EARNEST ELLIS, Applicant

DEPT OF TRANSPORTATION, Employer

DEPT OF ADMINISTRATION, 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 August 27, 2009
ellisea : 175 : 5 ND 8.24

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining the applicant's claim for loss of earning capacity arising out of his work injury on April 16, 2003 is dismissed. The applicant contends he established he was permanently and totally disabled on an odd lot basis as the result of a work injury on April 16, 2003. The applicant worked for the employer for 37 years as an engineering technician. The applicant was working on April 16, 2003, in Milwaukee on the 894 Bypass when he was struck by another vehicle from the rear. The applicant reported the injury and sought treatment for low back pain, headaches, neck pain and left arm pain. The administrative law judge noted the applicant's primary residual symptoms from this work injury are chronic headaches. Dr. Block, the applicant's treating physician, completed a WKC-16-B dated December 19, 2006, in which he assessed the applicant with 27 percent permanent partial disability to the body as a whole as a result of his work injury in April 2003. Dr. Block noted the applicant suffered decreased cervical range of motion, as well as chronic neck pain and pain aggravated by normal activity. However, Dr. Block declined to assess the applicant with any permanent restrictions as a result of a work injury and indicated he did not perform functional capacity evaluations. Dr. Block's notes on December 14, 2006 state the applicant was seen subsequent to a two-level pseudoarthrosis from C3 to C5 level in October 2004. The applicant reported his symptoms were significantly improved on December 14, 2006, although he is still having daily headaches, but they were much less severe in intensity. Dr. Block noted the applicant was satisfied with his condition and felt no need for further intervention and denied any pain, weakness or parathesias to any of his extremities.

The applicant was evaluated by Dr. O'Brien on behalf of the employer in December 2004. Dr. O'Brien opined the applicant's need for fusion surgery was not due to the work injury, but due to his preexisting degenerative condition, and the applicant sustained only a cervical sprain as a result of the work injury in April 2003. The department issued an order finding the applicant suffered a work-related cervical injury in April 2003 leading to the need for fusion surgery, and awarded the applicant 27 percent permanent partial disability to the body as a whole. The applicant subsequently brought the claim for permanent total disability on an odd lot basis.

The applicant underwent a functional capacity evaluation on April 30, 2007 performed by a physical therapist. The functional capacity evaluation found the applicant could sit for two hours, stand for one hour and walk for one hour, and required frequent breaks and has difficulty breathing with exertion. The applicant admitted in his testimony he has pre-existing asthma which caused him problems with his ability to perform certain activities. The applicant was limited to lifting 30 pounds occasionally, and only 10 pounds frequently, and limited from frequent flexing and rotating of the neck. The applicant indicated he was taking several medications including Prednisone and Oxycodone and other medications for back pain as well for asthma. The functional capacity evaluation found the applicant required an inhaler due to difficulty breathing, and he had difficulty standing and walking due to asthma, as well as kneeling and climbing stairs, when he would become out of breath due to asthma.

The applicant's vocational expert, Mr. Riley, noted the applicant was able to sit for a total of two hours per day, and stand for one hour and walk for one hour, and he cannot crawl or reach above shoulder level. Mr. Riley noted the applicant's lifting restrictions, and he opined the applicant is unable to perform his usual occupation as a civil engineering technician within these restrictions. Mr. Riley opined the applicant was limited to part-time sedentary work at best, and based on his restrictions from the functional capacity evaluation the only work available to the applicant would be of an odd lot nature.

The employer presented a vocational report from Ms. Hindson. Ms. Hindson stated that because the applicant retired from his employment, the employer was never able to offer him a position, and in fact the employer was never presented with permanent restrictions. Ms. Hindson states that if the employer had been presented with restrictions, the employer would have tried to work with the applicant because he was a valued employee with a lot of skills and light work could have been found. Ms. Hindson stated the applicant could have done some bookkeeping in the office, working with spreadsheets, drafting and working on reports. Ms. Hindson noted she was not able to present a loss of earning capacity based on the reports of Dr. Block, as Dr. Block has not provided permanent work restrictions.

The commission finds that the applicant's award of 27 percent functional disability due to a cervical injury and need for surgery caused by the motor vehicle accident on April 16, 2003, is the appropriate award. The applicant has failed to present a valid claim for further loss of earning capacity on a functional basis or claim for permanent total disability. Pursuant to Wis. Stat. § 102.17(1)(d), certified reports of physicians, podiatrists, surgeons, psychologists and chiropractors are admissible as evidence of the diagnosis, necessity of treatment, and cause and extent of disability. In this case, no physician has determined the applicant's physical restrictions due to the work injury in April 2003. The functional capacity evaluation relied upon by the applicant's vocational expert was prepared by a physical therapist who is not qualified under the statute to render an opinion as to the extent of disability and permanent restrictions. Dr. Block did not present a functional capacity evaluation and his last report is dated December 2006. Dr. Block did not present any further comment or report of physical restrictions after the functional capacity evaluation. The commission finds that the applicant has failed to establish a prima facie case for permanent and total disability on an odd lot basis.

However, even if the commission were to find that the applicant had established a prima facie case, the administrative law judge appropriately noted that if the applicant had not determined to retire, he could have returned to work with the employer in an office setting, but chose to take himself out of employment rather than attempt to return to work. The evidence does not indicate the applicant ever presented any restrictions to the employer subsequent to his cervical surgery, but determined to retire. The commission agrees with the administrative law judge the applicant had a duty to at least notify his current employer of his restrictions, if any, prior to retiring. There is no evidence the applicant made any attempt to at least return to work with the employer. In addition, the evidence indicates that even if the commission were to consider the applicant's restrictions from the functional capacity evaluation, that many of the applicant's more severe restrictions were related to his asthma problems and not to his cervical injury and headaches. Given the fact the applicant failed to present sufficient evidence to establish his prima facie case for permanent total disability on an odd lot basis, and given the applicant's more severe restrictions to his hours of work are related to his non-work-related asthma, and given the fact the applicant failed to notify his employer of his permanent restrictions, the administrative law judge appropriately dismissed the applicant's claim for loss of earning capacity arising out of the April 16, 2003 injury.

cc: Attorney Ronald Bornstein
Attorney David A. Hart

Appealed to Circuit Court. Affirmed March 9, 2010.  Appealed to Court of Appeals.  Affirmed Earnest Ellis v. DOA and LIRC, 2011 WI App 67, 333 Wis. 2d 228, 800 N.W.2d 6.

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