CHARLES SCHLESNER, Applicant
COOPER POWER SYSTEMS LLC, Employer
COOPER POWER SYSTEMS LLC, Insurer
The applicant filed an application for hearing in February 2010 seeking compensation related to a left shoulder injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 19, 2010. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and a compensable left shoulder injury. The respondent also conceded and paid disability compensation, including compensation for permanent partial disability at 45 percent compared to amputation of the arm at the shoulder.
At issue was the nature and extent of disability beyond that conceded. Specifically, the issue is whether the applicant entitled to permanent partial disability at fifty percent compared to amputation at the shoulder as a result of his surgical shoulder replacement or prosthesis, or whether the respondent was entitled to deduct a five percent pre-existing disability and so was liable only for permanent partial disability at 45 percent.
The ALJ issued his decision in the applicant's favor on July 27, 2010. The respondent filed a timely petition for commission review.
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 makes the following:
In 2004, the applicant began experiencing shoulder pain. He underwent treatment culminating, eventually, in a shoulder replacement surgery, or prosthesis. He now claims disability from based on a December 16, 2004 date of injury due to occupational exposure to that date.
The applicant's treating doctor, William Pennington, M.D., estimated permanent partial disability at the 50 percent compared to amputation at the shoulder, which is the minimum for a shoulder prosthesis under Wis. Admin. Code § 80.32(7). In response to the question "[p]rior to this accident or illness, did the employee have any permanent disability?" Dr. Pennington responded "no."
However, the applicant in fact had permanent partial disability at five percent in his left shoulder, for which he had previously received compensation as set out above. The commission interprets the administrative code and prior caselaw to require a deduction for pre-existing disability due to a prior work injury in cases such as this.
In Levi Thunder v. Red Cedar Steel Erectors, Claim no. 1999-047240 (LIRC, June 23, 2005), the commission addressed an injury occurring in 1999, with pre-existing disability from an injury in 1985. The commission explained that while employers are entitled to deduct a pre-existing disability when a subsequent work injury causes the need for a surgery, when a work injury causes the need for multiple surgeries there is no deduction as there is no "pre-existing" disability.
The commission stated
The employer ... points to Wis. Admin. Code § 80.32(1) which states that in applying the code minimum disability ratings, the affected body part is assumed to have been without prior disability, and that an appropriate reduction should be made for pre-existing disability. ....
[W]hen a work injury makes more than one surgery necessary, the worker is entitled to at least the minimum for the surgeries he must undergo.
Glenn May v. Daimlerchrysler Corporation, WC claim no. 1999-024036 (LIRC, May 7, 2004),
aff'd sub nom. ... [DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1.] In the
May case, the commission followed its prior holding that in a case where one work injury results in the need for two surgical repairs to the same level of the body, the reduction for pre-existing disability would not apply.
The language of the rule itself allowing for reductions only in the case of "preexisting disability" follows the principle that an employer should not have to pay compensation for pre-existing disability that can be separated from the effects of a subsequent work injury. Green Bay Soap Co. v. ILHR Department, 87 Wis. 2d, 561, 566, 275 N.W.2d 190 (1979).
...What of the pre-existing disability going back to the 1980s? The commission has previously deducted such ratings from ratings following surgeries done for subsequent work injury. [Citing cases.] Such a deduction, of course, is consistent with Green Bay Soap.
See also Lenegar v. Pepsi Cola WC claim no. 2005-007181 (LIRC, April 9, 2007); See also Taylor v. Divine Savior Hospital and Nursing Home, WC claim no. 2006-021498 (LIRC, July 16, 2009 (modified July 29, 2009).(1) The commission's practice regarding deductions for pre-existing disability received at least tacit approval in DaimlerChrysler v. LIRC, 2007 WI 15, 25-31, 299 Wis. 2d 1.
Here, the applicant had pre-existing disability from a prior surgery to treat an earlier injury. That pre-existing disability much be accounted for under Wis. Admin. Code § 80.32(1) and Green Bay Soap. Consequently, the respondent correctly deducted the five percent pre-existing disability from its liability in this case. No compensation for permanent partial disability beyond the 45 percent already paid is currently due.
In reaching this result, the commission interprets Dr. Pennington's report to intend to rate permanent disability at the administrative code minimum for a shoulder replacement or prosthesis. While his report does mention pain, loss of motion, and weakness as elements of disability, the commission must conclude that the doctor regarded any such symptoms as no more than the normal consequence of a shoulder prosthesis surgery and covered under the code minimum rating. The commission cannot conclude that the doctor meant to go above the code minimum, as the doctor's report assessing a 50 percent permanent partial disability clearly indicates he was not aware there was any pre-existing disability.
The applicant's hearing application does mention additional treatment expense. Further, given the necessity of shoulder replacement surgery to treatment the work injury, the commission cannot rule out the possibility for future disability. Consequently, this order shall be left interlocutory to permit additional orders and awards regarding medical expense and future disability compensation.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
No additional disability compensation is due at this time.
Jurisdiction is reserved for further orders and awards as may be warranted and are consistent with this decision.
Dated and mailed: February 28, 2011
BY THE COMMISSION:
schlesn.wrr:101:9 ND6 6.19
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In this case, the ALJ declined to deduct the five percent disability for the prior injury in 2000 from the 50 percent awarded for the injury 2004 relying on DaimlerChrysler v. LIRC, 299 Wis. 2d 1, 24-31. However, as discussed above the DaimlerChrysler holding applies where there are multiple procedures to treat one work injury. That is not the case here.
In other words, the commission reversed the ALJ because it reached a different conclusion after applying the facts--which are not at issue--to the law. Because the commission's reversal does not rest on a differing view of witness credibility, no credibility conference was held with the ALJ.
cc:
Attorney James G. Nowakowski
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