PATRICK J BROWN, Applicant

WATERWORKS SPECIALISTS INC, Employer

AUTO OWNERS INS 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, except that it makes the following modifications:

1. Delete the last paragraph of the ALJ's findings of fact and substitute:

"Applicant is entitled while he was unable to work from the date of injury on September 2006 until he reached an end of healing on
April 16, 2007. Respondent paid temporary total disability from December 9, 2007 to May 17, 2007.

"Respondent did not pay temporary disability for the period from October 10, 2006 to December 8, 2006. Respondent asserts that it paid wages in lieu of disability compensation during that period. However, only applicant testified on this point at the hearing. The applicant testified that he and the employer had an informal agreement under which his overtime hours were deferred when the employer was not doing well financially and then paid when the employer was financially able to pay them. He testified that the payments that he received from the employer from October 10 to December 8, 2006 while he was off work due to the work injury were to compensate him for such previously earned, but unpaid, hours of overtime.

"It is true that if the employer pays a worker compensation for temporary disability or continues a worker's wages while he is otherwise disabled, the worker is not also entitled to temporary total disability paid by the employer's worker's compensation insurer. This is clear from Employers Mutual v. Industrial Comm., 230 Wis. 670, 681, 284 N.W.548, 553 (1939), where the Supreme Court stated:

When an employee is injured and is wholly or partially disabled he ceases ordinarily to earn wages and as a result sustains a wage loss. Under such circumstances he is entitled to compensation. But if his employer continues to pay him his full wages he cannot collect compensation from him because he has in fact sustained no wage loss. He is, of course, entitled to compensation, but if he is paid full wages during the time of his disability he obviously has sustained no wage loss. Whether the employer carries his own compensation risk or has it carried by an insurance company, can be of no materiality. One who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages. Compensation must bear some reasonable relation to the loss which an injured employee has sustained.

"On the other hand, the Supreme Court has also held that a donation or gift from an employer to an employee during a healing period does not absolve the employer or his insurer from liability for indemnity for wage loss. Modern Equipment Co. v. Industrial Comm., 247 Wis. 517, 519 (1945). This is true, even when the 'donation' corresponds to the amount that would have been paid as salary. Ibid.

"The amounts paid here, of course, are not a donation. But they are also not compensation for wage loss during the period in which they were paid. Rather, the amounts paid to the applicant from October 10 to December 8, 2006 were the payment of a prior debt the employer owed the injured worker. Simply because the amounts were paid for wages from another period, or they correspond to the amount of wages that the applicant would have been paid had he not been injured, that does not make them payments for wage loss as a substitute for temporary disability compensation. Respondent is therefore liable for temporary total disability compensation for the period at issue, its payment of deferred overtime wages notwithstanding.

"On appeal, the respondent argues that the applicant--in citing a wage statute, Wis. Stat. § 109.03--is raising a different legal theory than the one he relied on at hearing. However, the applicant's position has been all along that the money he was paid was for back wages, not for wage continuation or temporary disability. Beyond that, of course, the court of appeals held UPS v. Lust, 208 Wis. 2d 306, 313-14 (Ct. App. 1997) that:

The position taken by the parties at the administrative proceedings does not control the agency's ultimate resolution of the case.... LIRC has the duty to 'find the facts and determine the compensation irrespective of the presentation of the case by the attorneys.' [Citations omitted.]

"Accordingly, applicant is entitled to temporary total disability for the period from October 10, 2006 to December 8, 2006, a period of 8 weeks and 3 days. At the weekly rate of $406.25 (two-thirds of the conceded wage of $609.38), the total due in temporary total disability for this period is $3,453.15.

"However, respondent claims an overpayment of $3,229.05, based on the social security reverse offset that began to apply to applicant's award under Wis. Stat. § 102.44(5) after he qualified for social security disability on March 1, 2007. Specifically, it temporary disability at applicant's full weekly rate of $406.25, for the 11-week period from March 1, 2007 through May 16, 2007, rather than the social security reverse offset rate of $112.70. Applicant does not challenge this amount, and the materials at exhibit 3 indeed support a finding of an overpayment in the amount of $3,229.05.

"The amount due in temporary disability under this order, then, is $224.10. Applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded, or $44.82. That amount shall be paid to applicant within 30 days. The remainder, $179.28 shall be paid to applicant's attorney within 30 days.

"Because applicant has healed without disability or need for further treatment as of April 16, 2007, as opined by Dr. Klemme, this order shall be final."

2. The ALJ's ORDER is deleted and second and third paragraphs of the commission's order are substituted therefore.

The findings and order of the administrative law judge, as modified, are affirmed in part and reversed in part.

