CHARLES RENZ, Applicant
CARGILL FEED DIVISION, Employer
CHARTIS PROPERTY CASUALTY CO, Insurer
On July 7, 2006, the department issued an interlocutory order finding the applicant sustained two separate low back injuries arising out of and in the course of his employment with respondent Cargill Feed Division/Cargill Malt, the first injury occurring on November 16, 2002, and the second injury occurring on
May 16, 2005. Temporary disability and permanent partial disability were awarded with jurisdiction reserved. Respondents Cargill and Birmingham Fire Insurance Company of Pennsylvania appealed this decision to the commission, which on January 25, 2007, issued an order affirming the department's interlocutory order. The commission's decision was not appealed.
On June 5, 2007, the applicant submitted an application claiming permanent total disability and additional medical expense attributable to the effects of the November 2002 and/or May 2005 work injuries. On July 15, 2008, the department issued an interlocutory order finding permanent total disability effective January 18, 2006, together with liability for the claimed medical expense. Respondents appealed this decision to the commission, and on January 27, 2008, the commission issued an interlocutory order modifying and affirming the department's finding of permanent total disability and liability for medical expense.
Respondents appealed the commission's decision to Jefferson County Circuit Court, and on June 5, 2009, the Honorable Jacqueline R. Erwin issued a decision affirming the commission's decision. Respondents appealed to the Court of Appeals, District 4, which on June 29, 2010, reversed the circuit court decision, set aside the commission's decision, and remanded the matter to the commission for reassessment of the issue of whether or not respondents successfully rebutted the applicant's prima facie case of odd lot permanent total disability.
The commission has again reviewed the entire record in this matter in conjunction with the holding of the court of appeals, and hereby modifies and affirms the findings of the administrative law judge. The commission makes the following:
The prior findings of the department and the commission to the effect that the now-conceded low back injuries of November 16, 2002 and May 16, 2005, arose out of and in the course of the applicant's employment with Cargill Feed Division/Cargill Malt (employer), are incorporated herein by reference.
With regard to the issue of loss of earning capacity attributable to the two low back injuries, respondents assert that the analysis should proceed under the "displaced worker" theory. The employer terminated the applicant's employment effective September 1, 2005, prior to its workforce reduction effective in October 2005. After the workforce reduction the employer retained 14 employees, and at the hearing could not rule out the possibility that one of those retained might have been the applicant. Application of the "displaced worker" theory in this case would therefore involve speculation. In addition, the commission's ultimate finding of permanent total disability renders the theory irrelevant in this case.
Dr. Paul Anderson, the applicant's primary treating physician, assessed physical restrictions in a physical capacities questionnaire dated August 9, 2006.
Dr. Anderson restricted the applicant to sedentary work with 10 pounds maximum lifting; two hours each of standing, walking, sitting, or driving in an eight-hour work day; no bending, squatting, or climbing, with occasional reaching above the shoulders; and a part-time work restriction of between four and six hours per day.
Dr. William Monacci examined and evaluated the applicant at respondents' request. In his report dated December 14, 2007, Dr. Monacci opined that the applicant could return to full-time work but with restrictions of no lifting more than 20 pounds at waist level, no bending or stooping other than on an intermittent basis, and the freedom to change positions each hour during the workday.
The restrictions provided by these two physicians are not identical, but they are similar. Dr. Anderson restricts the applicant to part-time work, and Dr. Monacci restricts him to work that allows him to change positions every hour. Each of these restrictions is highly significant to an individual seeking employment on the general labor market. Both physicians severely restrict lifting and bending.
Dr. Anderson's limit of two hours on standing, walking, sitting, or driving in an eight-hour work day is particularly restrictive.
Based on careful review of the applicant's testimony, together with his medical/surgical records, the commission finds Dr. Anderson's restrictions to be credible.
Given those restrictions together with the applicant's age (birth date January 19, 1944), education (tenth grade with a subsequent G.E.D.), and capacity (six years as a shipping clerk, two years as a spot welder, and 36 years as a laborer for the employer), the applicant's vocational expert's opinion of permanent total disability constitutes a prima facie case for "odd lot" unemployability.(1) The employer was required to rebut this prima facie case of permanent total disability by demonstrating that the applicant "...is actually employable and that there are actual jobs available to him...making it more probable than not that the claimant is able to earn a living."(2)
Respondents' vocational expert's job listings, compiled through computer search and telephone contact by Barbara Lemke and her colleague, do not credibly satisfy the substantial burden for rebuttal of the prima facie case articulated in Beecher. The job listings Lemke compiled universally fail to include a full description, or in most cases any description, of the specific physical requirements of the job. Dr. Anderson's restrictions are severe and include a maximum of two hours sitting or two hours standing in one day, and a maximum of six hours of sedentary work in one day, which eliminates all the proposed full-time positions Lemke listed. The commission infers that Dr. Anderson's restrictions also make it probable that the applicant would not be hired for most part-time jobs, and that those for which he might be hired would involve work that was casual and intermittent, rather than "regularly and continuously available" to him.(3)
In accordance with Dr. Anderson's medical opinion and Timothy Greenya's vocational expert opinion, the commission finds that the combined effects of the November 2002 and May 2005 low back injuries resulted in the applicant becoming permanently totally disabled as of January 18, 2006. The matter will be remanded to the department solely for the purpose of calculation of the accrued and unaccrued compensation due the applicant for permanent total disability, as well as calculation of attorney fees and costs due the applicant's attorney. Calculations would include offset for social security disability payments, if applicable.
Reimbursement is due Unicare in the amount of $4,873.76.
Based on Dr. Anderson's medical opinion, an interlocutory order is appropriate.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The matter is remanded to the department solely for the purpose of calculation of the compensation due the applicant for permanent total disability, as well as the amounts due for attorney fees and costs.
Within 30 days from this date, respondents shall pay to Unicare the sum of Four thousand eight hundred seventy-three dollars and seventy-six cents ($4,873.76).
Jurisdiction is reserved for such further findings and orders as may be warranted, which would include any dispute concerning the department's calculations of the amounts due.
Dated and mailed October 25, 2010
renzcha : 185 : 5 ND6 6.32
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In accordance with the majority holding of the court of appeals decision issued in the applicant's case on July 29, 2010, the commission eliminated consideration of any information provided or not provided to the prospective employers listed in Barbara Lemke's employment market survey. The commission's analysis focused on the labor market information obtained in that survey. As detailed in the above commission findings, the survey information obtained, together with the other information found in Ms. Lemke's vocational report, failed to successfully rebut the applicant's prima facie case for permanent total disability. In assessing whether or not a prima facie case for permanent total disability has been successfully rebutted by the job openings or labor market surveys obtained by a respondent, the commission must take into account the applicant's age, experience, physical restrictions, and other factors set forth in Wis. Admin. Code ch. DWD 80.34. The commission must then carefully weigh those factors against the information provided by the respondent.(4) The applicant established a prima facie case for permanent total disability, and it became the employer's burden to provide credible evidence demonstrating that there was an actual job available to him. The survey and other information provided in this case by Ms. Lemke failed to credibly carry that burden.
cc:
Attorney Charles Soule
Attorney Eric W. Langell
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