REGINALD P RECK, Applicant

AFFORDABLE HEATING &
AIR CONDITIONING INC, Employer

REGENT INSURANCE CO, Insurer

Selective Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 29, 2009. The applicant and Regent Insurance Company submitted answers to the petition and briefs were submitted by the parties. The particular issues in dispute before the commission are liability for vocational retraining benefits, as well as the respective liability of the two insurers for any such benefits. Compensable work injuries are conceded as having occurred on August 25, 1999, and on September 24, 2002. Additional issues stemming from these injuries, including medical expense, remain unresolved. Findings relevant to this proceeding were made in the department's Interlocutory Order issued on February 28, 2005. That order was not appealed and has become final.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's ultimate findings and interlocutory order, except as modified below. The commission makes the following:

The applicant, whose birth date is September 9, 1969, was employed as an installation manager for the employer, a heating and air conditioning business. He sustained a conceded low back injury at work on August 25, 1989, when Selective Insurance Company was on the risk. The injury resulted in three surgeries: a discectomy at L5-S1 performed on October 27, 1999; a laminectomy and disc removal at L5-S1 performed on June 8, 2001; and a revision of the L5-S1 laminectomy, with fusion and instrumentation, performed on February 26, 2002. The last of these three surgeries was performed by the applicant's current treating physician, Dr. Thomas M. Doers.

On May 20, 2002, Dr. Doers indicated that the applicant was doing very well and making good progress, but still had some numbness in his right leg and occasional low back pain. The applicant was given work restrictions on July 1, 2002, of lifting up to 20 pounds frequently, and up to 50 pounds occasionally. The applicant credibly testified that his back has not felt good since the 1999 work injury.

The applicant was back at work on September 24, 2002, when a support leg on a fuel tank collapsed and the tank began to tip over. The applicant and a co-worker pushed against the tank, which had approximately 150 gallons of fuel in it, in an effort to keep the tank from tipping over. This resulted in the applicant reinjuring his back. Regent was the insurer on the risk, and it attempted to attribute all of the applicant's disability to the 1999 injury. A hearing was held before Administrative Law judge Leonard Martin, who issued a decision on February 28, 2005. That decision found: (1) Selective liable for 20% permanent partial disability (PPD) attributable to the 1999 injury and subsequent surgeries; (2) an additional 5% PPD apportioned equally between the 1999 and 2002 injuries, thus making each insurer liable for an additional 2.5% PPD; and (3) an additional 3% PPD for sacroiliac damage attributable solely to the 2002 work injury. This decision was not appealed. The interlocutory order specifically indicated that vocational retraining was one of the issues remaining unresolved.

After the injury on September 24, 2002, the applicant continued to treat with Dr. Doers. On October 23, 2002, Dr. Doers noted that the applicant had been able to go back to work, but that he was exceeding his physical restrictions and working long hours. He recommended a change in occupation. On December 30, 2002, Dr. Doers wrote that the applicant had been "doing beautifully" until the injury on September 24, 2002. However, now the applicant had discogenic back pain that was quite limiting, albeit with good days and bad days. Dr. Doers also wrote that the applicant indicated it was of no use to give him work restrictions because he couldn't follow them anyway. The applicant did continue to work and indicates that he generally had help with heavy lifting, but not always.

On March 12, 2003, Dr. Doers wrote in reference to the September 2002 work injury: "I don't think there is any doubt that this is a further exacerbation of his preexisting spinal condition that has necessitated three surgeries in the last three years." The applicant received a series of sacroiliac joint injections that provided temporary relief. On May 26, 2004, Dr. Doers updated the applicant's permanent restrictions to include lifting frequently up to 25 pounds, but no lifting over 25 pounds. Dr. Doers also restricted the applicant to occasional bending and twisting, and no climbing, crawling, squatting, or kneeling. The applicant continued to work for the employer until he was terminated on December 10, 2004, because the employer could no longer accommodate his physical restrictions.

The applicant sought assistance from the Department of Vocational Retraining (DVR), but he was placed on a waiting list, which led him to contact a private rehabilitation counselor, Sarah Holmes. Holmes and the applicant together chose a two-year program for an associate degree in civil engineering technology. The applicant began this program on August 26, 2005, and was pursuing it when the DVR contacted him in November or December of 2005. After discussions with the DVR counselor, Sandra Warner, a DVR retraining plan was developed for a four-year bachelor degree in civil engineering. The applicant has been successfully pursuing that program.

Selective and Regent each assert that liability for the applicant's claim for vocational rehabilitation benefits lies with the other insurer, and both insurers assert that the rehabilitation benefits should be limited to the original two-year program established by Sarah Holmes. Neither insurer has paid the applicant anything directly for his ongoing vocational retraining. However, Regent did pay the applicant a lump sum of $10,000 in December 2006, in what Regent labeled a limited compromise agreement, but what actually appears to be a stipulated payment without any legal consideration from the applicant. This "agreement" does provide that Regent shall receive credit for the $10,000 against any future worker's compensation liability.

ALJ Martin also held the hearing on the issue of vocational rehabilitation benefits that is currently before the commission. He apportioned 80% of the liability for these benefits to Selective, and 20% to Regent, noting that was the respective apportionment of liability for PPD he found in his order of February 28, 2005 (22.5% PPD for Selective and 5.5% PPD for Regent). Selective has petitioned and argues that Regent should be 100% liable for retraining benefits because: (1) the applicant was able to go back to work after the 1999 injury and resulting surgeries; (2) the occupational exposure after this return to work, together with the work injury of September 24, 2002, worsened the applicant's condition and was allegedly the sole cause of his inability to continue working; and (3) Dr. Doers opined in a letter dated November 29, 2006, that the traumatic work injury of September 24, 2002, provided 100% of the causal contribution for the applicant's "...need for the vocational rehabilitation that commenced in August 2005." Dr. Doers' opinion in this letter was given in a question/answer format, and the questions were drafted by Selective's attorney.

