RUDOLFO GOMEZ SR, Applicant

REPUBLIC SERVICES OF WIS GP INC, Employer

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

Dated and mailed April 27, 2010
gomezru : 185:5 ND 5.10

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission agreed with the administrative law judge that Dr. Prpa's and Dr. Mawn's opinions attributing the applicant's back disability to the fall at work on May 5, 2006, were credible. It is not persuasive that at one point during his arrest for an OWI offense on May 6, 2006, the applicant mentioned a right leg injury to the police officers, but not a back injury. After he had fallen in the paddy wagon, the applicant stated that his back hurt on the right side, which would be consistent with the claimed work-related injury. He also stated that he hit his head when he fell in the paddy wagon, but there was no statement linking this fall to his right-sided back pain. Dr. Cederberg cited the facts of the OWI arrest, but did not actually opine that the applicant had injured his back in the paddy wagon fall. Dr. Prpa's and Dr. Mawn's opinions regarding causation are credible given the likelihood of injury from the work-related fall to uneven ground, that included rolling over a mound of dirt.

Respondents also dispute the administrative law judge's finding that Wis. Stat. § 102.43(9)(c), is not applicable to the applicant's temporary total disability payable after he was fired for reporting to work under the influence of alcohol on June 28, 2006. The statute refers to "drug use" but not to alcohol. Wis. Stat. § 102.58, which reduces compensation by 15 percent for an injury caused by alcohol use, specifies "intoxication by alcohol beverages." Effect must be given to every word of a statute, and where a specific term is used in one part of a statute but not in another part, it is presumed that the legislature used different language for a reason. State v. Quintana, 2008 WI 33, 14, 60, 308 Wis. 2d 615, 748 N.W.2d 447. Accordingly, Wis. Stat. § 102.43(9)(c) is not applicable to the applicant's discharge.

The applicant also petitioned and claimed that as a result of the work injury he is permanently and totally disabled. The physical restrictions assessed by the various physicians are very similar. However, Dr. Prpa's and Dr. Cederberg's restrictions, given under the assumption of a work-related injury, both provide that the applicant is capable of sitting and standing "as tolerated." Dr. Mawn's restrictions indicate the applicant should sit for no more than 30 minutes at a time, and stand for no more than 30 minutes at a time. Clearly, there is an element of subjective medical assessment that enters into each physician's restrictions, and this is particularly true given the "as tolerated" assessments. The commission carefully reviewed the medical opinions, as well as the applicant's testimony concerning his physical capacities, and concurred with the administrative law judge that Dr. Mawn's restrictions are credible. The applicant has not presented a prima facie case for permanent total disability. Considering all of the relevant factors set forth in Wis. Admin. Code ch. DWD 80.34, the commission agrees with the administrative law judge's assessment of 35 percent loss of earning capacity, which is within a range between the vocational experts' opinions (not including John Birder's alternate opinion of permanent total disability).

The applicant may be required to undergo work-related back surgery in the future, and could thereupon sustain additional disability. The interlocutory nature of this decision addresses that contingency.

cc: Attorney Mark McGillis
Attorney Patrick A. Callahan

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uploaded 2010/06/14