LORENZO ARREOLA, Applicant

PROTECT ALL MFG & CONVERTING INC, Employer

ACUITY INSURANCE 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 on page 5 of the ALJ's decision and substitute:

"In his treatment note dated November 18, 2009 (exhibit B), Dr. Frank noted that while he told the applicant he did 'not think that his symptoms of residual axial back pain warrant surgical treatment presently. ... [he] does have residual back pain ... [and] did sustain a structural injury to his back.' In his Medical Report on form WKC-16 note of the same day (exhibit B), Dr. Frank responds to the question 'What further treatment should be given?' as follows:

'None - Possible surgery in futur [sic]'

Dr. Frank thus opines that while he does not contemplate surgery presently, surgery may be required in the future to address the structural injury to the applicant's back caused by the work injury. This order shall therefore be left interlocutory to permit further orders regarding claims for additional disability and medical treatment compensation as may arise in the future."

2. Delete the ALJ's order, and substitute the second and third paragraphs of the commission's Interlocutory Order below.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

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

Within 30 days from the date of this decision, the employer and its insurer shall pay all of the following:

1. to the Spine and Joint Institute of Racine, Ten thousand six hundred fifty-six dollars and twenty-three cents ($10,656.23).
2. to Diversey Medical Center, Two hundred seventy-five dollars and no cents ($275.00).
3. to EQMD, Inc., Two thousand three hundred forty-four dollars and no cents ($2,344.00).
4. to Michel Malek, M.D., Eight hundred fifty dollars and no cents ($850.00).

Jurisdiction is reserved for such further findings, orders and awards as are warranted consistent with this decision. September 28, 2011BY THE COMMISSION:

Dated and mailed
September 28, 2011
arreola.wmd : 101 : 7 ND6  6.22; 9.33

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant sought compensation related to a conceded back injury occurring on Apri1 15, 2009. The ALJ, crediting the medical opinion of a treating doctor, Clay Frank, M.D., concluded that the applicant's work injury resulted in permanent partial disability on a functional basis at two percent compared to disability to the body as a whole, paid some additional medical expenses based on the applicant's complaints of continuing pain, but issued a final order and declined to prospectively order payment of the treatment posted by Dr. Malek.

On appeal to the commission, the applicant only seeks modification of the ALJ's decision to make the order interlocutory to allow him to pursue such claims as may be appropriate in the future, including a claim for loss of earning capacity should the employer not rehire him. The employer and its insurer ask the commission to affirm the ALJ's final order.

In general, an interlocutory--as opposed to final--order is appropriate when it may not definitely be determined that the injured worker will not sustain additional disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956); Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Issuing an interlocutory order is discretionary under Wis. Stat. § 102.18(1)b), "to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate." DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2008, note 106 (WKC-1-P R. 02/2009).

The applicant contends that the ALJ should have reserved jurisdiction for future claims, including a possible loss of earning capacity claim. As explained in the material added to the ALJ's decision above, the commission believes an interlocutory order is appropriate. However, any disability claim brought under the interlocutory order, including a claim for loss of earning capacity, must be based on disability occurring in the future or an additional or advancement of disability beyond that at the time of hearing.

As the commission has stated before, work restrictions are the starting point for a loss of earning capacity claim. Feirtag v. Bell Well Sales Company, WC claim no. 1997-023488 (LIRC March 20, 2001); Cindy M. Nelson v. SPX Corp., WC claim no. 1993-051690 (LIRC February 25, 2009). This is because an award for loss of earning capacity may not be based on "physical or mental suffering that does not interfere with earning capacity." Shymanski v. Industrial Comm., 274 Wis. 307, 314 (1956). See also Balczewski v. Department of Industry, Labor & Human Relations, 76 Wis. 2d 487, 493 (1977).

Based on the record before her, including Dr. Frank's credible opinion, then, the ALJ quite properly concluded there is no current claim for loss of earning capacity because there are no work restrictions, and limited the award to Dr. Frank's functional rating. See Wis. Stat. § 102.44(6)(h). However, the commission declines to rule out claims for additional disability should the applicant's condition due to the work injury change in the future.

Finally, the commission did not confer with the presiding ALJ concerning witness credibility and demeanor. Its modification of her order was based on reaching a different conclusion regarding the discretionary act of reserving jurisdiction based on the opinions of the medical experts, none of whom testified before the ALJ. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).

cc: Attorney Daniel J. Kelley
Attorney Paul Riegel

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