Dr. Doers' November 2006 opinion regarding the need for vocational rehabilitation constitutes a legal rather than a medical opinion. Regardless, as resolved in the unappealed decision of February 28, 2005, Dr. Karr's apportionment of permanent disability between the two work injuries has been accepted as credible. In relative percentages, that apportionment was 80 percent of the PPD attributable to the 1999 injury, and 20 percent of the PPD attributable to the 2002 injury. The PPD apportionment provides the appropriate percentages for determining liability for vocational rehabilitation, because the need for retraining is based on the applicant's permanent limitations. Wis. Stat. § 102.175, addresses the requirement of apportionment between two or more accidental (traumatic) injuries, and it calls for apportionment "...according to the proof of the relative contribution of disability resulting from the injury."

Contrary to Dr. Doers' statement in his December 2002 clinic note, the applicant was not "doing beautifully" just prior to the work injury of September 24, 2002. The applicant credibly testified that he experienced continual problems after the 1999 injury and surgeries, and in particular a couple of weeks prior to the injury of September 24, 2002. Dr. Karr's accepted apportionment of PPD leads to the inference that the same apportionment percentages apply to liability for vocational rehabilitation benefits. This inference is consistent with the applicant's credible testimony concerning his ongoing back condition subsequent to the 1999 work injury, and with the seriousness of the three surgeries he underwent as a result of that same injury. It is clear from the medical evidence that the effects of the 1999 work injury were responsible for an 80-percent share of the applicant's permanent disability that led to the need for vocational rehabilitation.

Selective and Regent both argue that the applicant's vocational rehabilitation benefits should be limited to the cost of the two-year program developed by Sarah Holmes. They cite Wis. Stat. § 102.61(1m)(d), which provides:

"If an employee receives services from a private rehabilitation counselor under par. (a) and later receives similar services from the department under sub. (1) without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) or for travel and maintenance expenses under sub. (1) that exceed what the employer or insurance carrier would have been liable for under rehabilitative training program developed by the private rehabilitation counselor."

It is conceded that the applicant did not seek or obtain approval from either insurer before changing from the private rehabilitation program to the DVR-sponsored program, and the insurers argue that this is therefore the exact scenario described in the statute. However, the statute refers to the circumstance in which the injured worker is receiving vocational retraining benefits due under the private rehabilitation plan. Wis. Stat. § 102.61(1m)(d), refers to an employee who "receives services...under par.(a)," and Wis. Stat. § 102.61(1m)(a), contemplates actual payment of rehabilitation costs accrued under the private rehabilitation plan, as required in Wis. Stat. § 102.61(1m)(c). Neither Selective nor Regent was providing such services to the applicant, and accordingly, Wis. Stat. § 102.61(1m)(d), is not applicable to his claim.

Finally, the insurers argue that the four-year civil engineering program enhances rather than restores the applicant's earning capacity. Wis. Admin. Code ch. DWD 80.49 (3), provides that extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized " . . . if the primary focus of further training is to improve upon preinjury earning capacity rather than restoring it." As noted by ALJ Martin, when the difficulty of securing suitable employment as a civil engineering technologist, the applicant's relatively high pre-injury wage level, his relatively young age, and the starting wage level of a civil engineer are all considered, the credible inference is that the primary purpose of the civil engineering degree for the applicant is to restore rather than to improve upon his preinjury earning capacity.

The applicant currently claims $11,440.38 in vocational retraining expense, together with $3,115.07 in mileage expense, for a total of $14,555.45. Applicant's attorney is entitled to a 20 percent fee. The administrative law judge found that applicant's attorney was also entitled to unspecified "costs," but the record before the commission does not identify any such costs. If applicant's attorney wishes to claim costs against any subsequent compensation ordered paid, he may do so in accordance with the interlocutory nature of this order.

Additionally, the applicant is entitled to reimbursement for $120.00 in medical expense which he paid to Advanced Pain Management. In accordance with the findings of liability set forth in the Interlocutory Order of February 28, 2005, reimbursement shall be made equally by the two insurers.

Correspondence in the file indicates at the time ALJ Martin's decision was issued on January 29, 2009, there was confusion regarding what amounts of compensation had previously been paid, and whether any such previous payments would offset the compensation ordered paid herein. The commission will order payment of compensation without regard to prior payment, but does so on an interlocutory order basis, should there have been prior payments that legitimately offset the amounts due.

Jurisdiction will also be reserved with respect to any unresolved issues.

NOW, THEREFORE, this

Within 30 days from this date, Selective Insurance Company shall pay to the applicant as reimbursement for vocational rehabilitation expense the sum of Nine thousand three hundred fifteen dollars and forty-nine cents ($9,315.49); to applicant's attorney, Michael Fleming, fees in the amount of Two thousand three hundred twenty-eight dollars and eighty-seven cents ($2,328.87); and to the applicant as reimbursement for medical expense the sum of Sixty dollars ($60.00).

Also within 30 days from this date, Regent Insurance Company shall pay to the applicant as reimbursement for vocational retraining expense the sum of Two thousand three hundred twenty-eight dollars and eighty-seven cents ($2,328.87); to applicant's attorney, Michael Fleming, Five hundred eighty-two dollars and twenty-two cents ($582.22); and to the applicant as reimbursement for medical expense the sum of Sixty dollars ($60.00).

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

Dated and mailed September 8, 2009
reckreg : 185 : 5 ND 5.39, 5.41

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Michael Fleming
Attorney Troy Thompson
Attorney Robert H. Zilske

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uploaded 2009/09/18