DONALD G SCHNEIDEWEND, Applicant
RANDSTAD STAFFING
SERVICES USA INC, Employer
ACE AMERICAN INSURANCE CO, Insurer
In December 2008, the applicant filed an application for hearing seeking compensation regarding a January 9, 2004 date of injury. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (department) on July 1, 2009.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury causing permanent partial disability at one percent compared to disability to the body as a whole, an average weekly wage of $791.20, and its liability for increased compensation under Wis. Stat. § 102.57. The respondent had also made some payments of temporary disability for periods before September 11, 2009. In dispute at the hearing were the nature and extent of disability from the injury, the respondent's liability for treatment expenses, and the applicant's entitlement to benefits for vocational rehabilitation.
On July 20, 2009, the ALJ issued his decision. Both parties filed timely petitions for commission review. The commission has considered the petitions and the positions
of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant worked for the employer, a temporary help agency. He was injured on January 9, 2004, when he fell 15 or 16 feet through an open stairway while on assignment with a construction company.
Following his injury, the applicant was hospitalized for three days. A CT scan done at the time showed transverse process fractures at L1, L2, L3, L4, and L5. A psoas muscle hematoma was also noted.
After he was released from the hospital, the applicant treated with Talbot Sellers, D.O., whose notes are at exhibit I. Dr. Sellers' notes include a pain diagram drawn on January 14, 2004 showing burning pain in the left lower back, just above the buttocks. Dr. Talbot noted a 15-16 foot fall, followed by emergency treatment. He described the CT scan as showing the transverse process fractures, as well as multiple areas of contusion in the left psoas muscle. The applicant did not, however, have complaints of numbness and tingling. Dr. Seller diagnosed soft tissue pain with transverse process fractures.
Improvement was noted during follow-up visits in February and March, but with continued tenderness and edema in the back. The applicant still could not return to work. A physical therapy note dated March 25, 2004, indicates a near recovery from the fall with some residual swelling in the lumbar spine.
Dr. Sellers saw the applicant again on April 15, 2004, when he noted some edema in the back, but that the pain was getting better and the applicant was more active. The doctor noted that chiropractic treatment was providing some relief of the stabbing back pain. On physical examination, the doctor noted:
Gait is not antalgic. To palpation, there is tenderness in the lumbar paraspinal muscles as well as in the left lateral quradratus lumborum. He has good lumbar flexion and extension, and lateral side bending. His pain is markedly improved.
The doctor's impression was
Resolving pain after a fall with transverse process fractures.
Dr. Sellers recommended the applicant continue to treat with his chiropractor. He anticipated releasing the applicant at his next visit.
Indeed, when the applicant returned to Dr. Sellers on May 6, 2004, the doctor reported the applicant was doing a strengthening program with his chiropractor, and that he doing quite a bit better with only minimal pain in the left side. The doctor reported that the swelling on the left side was down quite a bit, that there was minimal tenderness there, and "the pain from his fractures is going away nicely." The doctor's plan was for two more weeks of therapy followed by a return to work without restrictions. He released the applicant to return for treatment as needed.
The applicant then returned to work for the employer. He continued, however, to treat with his chiropractor, Dr. Ostenson. Chiropractor Ostenson's note for May 17, 2004, documents right gluteal and hip flexor pain, which was not currently painful, and was at a level of 3 at the worst.
An August 16, 2004, note from Dr. Ostensen refers to low back and hip pain that varied at a level of 12 to 61 (presumably of 100), and was most typically about 32. A pain diagram showed numbness and aching in the left lower back, and stabbing pain in the right buttock. On that date, Dr. Ostenson set work restrictions limiting the applicant to medium level work (50 pounds maximum lift), with restrictions to occasional bending, climbing, twisting and reaching, and frequent squatting. See exhibit K.
The applicant had finished an assignment at Construction Professionals of Wisconsin Incorporated (CPI) on Tuesday, September 7. He stopped in at the employer's office on Friday, September 10, 2004 to drop off his timesheet from that earlier job. While there he spoke with the employer's staffing agent, Christina Goyette. She told him he was not needed the next week, but that the employer did have work--a painting job--at Omni Glass & Paint.
