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

CINDY M NELSON, Applicant

SPX CORP, Employer

METLIFE INS CO OF CT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1993-051689


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 February 25, 2009
nelsoci . wsd : 101 : 1 ND §§5.20, 5.21

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant was born in 1957. She sustained a conceded injury in 1993 due to cumulative work exposure causing cervical disc herniations with work activity on August 9, 1993. Her job at the time involved repetitive heavy coil and spool work; she testified she lifted up to 80 pounds. Shortly after her injury in 1993, the applicant underwent a cervical fusion at C5-6, and C6-7. She was able to continue working for the employer after the injury, though in a different job. She also worked part-time at a convenience store. She quit her job with the employer in 1999 when it appeared she would have to return to her heavier, time-of-injury job. She continued in her job at the convenience store even after her second surgery, a C3-4 and C4-5 fusion procedure in 2006.

In 2008, the applicant left her job at the convenience store and now works full-time in housekeeping--that is as a maid--to a motel resort. The motel resort where she now works accommodates her work restrictions--that is, she told the employer about her restrictions and they allow her to work at her own pace. Transcript, page 25. She works 30-33 hours per week on average (see below), and received a $1.00 per hour raise to $9.00 per hour two weeks before the hearing.

At issue here is the applicant's loss of earning capacity. The starting point, of course, is her current work restrictions following the fusion surgery in 2006.

The restrictions set by the applicant's treating doctor, Alexander Hawkins, M.D. are at exhibit B. They allow about 4 hours sitting and 4 hours standing in an eight hour day, with occasional lifting up to 20 pounds, occasional flexion, occasional extension, and occasional rotation of the neck. Dr. Hawkins stated that the applicant could work 2 to 40 hours a week, and that pain and a limited range of motion would affect her ability to work at a regular job on a sustained basis.

The employer and its insurer (collectively, the respondent) rely on restrictions set by Dr. Karr (exhibit 1), which are:

The ALJ felt that the applicant's vocational expert better accounted for the difference between the two sets of doctors' restrictions, and better accounted for the applicant's actual limited capacity to work full time. She awarded loss of earning capacity at 55 percent.

The respondent appeals, asserting the loss of earning capacity award is too high, for three reasons.

1. The applicant recently received a pay raise to $9.00 per hour and Mr. Schultz's estimate was based on a $8.00 per hour wage.
2. The applicant averaged 33.7 hours per week in the 28 weeks preceding the hearing, not 30 hours (as the ALJ found based apparently on a 52-week average).
3. The report of its vocational expert, Ms. Hindson, is just more credible than Mr. Schultz's.

However, the commission is not persuaded by the respondent's arguments. An assessment of loss of earning capacity is based upon a prediction of impaired earning capacity for the injured employee's working lifetime (or as the supreme court put it, a prediction "made for all time"). See Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76, 30 N.W.2d 217 (1947); see also Kurschner v. ILHR Dept., 40 Wis. 2d 10, 18, 161 N.W.2d 213 (1968). It is not an award for current wage loss. Thus, current earnings as compared to previous earnings are only part of the analysis. Other factors include: age, education, training, previous work experience, likelihood of future suitable employment change, and efforts to find work. Wis. Admin. Code DWD 80.34. In this case, the applicant used to be able to do relatively heavy factory work. She now is a hotel maid, and her labor market expert opines credibly that she is marginal in that employment. The commission is not persuaded her earning capacity has improved because she received a pay raise in that employment shortly before the hearing. The applicant's ability to work more than 30 hours a week arguably goes more to her earning capacity than a recent pay raise. However, the record also provides substantial reason for an increased award for lost earning capacity under the factors in Wis. Admin. Code § DWD 80.34. Her age, at 51, means she is an older--or at least not a younger--worker. She may, as the respondent's expert opines, have time to improve her wage, but she clearly has less time than a younger worker would have. She is a high school graduate, but has 5th grade math skills and 6th grade reading skills according to the respondent's expert.

The applicant testified she did not want to work as a desk clerk at the motel resort where she is now employed because it required learning computer skills and because she found it boring. Transcript, pages 23 and 24. She instead works as a housekeeper or maid. Again her labor market expert opines, quite reasonably, that even employment as a maid is marginal. In short, the commission agrees that the applicant's labor market expert gave a more reasonable opinion regarding loss of earning capacity than the respondent's. It therefore affirms the ALJ's decision.

cc: Attorney Russell W. Devitt
Attorney Ahmed J. Quereshi


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