STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LUIS E NIEVES, Applicant

MONTEREY MILLS INC, Employer

EMPLOYERS ASSURANCE CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-014404


The applicant filed a hearing application seeking compensation for a back injury caused by repetitive activities at work. Following a hearing on March 24, 2008, administrative law judge (ALJ) Cathy A. Lake for the Worker's Compensation Division of the Department of Workforce Development (department) issued a decision on May 9, 2008, which found that the applicant sustained a compensable low back injury on January 17, 2007, though he continued to work until April 2007. ALJ Lake awarded temporary total disability benefits from April 23 to 27, 2007, and again from July 10, 2007 to the date of the March 2008 hearing. Her interlocutory order also awarded certain medical expenses, including a prospective award of expenses to be incurred with respect to a proposed lumbar fusion surgery. No appeal was taken from ALJ Lake's May 9, 2008 order.

In June 2010, the applicant refiled his hearing application, seeking compensation for impairment of earning capacity. ALJ Nia Enemuoh-Trammel heard the matter on November 2, 2010, holding the record open until March 31, 2011. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $438.08, and that the applicant has sustained permanent partial disability at 10 percent compared to disability to the body as a whole. The applicant claimed compensation for permanent total disability.

On April 25, 2011, ALJ Enemuoh-Trammel issued her decision finding the applicant sustained a loss of earning capacity at 35 percent. The applicant filed a timely appeal of the ALJ's April 25, 2011 order, continuing to claim permanent total disability. At issue now before the commission, then, is the extent of permanent disability.

The commission has considered the petition and the positions of the parties, has reviewed the evidence submitted to ALJ Enemuoh-Trammel, and consulted with her concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born on August 4, 1970, in Mexico. He completed the 5th grade in Mexico, then moved to the United States with his family at age 14. He attended high school in South Beloit through 11th grade. He has never tried to obtain a high school graduate equivalency degree (GED).

As set out above, the applicant suffered a compensable back injury while working for the employer on January 17, 2007. After the injury, the applicant had low back and right leg radicular pain. He underwent diagnostic testing, physical therapy, injections, and, ultimately, an L5-S1 fusion.

After reaching an end of healing from his fusion surgery, the applicant continued to experience back pain. He underwent a functional capacity evaluation in
July 2009. According to the occupational therapist who performed the test, the applicant gave a consistent effort, meaning that the therapist regarded the evaluation as valid and reliable.

Based on the functional capacity evaluation, the occupational therapist set work restrictions outlined in Exhibit C. Specifically, the therapist opined that the applicant could:

The functional capacity evaluation also states that the pace of the applicant's activities was generally below that of competitive standards.

The applicant's treating doctor, Christopher Sturm, M.D., prepared a practitioner's report dated September 24, 2009 (Exhibit C), in which he opined that the applicant reached an end of healing as of August 18, 2009, with permanent partial disability at 10 percent to the body as whole. Dr. Sturm also adopted the restrictions as stated in the functional capacity evaluation set out above. In so doing he stated:

The functional capacity examination was reviewed with the patient. It has listed him as sedentary to light work level ability. On testing, the patient reportedly is unable to sustain any positions of standing, kneeling, reaching, and forward bending. It is reported that he is unable to crouch and fully squat to the floor without losing his balance. He has poor balance....

The respondent's expert medical opinion comes from Marc Soriano, M.D. In his initial report written on October 30, 2007, before the applicant's surgery,
Dr. Soriano opined the applicant was malingering and that the surgery was not only unreasonable but unnecessary. He reported the applicant exhibited Waddell's signs and stated that the need for the fusion surgery would under no circumstances be the result of the work injury. He thought that the applicant's back problems were simple degenerative changes consistent with the applicant's age (the applicant was 37 at the time), that he could return to work without restriction, and that he sustained no permanent partial disability as a result of the work injury.

The applicant, of course, did undergo the fusion surgery following ALJ Lake's May 2008 order. Post surgery, Dr. Soriano continued to diagnose "non organic clearly exaggerated subjective complaints of pain which have no relationship to any organic illness or medical based evidence." He noted that because the applicant underwent the fusion, a rating of permanent partial disability at 10 percent was warranted. However, Dr. Soriano stated that the surgery in and of itself was not an indication that restrictions should be set. In a final report dated September 24, 2010, Dr. Soriano said the applicant required only a 60-pound lifting restriction.