The applicant testified that the painting job exceeded his restrictions from Dr. Ostenson. Nonetheless, he testified that when he left he told Ms. Goyette, "Well, let me know when and where." Transcript, page 56. On cross-examination, the applicant added that he did not like to paint, and wanted at least $16 per hour if he was to do the job. Transcript, page 69.
Ms. Goyette testified that the job at Omni Glass started the following week, possibly as early as Monday. She explained that when she said the applicant was not needed the next week, she meant he was not needed at his previous assignment at CPI--which is reasonable given the context. She acknowledged that he told her he could not do the painting job because it required leaning which violated his restrictions. Ms. Goyette acknowledges as well that the applicant told her that he would do the job at Omni Glass for $16 per hour, but she responded that the wage was unrealistic as Omni Glass usually paid about $12 per hour. Transcript, pages 88-89. Ms. Goyette did testify that during this conversation, she made a remark apparently in the nature of the applicant getting an assignment as a Walmart greeter, a comment she stated was probably "not professional." She did not recall the applicant saying "Just let me know when and where" as he left, or anything else indicating that he had accepted the assignment.
Ms. Goyette's testimony establishes that the employer did not consider workers to have quit simply because they refused an assignment. Rather, the employer would just provide another assignment when it came available. It is reasonable to conclude that--despite his refusal of the Omni Glass job-- the employer ordinarily would have assigned the applicant back to CPI when work became available.
Ms. Goyette evidently contacted the worker's compensation insurer and informed it that the applicant had refused an assignment. For his part, the applicant called the worker's compensation insurer "for some reason" upon arriving home from his meeting with Ms. Goyette. The applicant testified that the insurer told him that since he had refused work he would not be getting temporary disability compensation. Transcript, pages 56, 59.
The applicant then returned to the employer's office that same day, September 10, extremely upset that Ms. Goyette had reported to the insurer that he had refused work. The applicant himself testified that he blew up, and behaved "like a belligerent fool." According to Ms. Goyette, he yelled and swore, leaned forward with his finger in her face, and threatened to sue.
After the applicant left, Ms. Goyette called him and told him he was fired for insubordination. On the following Monday, September 13, the applicant called Ms. Goyette to apologize. He called again on Wednesday, September 15. The employer refused to take him back to work.
After his discharge, the applicant worked for his brother-in-law, as an independent contractor. He returned to Dr. Sellers on September 17, 2004 and told him that while he had been doing well when he was off work (apparently this a reference to his time off work from January to May 2004), he began having pain again when he returned to work, mentioning specifically a catching in the hip. Not sure what was causing the problem, the doctor ordered another MRI. The doctor also referred him to Brian Lorbach, M.D., who--according to the employer's medical examiner--gave the applicant injections.
As discussed below, Dr. Ostenson set permanent restrictions on October 10, 2005. The applicant continued to work, subcontracting in construction jobs, for his brother-in-law. In January 2006, according to the applicant's DVR counselor, the applicant contacted the department's Division of Vocational Rehabilitation (DVR) about services. In August 2006, an Individualized Plan for Employment (IPE) was developed. The delay was due to DVR's waiting list. Transcript, page 17.
The IPE developed in August 2006 included GED training coursework at a vocational school from August to December 2006. The IPE refers to work on his GED through GOAL classes at the vocational school. His IPE was amended to allow for coursework toward a degree from the vocational school beginning in January 2007. He is pursuing a degree as a machine tool technician.
Chiropractor Ostenson has opined in written practitioner's reports (exhibits A and B) that the applicant broke off osseous structuring in his fall. The chiropractor added that, as a result, the applicant had neurologic impairment and resulting pain. The doctor estimated permanent partial disability at 7 percent, listing disabling factors including fracturing, spasming, limitation in range of motion, position imbalance, and chronicity. He set an October 10, 2005 end of healing date when the applicant could return to work subject to a restriction to a 50-pound of lifting and no ladder work.
