker, and preferably that the injured worker have been referred to employers with specific job openings actually available to the worker.

Finally, respondents argue that the applicant had withdrawn from the labor market, and therefore should not be eligible for permanent total disability. As noted by the administrative law judge, the applicant did make a substantial and genuine job search with no success after the employer discharged him. Beecher makes it clear that a job search is not a factor to be considered in the establishment of a prima facie case for permanent total disability. Beecher v. LIRC, 2004 WI 88, 44. The court further stated that the prima facie case is rebutted only by "...bringing forward evidence of actual job availability, making it more probable than not that the claimant is able to earn a living." Beecher v. LIRC, 2004 WI 88, 55. The court further explained that: "The claimant may respond with evidence of an actual, futile job search or rely on his expert evidence to defeat the employer's attempted rebuttal." Id. The applicant credibly accomplished both of these defenses to respondents' attempted rebuttal of the prima facie case. He credibly established that regardless of a job search, and considering the relevant factors and his vocational expert's opinion, the effects of his work-related injury have placed him in the "odd lot" category and made him permanently and totally disabled.


Attorney Charles M. Soule
Attorney Eric W. Langell

Appealed to Circuit Court.  Affirmed, June 5, 2009.  Appealed to Court of Appeals.  Reversed and remanded sub nom. Cargill Feed Division v. LIRC and Renz, 2010 WI App 115, 329 Wis. 2d 206, 789 N.W.2d 326.

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(1)( Back ) See Balczewski v. ILHR Dept., 76 Wis. 2d 487, 495, 251 N.W.2d 794 (1977).

(2)( Back ) See Beecher v. LIRC, 2004 WI 88, 44, 55, 273 Wis. 2d 136, 682 N.W.2d 29.

(3)( Back ) See Balczewski v. ILHR Dept., 76 Wis. 2d at 495. 


uploaded 2009/02/04