Within thirty days, the employer and its insurer shall pay all of the following:

1. To the applicant, Patrick Brown, One hundred seventy-nine dollars and twenty-eight cents ($179.28) in disability compensation.

2. To the applicant's attorney, James L. Bartells, Forty-four dollars and eighty-two cents ($44.82) in attorney fees.

This order is final.

March 31, 2011
brownpa.wmd:101:5 ND6 6.4

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

The applicant was born in 1955. He began working for the employer in 2003. His job included installing hoists for boats, piers, maintenance on boats and putting on tops on hoists. This is relatively heavy work that required at times lifting over 100 pounds. He claims he sustained an injury to his back on September 29, 2006. The employer and its insurer concede an injury, but contend it healed without permanent disability or need for treatment by April 16, 2007.

The applicant seeks additional seeks additional compensation for temporary disability, permanent disability and medical expenses. He relies on the opinion of his treating doctor, Perico Arcedo, D.O., who opined in his practitioner's report at exhibit A that the applicant's work injury directly caused his disability, which he diagnosed as SI joint dysfunction and status post lumbar laminectomy. In other words, Dr. Arecedo opines that the applicant's work injury directly caused the applicant's SI joint dysfunction and the need for the surgery performed by
Dr. Weissman.

However, the commission, like the ALJ, credits expert medical opinion of the employer's examining doctor, William R. Klemme, M.D. He opines that the applicant's surgery decompressed the nerve root that was entrapped due to degenerative bony and ligamentous changes, rather than any direct injury from the work injury. Dr. Klemme based this opinion on his reading of Dr. Weissman's operative report, stating:

...The reader will note that Dr. Weissman's pre-operative diagnosis was "herniated lumbar disc, lumbar spondylosis, and lumbar radiculopathy." In the body of the operative report, however, Dr. Weissman documented that he did not identify a disc extrusion either cephalad or caudad to the disc space. This included direct visualization and inspection under the surgical microscope. He documented that he found no fragments above or below the disc space. He indicates that the L5 nerve root was explored circumferentially and that his post-operative diagnosis was "spondylitic stenosis with bony entrapment at L5. No evidence of herniated intervertebral disc." Indeed Dr. Weissman did not perform annulotomy or in any way enter the disc space to provide decompression. These documented findings, in my professional medical opinion, clearly show that there was no evidence of any acute structural abnormality occurring at the L4-5 interspace that could have resulted from Mr. Brown's alleged work incident of September 29, 2006.

Exhibit 2, report of Klemme dated May 5, 2010, pages 13-14.

Dr. Klemme's opinion is better reconciled to the medical records, including especially the findings during the applicant's surgery, than Dr. Arcedo's. The commission notes further that Dr. Arcedo's practitioner's report does not opine that the work injury aggravated the applicant's underlying degenerative bony condition beyond its normal progression, nor does the commission read his treatment notes to give that opinion. Rather, he opined that the work injury directly caused the applicant's disability, a conclusion the commission cannot square with Dr. Weissman's findings during surgery. The applicant has the burden of proving beyond a legitimate doubt all facts essential to the recovery of compensation, Leist v. LIRC, 183 Wis. 2d 450, 457 (1994) and he has not met that burden here. Like the ALJ, the commission concludes the applicant has failed to establish that his work injury resulted in any temporary or permanent disability after the April 16, 2007 healing plateau set by Dr. Klemme in his May 2007 report.

The next issue is the applicant's claim for temporary disability from October 10, 2006 to December 8, 2006. This issue is discussed in the material inserted in the ALJ's decision by modification, as set out above.

The commission did not consult with the presiding ALJ about the credibility of the applicant's testimony regarding the agreement between the applicant and the employer leading to the payment of deferred overtime wages during the period from October 10 to December 6, 2006. While the ALJ did not order payment of temporary disability during this period, the ALJ did recite the applicant's testimony regarding the payment of deferred overtime wages without finding that he discredited that testimony.

Only the applicant testified at hearing, and his testimony regarding the deferred payment of overtime wages was consistent on direct and cross-examination. Transcript, pages 14-15, 45-55, 61. Again, the ALJ's decision recites the applicant's uncontradicted testimony on this point. Thus, this is not a situation

where an examiner hears conflicting testimony and makes findings based upon the credibility of witnesses, and the commission thereafter reverses its examiner and makes contrary findings

Braun v. Industrial Comm., 36 Wis. 2d 48, 57 (1967). Rather, the commission simply reached a different legal conclusion on essentially the same facts as found by the ALJ, based on the applicant's uncontradicted hearing testimony.

cc: Attorney James Bartells
Attorney Jarrod J. Papendorf

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2011/05/31