The employer's medical examiner is Marc Aschliman, M.D. In his January 25, 2005 report (exhibit 5), Dr. Aschliman rated permanent partial disability at one percent for the fractures in the transverse process caused by the fall, and noted the applicant likely suffered a rib fracture too. However, Dr. Aschliman regarded the hip complaints as idiopathic, noting that the applicant did not complaint of radiating pain with the fall and first mentioned the hip catching complaint months after the fall. He thought the applicant could work without formal restrictions, though he should be prudent with heavy lifting, bending and twisting, and that certain activities could be associated with the development of low back pain. He found an end of healing (maximum medical improvement) date as of the date of his exam, January 19, 2005.
2. Discussion.
The parties raised three main issues before the ALJ: (1) temporary disability following the injury to the end of healing, (2) the permanent partial disability on functional basis once the applicant reached an end of healing, and (3) the vocational rehabilitation benefits under Wis. Stat. § 102.43(5) and 102.61 occasioned by the applicant's receipt of services from DVR.
a. "Straight" TTD.
The first issue concerns the temporary disability accruing due to wage loss after September 10, 2004 while the applicant was still in a healing period. Under the Brakebush(1) decision, a worker's temporary disability compensation cannot be cut off simply due to the worker's discharge from employment. The court of appeals adhered to the Brakebush holding in the more recent decision in Emmpak Foods.(2)
In this case, the respondent was liable for temporary disability after the injury during the healing period when the applicant experienced wage loss. However, the respondent's liability must take into account the first meeting on September 10, 2004. At that point, the employer offered the applicant an assignment within his restrictions at Omni Paint which the applicant refused without reasonable cause.
The ALJ found both that Omni Paint job did not conflict with Dr. Ostenson's restrictions and that the applicant probably did not make the "let me know the time and place" comment. The commission agrees with these findings, and in particular notes that nothing in Dr. Ostenson's August 2004 restrictions restricts the applicant from painting generally or leaning specifically. The ALJ also found, however, that there was some question as to whether Ms. Goyette actually offered the Omni Paint job to the applicant.
The commission is persuaded that Ms. Goyette actually offered the Omni Paint job to the applicant. First, the applicant testified that he accepted the job by saying "let me know the time and place" as he left. The ALJ rejected that testimony--as does the commission--but the fact the applicant claims he said it supports the conclusion the parties themselves regarded that an offer of work was made. Further, the conduct of both the applicant and Ms. Goyette after the first meeting on September 10 strongly suggests that they understood that an offer had been made and that the applicant refused it. That understanding explains why Ms. Goyette called the worker's compensation insurer immediately after the meeting. It explains the "some reason" why the applicant called the insurer as well, and then became upset and returned to the employer's office.
To the extent that the details of the offer of employment may not have been fully formulated by Ms. Goyette at the September 10, 2004 meeting, that would have been because the applicant's wage demands ended the discussion. Again, the work offered paid $12 per hour and the applicant wanted $16 per hour. On the record before it, however, the commission cannot conclude that the $12 per hour offer gave the applicant reasonable cause to refuse the job.
Finally, the fact that the employer may have kept the applicant in the technical status of "employee," albeit a nonworking employee, after the end of his assignment at CPI and after refusing the assignment offered at Omni Paint, is irrelevant to his claim for temporary disability on these facts. Again the applicant was eligible for temporary total disability when there was no work for him before September 10, 2004, regardless of whether he remained the employer's "employee" or not, as his wage loss was total. But that eligibility ended when he refused the assignment with Omni Paint. The possibility of a future assignment with CPI or another business does not change that result.
A worker who unreasonably refuses work within one's restrictions while in a healing period--a worker who in effect creates his own wage loss--is not entitled to temporary total disability. Indeed, Wis. Stat. § 102.43(9) now provides:
102.43(9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:
(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.
...
