JOSEPH B STORING, Applicant

GENERAL ELECTRIC CO
OIL AND GAS OPERATIONS, Employer

ELECTRIC INSURANCE CO, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 31. 2009
storing . wsd : 101 : 1 ND § 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The applicant, who was born in November 1958, suffered a conceded injury on April 11, 2003. On that date, the applicant felt something pull in his back when he was putting parts from a work bin into a cart. He had pain in his upper back and neck, and eventually pain radiating the entire length of his right arm. He underwent surgery, a C5 through C7 anterior cervical corprectomy with instrumentation and fusion, on December 17, 2003.

The ALJ found the applicant permanently and totally disabled as of August 11, 2005. The ALJ's decision is well supported by functional capacity evaluations which the applicant has undergone, as well as the reports of his medical expert, Dr. Masci, and his vocational expert, Mr. Schuyler. Upon its review, the commission agrees with the ALJ.

The employer and its insurer (collectively, the respondent) question the validity of the functional capacity evaluation, and the work restrictions set by Drs. Masci and Drury. The respondent suggests the applicant's claim was manufactured by referrals to claimant-advocate physicians who had little to do with the applicant's actual treatment. It notes that the applicant, who was only 49 at the time of hearing, was able to work full time after the cervical surgery until October 2004. The respondent asserts that permanent total disability is too high for a man of the applicant's experience and age who has had only one, two-level fusion surgery.

Of course, it was a two-level cervical fusion with unsatisfactory results. The respondent's medical expert, Dr. Monacci, rates permanent partial disability on a functional basis at 25 percent to the body as a whole and suggests a possible failed fusion or pseudoarthrosis. While the applicant was able to work his way up to full-time following work hardening and restricted duty with the employer, he had to discontinue that work, and the employer itself had nothing to offer him.

During cross-examination, the respondent attempted to convey the impression the applicant disagreed with Dr. Masci's restrictions. As the applicant noted, the restrictions were set by Dr. Masci--they were not something the applicant had invented by himself. Transcript, page 51 et seq. Indeed, the applicant testified that he agreed with restrictions set by Dr. Masci.

The respondent also suggests that the applicant could have tried harder to find work. However, the court stated that the commission may not require a worker to show evidence of a job search or efforts to find work as part of the worker's prima facie case. Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, at ¶¶ 44, 48, 57, 58.⁽¹⁾ Further, the applicant did try to go back to work, but could not continue.

The ALJ saw the applicant testify, and believed Dr. Masci's restrictions--basically that the applicant is not capable of full time or even part-time work on a regular basis. The applicant is a 40-year old man with a high school education, associate's degree in automechanics, and a commercial driver's license. His main employment has been work as a mechanic and in fairly heavy assembly work, but he now can do only sedentary work with frequent position changes on a less than full time basis. Mr. Schuyler reasonably found the applicant to be in the odd-lot category under these restrictions, so under Beecher and Balczewski the presumption of permanent total disability arises. The respondent has failed to rebut the odd lot presumption by showing actual jobs the applicant can do. Accordingly, the commission affirms the ALJ's decision.

cc: Attorney Timothy Schumann
Attorney Douglas M. Feldman

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(1)( Back ) In Beecher, the supreme court reiterated its adherence to the "odd lot" doctrine or rule as it applies to claims of permanent total disability. Under that doctrine, when a worker makes a prima facie case 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--in other words, the worker shows that he or she is an "odd lot" worker--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 Beecher court also 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 that the worker is permanently totally disabled arises. Id., at 273 Wis. 2d 136, ¶¶ 53, 54. The court explained:

Balczewski holds that certain basic facts---the claimant's injury, age, education, capacity, and training---may in combination demonstrate an inability to secure continuing, gainful employment such that these basic facts constitute prima facie evidence of another (presumed) fact, namely that the claimant is permanently and totally incapable of earning a living. Ordinarily this is accomplished through expert testimony. The employer may introduce expert evidence in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising. (Emphasis added).

In rebutting the presumption of permanent total disability, respondent 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 273 Wis. 2d 136, ¶ 55.

uploaded 2009/04/10