PATRICK J. REHLINGER, Applicant
MENARD INC, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
The applicant filed a hearing application in July 2009, seeking compensation for loss of earning capacity related to a low back injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 2, 2010 and July 15, 2010 (and the parties stipulated that the record should included testimony from two prior hearings on October 31, 2007 and April 8, 2008), with a close of the record on August 17, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable low back injury on March 17, 2006, and an average weekly wage at the time of injury of $572. The respondent also conceded and paid temporary total disability for various periods, as well as permanent partial disability at 3 percent totaling $7,260. The sole issue before the ALJ was the applicant's claim for permanent partial disability on a vocational basis for loss of earning capacity.
On November 4, 2010, the ALJ issued his decision in this matter. 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:
The applicant was born in June 1971, making him 34 on the date of injury, and 39 as of the close of the hearing record. He graduated from high school in 1989. Before his injury, he had no relevant post-secondary education, and little formal vocational training. His employment before starting work for the employer in September 2000 involved unskilled labor and sales.
After beginning work for the employer in 2000, the applicant worked as a salesperson, then as an assistant manager in the employer's wall covering department. He later worked in the employer's receiving department, performing a variety of duties including operating a forklift, unloading trucks, stocking, and entering inventory. He did lifting, twisting and bending throughout the day.
It was in this job in the employer's receiving department that the applicant sustained the conceded injury on March 17, 2006. Specifically, he injured his back, suffering an L5-S1 herniated disc with left lumbar radiculitis (or radiculopathy) which his treating doctor, Andrew N. Vo, M.D., estimated resulted in permanent partial disability on a functional basis at 3 percent to the
whole body.
Following this injury, Dr. Vo also set permanent work restrictions, outlined at Exhibit E. The doctor's restrictions allow the applicant to do light medium work, lifting 20 pounds frequently, with occasional lifting or carrying objects weighing up to 30 pounds. Dr. Vo also permitted bending on an occasional (11 to 33 percent) basis as well as twisting/pivoting on an occasional basis. In a return to work/physical capability form dated July 10, 2006, Dr. Vo added the restriction that the applicant be allowed to alternate between sitting, standing and walking. See Exhibit J. See also Exhibit M.
The respondent had the applicant examined by David R. Zeman, M.D., whose report dated October 10, 2006, is at Exhibit 2. Like Dr. Vo, Dr. Zeman opined that the applicant's work injury caused a 3 percent permanent partial disability based on a diagnosis of an L5 herniated disc with left S1 radiculopathy. Dr. Zeman's permanent work restrictions, however, were somewhat different than Dr. Vo's. Specifically, Dr. Zeman opined that the applicant was subject to a 45-pound maximum lifting restriction with limited twisting and bending.
In April 2006, the applicant returned to work for the employer as a cashier. He testified, credibly, that he was bending, twisting and pivoting as often as 200 times per hour in this job as he would move merchandise and scan its universal product code (UPC). Further, the employer's human resources coordinator,
Janel Swoboda, testified that the cashiering job required frequent bending and twisting, as well as occasional lifting up to 40 pounds. See July 15, 2010 transcript, pp. 192
et seq.
Ms. Swoboda's testimony suggests that while the job of cashier might on some days or at some times exceed the limited twisting and bending restrictions by its own examiner Zeman (and the occasional bending and twisting/pivoting restrictions set by the applicant's treating doctor Vo), on other days or times it would not. Her testimony also indicates that the employer expected the applicant to self-police or stay within his restrictions while performing the job. Along similar lines, she testified that he could have asked for help with lifting over his restrictions, could have sat on a stool between customers to accommodate the restriction of alternating between sitting, standing and walking, and could have asked for a break when required. However, before the applicant could alternate positions, he was required to contact his supervisor to obtain a replacement cashier.
The applicant performed the work as a cashier for several months. However, he experienced pain and discomfort when cashiering. As a result, Dr. Vo issued his July 2006 addendum to his restrictions, providing that the applicant should be allowed to alternate between sitting, standing and walking. The job continued to cause pain, however, even with the accommodations provided. In October 2006, the applicant quit his job with the employer, because the cashier work aggravated his back and he found the work too painful to continue.
Thereafter, the applicant underwent vocational retraining as a paralegal, in a program approved by the department's Division of Vocational Rehabilitation. Specifically, the applicant graduated from Kaplan University in January 2009 with an Associate of Applied Science Degree in Paralegal Studies. He had a cumulative grade point average indicative of superior performance. His claim for worker's compensation under Wis. Stat. § § 102.43(5) and 102.61 during this period of vocational retraining was resolved by limited compromise.
After numerous inquiries at law firms, the applicant obtained work as a paralegal for a firm at $9.50 per hour, 20 hours per week. He owns a home and is helping to raise a teenage daughter, and so is reluctant to leave the central Wisconsin area where he lives. He has looked for other, full-time work as a paralegal, but is reluctant to leave a part-time job with some security, for a full-time job with a new employer in an uncertain job market.
At issue, again, is the applicant's permanent partial disability on a vocational basis for loss of earning capacity. Wisconsin Stat. § 102.44(6) provides in relevant part:
102.44(6)(a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.
(g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal."
In addition, Wis. Admin. Code DWD 80.34 provides:
DWD 80.34 Loss of earning capacity. (1) Any department determinations as to loss of earning capacity for injuries arising under s. 102.44 (2) and (3), Stats., shall take into account the effect of the injured employee's permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors:
(a) Age;
(b) Education;
(c) Training;
(d) Previous work experience;
(e) Previous earnings;
(f) Present occupation and earnings;
(g) Likelihood of future suitable occupational change;
(h) Efforts to obtain suitable employment;
(i) Willingness to make reasonable change in a residence to secure suitable employment;
(j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program; and
(k) Other pertinent evidence.