The department's interpretative footnote states:
191This subsection was created by 2005 Wis. Act 172, effective April 1, 2006, and codifies an employer's liability for benefits to an employee where there is a medical release of the employee for restricted work in the healing period, as found in Rule DWD 80.47 and as interpreted in Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623 (1997). "Misconduct" terminations of employment, in general, continue to not be a defense to liability for temporary disability benefits. This subsection now establishes 3 exceptions to that general rule. The exceptions are ... the employee's refusal to suitable employment without reasonable cause. If there is a dispute as to which of competing medical limitations are applicable to an employee under par. (a), the department retains the current practice of determining the appropriate restrictions and liability resulting from the application of such restrictions. This subsection applies to injuries occurring on and after April 1, 2006.... [Emphasis supplied.]
DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007 (WKC-P-1 (R.03/2008)).
While Wis. Stat. § 102.43(9) took effect on April 1, 2006, or after the date of injury in this case, the court of appeals recognized in Emmpak Foods that the statute codifies the past practice of the commission and the department. Emmpak Foods, Inc., 303 Wis. 2d 771 15.(3) See also: Neal & Danas, Worker's Compensation Handbook, 5.10 Supp (5th ed. 2007).(4) Indeed, prior to the enactment of Wis. Stat. 102.43(9), the commission frequently held that an injured worker's refusal of suitable work within his or her restrictions during a healing period ends the employer's liability for temporary total disability.(5)
In sum, this case does not pose the Brakebush issue of whether temporary disability liability ends with a discharge by the employer. Nor need the commission address whether the applicant's belligerent behavior leading to the discharge was the equivalent of refusing work. Rather, the question here is whether the applicant refused work within his restrictions without reasonable cause by not accepting the assignment at Omni Glass.
Because the facts establish that the applicant was offered work within his restrictions at Omni Paint but refused it without reasonable cause, he is ineligible for temporary total disability from the date of injury to the point of his healing plateau. Rather, he is entitled to temporary partial disability compensation for those weeks, as calculated under Wis. Stat. § 102.43(2), based on a refusal of work at $12 per hour.
b. Extent of PPD.
The next question is the extent of permanent partial disability. The applicant's chiropractor estimated it at one percent; the applicant's doctors at 7 percent. The ALJ awarded four percent.
The commission agrees with the ALJ decision in this regard. It is true that the applicant had a very bad accident, falling 15 to 16 feet in an open stairwell. But his actual residual disability is in line with the ALJ's award. The applicant was released without restriction by Dr. Sellers before having restrictions set by chiropractor Ostenson. The commission notes, too, the applicant actually showed the ALJ his back, and the ALJ described the area as discolored but otherwise normal.
c. TTD(6) during vocation rehabilitation
The last issue is the vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61. Because the applicant did receive compensation from a work injury and did receive DVR services, he has met the basic requirement of Wis. Stat. § 102.61(1). Still, the respondent offers four defenses to the applicant's vocational rehabilitation claim.
The "too late" defense. The first is that the applicant did not bring the claim soon enough. Wisconsin Stat. § 102.61(1r) provides:
102.61 (1r) An employee who receives a course of instruction or other rehabilitative training under sub. (1) or (1m) is subject to the following conditions and limitations:
(a) The employee must undertake the course of instruction within 60 days from the date when the employee has sufficiently recovered from the injury to permit so doing, or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation.
(b) The employee must continue in rehabilitation training with such reasonable regularity as health and situation will permit.
In this case, the applicant reached an end of healing by his own stipulation with Dr. Aschliman's exam on January 19, 2005. Dr. Ostenson, however, set a later end of healing date with permanent restrictions on October 5, 2005. The applicant sought DVR services in January 2006, but did not begin his coursework for the GED until August 2006 due to DVR's waiting list. Transcript, pages 16-17. 28-29. In between, the applicant did construction work.
Approximately 90 days passed from Dr. Ostenson's release in October 2005 until the applicant sought services from DVR in January 2006. The commission has denied compensation as claimed too late under Wis. Stat. § 102.61(1r) in the past. Rainer v. Thomas P. Zellmer, WC claim no. 90038142 (LIRC October 7, 1997); Huitfeldt v. James Cape & Sons, WC claim no. 94066876 (January 6, 1996); Hubatch v. Miller Brewing Company, WC claim no. 1981064308 (LIRC, March 5, 1999). However, the delays in these cases were on the order of years, rather than weeks.
