KATHERINE KAUK, Applicant

WOLF APPLIANCE COMPANY LLC, Employer

SENTRY INSURANCE A MUTUAL 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.

Dated and mailed:  January 20, 2011
kaukkat : 175 : 5 ND6 6.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining that as a result of her work injury on February 23, 2007, the applicant is permanently and totally disabled on an odd lot basis. The employer contends the administrative law judge should have credited the opinion of
Mr. Schutz, who prepared a vocational evaluation on behalf of the employer, who stated in his report dated September 30, 2009, the applicant's most likely post injury employment options revolve around service industry types of employment. Mr. Schutz noted the applicant has the ability to perform select lifts up to 20 pounds at a time, and has difficulty carrying and she needs to use a cane for balance. Mr. Schutz stated the applicant is able to mix sitting, standing and walking for a full work day.

Mr. Schutz opined the applicant could work as a counter or rental clerk, cashier, retail salesperson, desk clerk, file clerk and some entry level receptionist type positions. Mr. Schutz admitted that given the applicant's age and need for accommodations and work history she may have some difficulty competing for the best and highest of the positions in these groups, however, employability in all of them is probable. In addition, Mr. Schutz stated concerning Dr. Deshmukh's assessment, the applicant should change postures "when possible", this is a significant distinction between a restriction that the applicant must change positions as necessary or as needed. However, the commission agrees with the administrative law judge that the phrase "when possible" applied to the applicant's need to change positions was intended to be closer to the concept of "as needed," than it was to a more expansive view that her need to change positions regularly can simply be ignored as the demands of the job so dictate.

The applicant credibly testified to the nature and extent of her ongoing restrictions due to her work injury on February 23, 2007. The applicant underwent a six-level laminectomy and fusion from the bottom of C2 to C7 and T1 as a result of her work injury, and has undergone extensive physical therapy and occupational therapy but continues to walk with a cane because of balance problems. Dr. Deshmukh completed a WKC-16-B dated August 5, 2008, in which he assessed the applicant with 71 percent permanent partial disability due to her work injury on February 23, 2007, and subsequent six-level fusion surgery, including alternating between sitting and standing when possible.

Dr. Lyons evaluated the applicant on December 8, 2008, and agreed the applicant suffered 60 percent permanent partial disability due to her six-level fusion.
Dr. Lyons also agreed that permanent restrictions are appropriate with no lifting greater than 20 pounds, no kneeling, squatting, crouching, no working with arms over head, no crawling, no ladder climbing and no balancing on uneven surfaces. Dr. Lyons noted that all of these restrictions are for her residual markedly spastic gait which is unlikely to improve. Dr. Lyons stated the applicant also has early involvement of her upper extremities and this may well progress.

The applicant testified that following her fusion surgery, a lot of the numbness in her neck and shoulders went away but the numbness below her waist continued. The applicant testified her feet are numb and she needs to use a cane in order to ambulate. The applicant testified she is able to stand for periods of time to cook at home and is also able to drive using her feet to operate the foot pedals despite her numbness in her lower extremities. The applicant continues to have severe pain in her back and shoulders due to the work injury. The applicant testified to disruption in her sleep pattern due to the work injury and cramping in her legs which can occur at any time during the day or evening.

The evidence indicates the applicant was 67 years old at the time of the hearing, and Ms. Hindson, the applicant's vocational expert, noted that despite the applicant's age, she had no plans to retire and she has a high school degree with virtually no computer skills other than what she has taught herself and the limited data entry she did at work. Ms. Hindson noted the applicant does not know how to type which is a vocational liability, and her work history includes that of a product assembler, cheese blender, and most of her jobs have been performed at the medium level, although she did lighter work many years ago when she operated a sewing machine. The applicant has done factory work, assembling products by hand and warehouse work that has involved working on her feet.
Ms. Hindson opined that while there may be some jobs available for the applicant, they are of such limited quantity, quality or dependability that a stable labor market does not exist. Ms. Hindson opined that given the applicant's restrictions, lack of education and vocational skills, to a reasonable degree of vocational probability, the applicant is permanently and totally disabled according to the odd lot definition. The administrative law judge appropriately noted the applicant has a noticeable inability to turn her head more than 30 degrees along with instability even when walking with a cane, and at her advanced age would also contribute to many employers reluctance to hire her and train her.

The commission credits Dr. Deshmukh's restrictions, as well as Ms. Hindson's report. The applicant credibly testified that she is unable to sit or stand in one position for very long and needs to change positions frequently. The applicant has serious balance problems and inability to walk and carry items. Dr. Deshmukh's WKC-16-B dated August 5, 2008, reaffirms his belief the applicant has severe restrictions in lifting more than 20 pounds, kneeling, crawling, squatting and walking on uneven surfaces. Given the applicant's work history, education and lack of transferable skills, and given the applicant's age and severe physical restrictions and the other factors contained in Wis. Admin. Code § DWD 80.34(1), the evidence is sufficient to establish the applicant is permanently and totally disabled on an odd lot basis due to her work injury on February 23, 2007, and subsequent surgery.

cc: Attorney John Neal
Attorney James Goonan

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