The commission is satisfied that it is appropriate to reach the issue of loss of earning capacity under Wis. Stat. § 102.44(6)(b), despite the fact the employer returned the applicant to work as a cashier with less than a 15 percent wage loss, because the employee's physical limitations prevented his continuing in that employment. The ALJ, who could see the applicant as he testified, believed him about the pain he experienced when cashiering.
Further, the commission can readily conclude that the applicant, having tried to work as a cashier for the employer for several months between April and
October 2006, simply found the work too painful to continue. Again, the applicant's complaints during July of 2006 led Dr. Vo to amend his work restrictions as set out above. Further, the applicant credibly testified that the job as he performed it involved considerable bending, twisting and pivoting. Indeed, the commission reads the testimony of the employer's human resources coordinator, Janel Swoboda, to tacitly acknowledge that the cashier work often exceeds the restrictions set by both Dr. Zeman and Dr. Vo.
In sum, the commission finds further that the applicant's job as a cashier required him to engage in frequent bending, twisting or pivoting in violation of Dr. Vo's restrictions, and that he also could not change position to the extent required by Dr. Vo's restrictions. Because the work the employer provided exceeded Dr. Vo's restrictions (and, as stated above, Dr. Zeman's restrictions), the commission shall consider the applicant's claim for loss of earning capacity under Wis. Stat. § 102.44(6)(b).
The next issue is the extent of the applicant's loss of earning capacity. At the outset, the commission finds that Dr. Vo's work restrictions are more credible than Dr. Zeman's. The commission believes that Dr. Vo's more limiting restrictions better state the work restrictions necessary to permit full-time employment for a person with an L5 herniated disc with left S1 radiculopathy.
The applicant's vocational expert, Mr. Guckenberg, originally opined that the applicant had a 10 percent loss of earning capacity under Dr. Vo's restrictions. See Exhibit B, October 15, 2009, report of Michael J. Guckenberg, p. 9. However, the applicant has had difficulty finding full-time work as a paralegal, and so, on March 29, 2010 Mr. Guckenberg issued a second, supplemental report increasing his estimate of the applicant's loss of earning capacity under Dr. Vo's restrictions to a range from 20 to 25 percent. See Exhibit A, page 2. For its part, the respondent's vocational expert submitted a vocational report from Nancy Steinback McCaskey opining that the applicant has a loss of earning capacity under Dr. Vo's restrictions in the range of 5 to 10 percent. See Exhibits 5 and 6.
On this record, and in consideration of the factors set out in Wis. Admin. Code
§ DWD 80.34 (discussed in the findings above), the commission concludes the applicant sustained a loss of earning capacity at 10 percent, the figure given by Mr. Guckenberg in his first report (and the high end of the range given by
Ms. McCaskey). The commission concludes that Mr. Guckenberg's second report overly focuses on the applicant's current actual wage loss, rather than his loss of earning capacity over his remaining vocational life.
The commission appreciates that the applicant is having difficulty finding full-time paralegal work under the current economic conditions. However, those conditions are general and affect many, if not all, workers and their future earning capacity. Current economic conditions may be reasonably considered with respect to the applicant's efforts to obtain suitable work. However, they do not support more than doubling Mr. Guckenberg's original estimate of loss of earning capacity. In some cases a worker's earning capacity may be particularly or disproportionately affected by economic conditions, good or bad, but the commission cannot conclude this is such a case. Further, as the respondent points out, a loss of earning capacity award is based upon a prediction of impaired earning capacity for the injured employee's working lifetime--or as the supreme court put it, a prediction "made for all time"(1)--not his current wage loss immediately following his work injury.
Consequently, the applicant is entitled to permanent partial disability on a vocational basis at 10 percent, into which his permanent partial disability on a functional basis at 3 percent is merged. He is thus entitled to compensation at 100 weeks at a weekly rate of $242, the statutory maximum for injuries from January 1 through March 31, 2006, totaling $24,200, all of which has accrued. The respondent is entitled to a credit for the permanent partial disability it previously conceded and paid at 3 percent (or $7,260), reducing the award to $16,940.
The applicant agreed to the direct payment of an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order, or $3,388. That amount, plus costs of $1,025, shall be deducted from the applicant's award and paid to his attorney within 30 days. The remainder, $12,527, shall be paid to the applicant within 30 days.
Because of the nature of the applicant's injury, the commission cannot say for certain that he will not sustain additional disability in the future. See Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). Consequently, this order shall be left interlocutory to permit awards for future, additional disability and medical expense.
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Patrick J. Rehlinger, Twelve thousand five hundred twenty-seven dollars and no cents ($12,527.00) in disability compensation.
2. To the applicant's attorney, John Jokela, the sum of Three thousand three hundred eighty-eight dollars and no cents ($3,388.00) in fees and One thousand twenty-five dollars and no cents ($1,025.00) in costs.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
August 31, 2011
rehling.wrr:101:5 ND6 6.22; 6.24; 6.27
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did not confer with the presiding ALJ because its reversal did not involve a difference in opinion concerning the credibility and demeanor of any witness who testified before him. Rather, the commission reversed based on a different impression of the credibility of the reports of the vocational experts, neither of whom testified before the ALJ. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney John Jokela
Attorney Todd J. Koback
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