In this case, it was not unreasonable to expect the applicant to try to work for some period after an end of healing has been declared by his treating doctor. Most of the delay in this case was due to DVR's backlog. The commission cannot conclude the applicant's claim should be barred under Wis. Stat. § 102.61(1r) given the facts in this case.
The insufficient medical support defense. The respondent also suggests that under the more credible opinion of its examiner, Dr. Aschliman--including the one percent permanent partial disability that he rated and the quasi-restrictions he set--vocational rehabilitation services would not be ordered. However, the ALJ reasonably credited Dr. Ostenson's restrictions on this record. Beyond that, the applicant's DVR counselor testified that he would have come to the same conclusions regarding the applicant's entitlement to vocational services under Dr. Aschliman's opinion or else would have sent the applicant out for a functional capacity evaluation. Transcript, page 12-13, and 28-29. The DVR counselor did not testify he would have declined to certify the applicant for services based on Dr. Aschliman's opinion. The DVR counselor added that he found Dr. Ostenson's restrictions more helpful anyway and that he would have read the two sets of restrictions as complimenting each other.
The commission's review of DVR's decision to certify a worker for services is extremely limited by case law. Essentially, the commission must accept DVR's
conclusion absent abuse of administrative power by DVR or the withholding of
highly material facts from that agency.(7) Neither has been shown here.
The coursework for GED-only defense. The employer also contends that it should not have to pay for the applicant's GED coursework when he was only going to school one day a week. However, as the ALJ observed, the court of appeals cautioned the commission against an overly narrow reading of the types of coursework contemplated under the vocational rehabilitation statute in Johnson v. LIRC, 177 Wis. 2d 734, 744 (Ct. App., 1993). The court did say that "the language of the statute contemplates a course of instruction requiring regular attendance." Ibid. However, the court went on to say
Recipients of benefits under sec. 102.61, Stats., are not limited to those receiving the retraining services of DVR. Recipients of job placement, on-the-job training, and home-based enterprise services may also be eligible if their individualized written rehabilitation programs provide for instruction on a regular basis. For example, if Johnson's home- enterprise program required that she take a class in accounting, such training would qualify under sec. 102.61. We also note that the statute does not require that the training be taught by educational institutions or be limited to classroom instruction only. Instruction which takes place on a regular basis may qualify.
In-Sink-Erator also argues that "instruction" must be interpreted narrowly because sec. 102.61, Stats., does not intend to provide benefits related to assistance in writing a resume or applying for jobs. We agree that "instruction" does not contemplate these types of services. Instead, it encompasses training which provides marketable job skills or enhances existing job skills to make them marketable.
Id., at 744-45.
The commission concludes the applicant's coursework taken to obtain a GED before beginning classes leading directly to a vocational degree was a course of instruction which qualifies the applicant for vocational retraining benefits under the Johnson v. LIRC standard.
The Wis. Stat. § 102.61(1g) defenses. The respondent also raises the effect Wis. Stat. § 102.61(1g) on the applicant's claim. The employer's discharge of the applicant for his belligerent outburst does not bar his vocational rehabilitation claim. The commission's prior holdings to this effect were recently discussed in Nuetzel v. Oshkosh Truck, WC claim no. 2000-056121 (LIRC, September 28, 2009).
Again, however, the refusal of the job offer at Omni Glass that preceded his discharge must be considered. Wisconsin Stat. § 102.61(1g) provides:
102.61(1g) (a) In this subsection, "suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90% of the employee's preinjury average weekly wage, except that employment that pays 90% or more of the employee's preinjury average weekly wage does not constitute suitable employment if any of the following apply:
1. The employee's education, training, or employment experience demonstrates that the employee is on a career or vocational path, the employee's average weekly wage on the date of injury does not reflect the average weekly wage that the employee reasonably could have been expected to earn in the demonstrated career or vocational path, and the permanent work restrictions caused by the injury impede the employee's ability to pursue the demonstrated career or vocational path.
2. The employee was performing part-time employment at the time of the injury, the employee's average weekly wage for compensation purposes is calculated under s. 102.11 (1) (f) 1. or 2., and that average weekly wage exceeds the employee's gross average weekly wage for the part-time employment.
(b) If an employer offers an employee suitable employment as provided in par. (c), the employer or the employer's insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) or for travel and maintenance expenses under sub. (1). Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under 29 USC 701 to 797b if the department determines that the employee is eligible to receive those services.
(c) On receiving notice that he or she is eligible to receive vocational rehabilitation services under 29 USC 701 to 797a, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the department to determine the employee's work restrictions. Within 30 days after the department determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.
The department's interpretative footnote provides:
223A carrier or self-insured employer is not liable for retraining if an employer offers suitable employment to the employee. For employees who receive services from the Division of Vocational Rehabilitation, suitable employment is defined as employment within the employee's permanent work restrictions, the employee has the necessary physical capacity, knowledge, transferable skills, ability to perform, and that pays not less than 90 percent of the employee's preinjury average weekly earnings. 2001 Wis. Act 37, effective January 1, 2002, created this amendment which defines suitable employment.
For employees who cannot receive services from the Division of Vocational Rehabilitation, suitable employment remains defined as a job within the employee's permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills, ability and which pays at least 85 percent of the employee's preinjury average weekly wage. See Rule DWD 80.49(4)(d) and (5).
The commission reads Wis. Stat. § 102.61(1g)(c) (and its interpretative note) to require an injured worker seeking vocational rehabilitation benefits to provide a copy of his restrictions to the employer at some point after receiving notice that he or she is eligible to receive vocational rehabilitation services. The employer then has a defense if it offers the injured worker suitable employment.
The statutory requirement that the applicant provide a copy of his restrictions was first imposed with the enactment of Wis. Stat. § 102.61(1g) in 2001 Wisconsin Act 37. Under its former practice, DVR used to contact the time-of-injury employer about returning to work--and the commission sometimes found an abuse of discretion and denied the claim if the DVR did not contact the employer. See: Manske v. Rasche Construction, WC claim no. 1998-016330 (LIRC, June 24, 2002). When the DVR changed its practice to eliminate the requirement of contacting the time-of-injury employer about a return to work in workers compensation cases, Wis. Stat. § 102.61(1g) was enacted to preserve the employer's right to notice of vocational rehabilitation claim and its ability to end the claim by putting the injured worker back to work.
In this case, it is not really clear when after "receiving notice that he [was] eligible to receive vocational rehabilitation services under 29 USC 701 to 797a," the applicant "provide[d] the employer with a written report ... stating the employee's permanent work restrictions." It is reasonable to conclude the employer was aware of Dr. Ostenson's restrictions by the time of the September 10, 2004 meeting and, as the ALJ found, probably earlier. But that was before the applicant was told he was eligible for DVR services. Arguably, the applicant did not comply with Wis. Stat. § 102.61(1g)(c) until January 2009, when he served his hearing application raising vocational rehabilitation issues and filed Dr. Ostenson's WKC-16-B.
However, the commission declines to deny the applicant's vocational rehabilitation claim before January 2009 on that basis. This case involves more than the situation where a worker is certified for DVR services after he has been discharged because of his work restrictions or because of unsatisfactory behavior. In this case, after the discharge, the applicant apologized for his outburst and asked the employer twice for his job back but was rebuffed on both occasions. Even after learning of his vocational rehabilitation claim, the employer has not offered the applicant reemployment. Consequently, the commission concludes that informing the employer of his desire to return to work in August 2006 when the applicant was certified for services would have been futile.
Since the employer had not offered work to the applicant as required to avail itself of the defense under Wis. Stat. § 102.61(1g)(c), the applicant is eligible for vocational rehabilitation benefits as of August 2006.
3. Award.
Neither the calculation of disability benefits in the ALJ's order, nor his award for medical expenses, is in dispute on appeal. Consequently, the commission adopts his findings on those issues as restated below, subject, of course, to the commission's findings regarding temporary disability from September 11, 2004 through January 19, 2005.
The applicant is entitled to compensation for temporary partial disability from September 11, 2004 through January 19, 2005, both dates inclusive, a period of 18 weeks and 3 days. Assuming weekly earnings of $480 during that period, the weekly wage loss was $311.20 ($791.20 minus $480), resulting in a wage loss percentage of 0.3933 ($311.20/$791.20), and a weekly temporary partial disability rate of $207.47 (0.3933 times $527.478(8)). In all, the applicant is entitled to temporary partial disability during this period in the amount of $3,838.16.
The applicant is also entitled to compensation for permanent partial disability at 4 percent compared to permanent total disability, or 40 weeks at $232 per week (the statutory maximum for injuries in 2004 totaling $9,280, of which the respondent has previously paid 10 weeks in the amount of $2,320, resulting in an award for additional permanent partial disability at $6,960. The applicant is also entitled to temporary total disability compensation during vocational rehabilitation, as calculated at the time of the ALJ's decision, in the amount of $48,364.17.
In all the amount of the compensation for temporary partial disability, additional permanent disability, and temporary total disability during vocational rehabilitation equals $59,162.33 . The applicant authorized a fee set under Wis. Stat. § 102.26 at twenty percent of the additional amounts awarded, or $11,832.47. That amount, plus costs of $185.27, shall be deducted from the applicant's award and paid to his attorney within 30 days. The amount payable to the applicant for disability compensation is $47,144.59.
Medical treatment expense, medical mileage, and vocational rehabilitation meals and mileage are awarded as set out in the Interlocutory Order below.
The respondent has conceded liability for increased compensation under Wis. Stat. § 102.57. This matter is remanded to the department for recalculation of that amount or increased calculation under this order.
NOW, THREFORE, the Labor and Industry Review Commission makes this:
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Donald Schneidewend, Forty-seven thousand one hundred forty-four dollars and fifty-nine cents ($47,144.59) in disability compensation.
2. To the applicant's attorney, John Edmondson, the sum of Eleven thousand eight hundred thirty-two dollars and forty-seven cents ($11,832.47) in fees and ($185.27) in costs.
3. To Appleton Chiropractic, Five thousand eight hundred and six dollars and forty-four cents ($5,806.44) in treatment expense.
4. To Primary Care Associates, Four hundred forty-seven dollars ($447.00) in treatment expense.
5. To Radiology Associates of Fox Valley, One thousand nineteen dollars ($1,019.00) in treatment expense,
6. To Theda Clark Medical Center/Appleton Medical Center, Two thousand eight hundred twenty-eight dollars and fifty-two cents ($2,828.52) in treatment expense.
7. To the applicant, the sum of One thousand two hundred twenty-one dollars and thirty-five cents ($1,221.35) in medical mileage, Four thousand nine hundred fifty dollars and seventy-two cents ($4,950.72) in mileage for vocational rehabilitation, and One thousand seven hundred ninety-three dollars and seventy-five cents ($1,793.75) in meal expense associated with vocational rehabilitation.
This matter is remanded to the Department of Workforce Development, Worker's Compensation Division, for calculation of the award for increased compensation under Wis. Stat. § 102.57 in accordance with this order.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed December 17, 2009
schneid . wrr : 101 : 1 ND
5.10, 5.40.
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission modified the ALJ's order with respect to the award for temporary disability during the healing period. The commission did not discuss witness credibility with the ALJ. The ALJ found as facts that the Omni Glass job was within the applicant's restrictions and that the applicant probably did not say "just let me know where and when" as he left the meeting with Ms. Goyette on September 10. The commission adopted these findings, but reached a different legal conclusion as to their effect; that is, that a job was offered and the applicant refused it without reasonable cause.
cc:
Attorney John Edmondson
Attorney Paul R. Riegel
Appealed to Circuit Court
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