The parties also submit expert vocational opinions on the issue of the applicant's vocational loss--or loss of earning capacity--based on his medical restrictions. The applicant's vocational expert is Michele J. Albers. In her report dated June 24, 2010 (Exhibit B), she noted that the applicant had attended school in Mexico through the 5th grade, then moved to the United States when he was 14, then attended high school in South Beloit through the 11th grade. He never obtained a GED, and she reports:

Mr. Nieves noted he can read 'a little bit' in English and a 'little bit' in Spanish. He tries to read the newspaper but finds it difficult to understand what he is reading. If he receives letters in the mail, his brother reads them for him.

Mr. Nieves noted he is 'not able' to do simple math. He believes he can handle money and make change. He does not use a computer and has no typing skills.

Ms. Albers went on to report that after leaving high school, the applicant worked in jobs "here and there" but quit many of them because of issues related to alcohol. She did note he worked for a cookie factory for about a year as a machine operator, though this was not full-time employment. More recently, the applicant began working for the employer as a temporary worker in March 2006, and became full-time permanent in June 2006. Thus, he was working full-time (and occasionally over-time) for a year prior to his injury.

Ms. Albers noted that the applicant had not registered with job service because he believed he was totally disabled and had not applied at DVR. She concluded he lacked transferrable skills and that the restrictions set by Dr. Sturm placed him in the sedentary to light capacity. She described his age (then 39) as a positive vocational factor, but that negative factors included his minimal ability to read in either English or Spanish and his lack of significant mathematical abilities or computer skills. She noted, too, that at the time of his injury, his work required heavy exertion which he can no longer do. Given the applicant's lack of formal education, his difficulty in writing and reading English, his lack of transferrable skills, and the limitations set forth on the functional capacity evaluation,
Ms. Albers opined the applicant was permanently totally disabled on an odd lot basis.

The respondent's expert, Barbara Lemke, reached a different conclusion. She reported that since he became "dry" after completing an alcohol treatment program in 2003, the applicant did general factory work for companies such as
Seneca Foods, Hormel, and Roadmaster. She noted his year of employment with the employer during the course of which he suffered the January 17, 2007 injury now at issue. She opined that under Dr. Soriano's restrictions, the applicant would have less than a 5 percent loss of earning capacity.

However, under the restrictions set by Dr. Sturm, Ms. Lemke noted the applicant would have to focus on unskilled labor in jobs that would allow him to alternate between sitting, standing and not require much lifting. She identified jobs in that capacity as being: cleaners, laundry and dry cleaning worker, stock clerk, hand packager, production worker, food preparation worker, and dishwasher. She opined that based on employment in those jobs, he would have a 30 to 35 percent loss of earning capacity.

In a supplemental report at exhibit B, Ms. Albers suggests the applicant cannot really do most of the jobs identified by Ms. Lemke, or can do them on only a very select basis. In a supplemental report at Exhibit 6, Ms. Lemke offered a labor market survey identifying several jobs offered through employment agencies.

2. Discussion.

Between the competing medical opinions, the commission, like the ALJ, credits treating doctor Sturm's restrictions. These are based on the functional capacity evaluation during which the applicant gave a full effort. The commission conferred with the presiding ALJ concerning the applicant's hearing demeanor. ALJ Enemuoh-Trammel stated the applicant occasionally stood and stretched during the hearing, shifted in his chair, and grimaced and grunted with positional changes. She added that his behavior did not seem overly exaggerated, but was consistent with the restrictions set out in the functional capacity evaluation.

In cases where a worker claims permanent total disability on an odd-lot basis, a prima facie case analysis established by the court in Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977) applies. Under the odd-lot doctrine, when a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment--in other words, when the worker shows that he or she is an "odd lot" worker--the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer.

In Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, the court analogized the odd-lot rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption that the worker is permanently totally disabled arises. Id., 273 Wis. 2d 136, 53, 54. The court explained:

Balczewski holds that certain basic facts---the claimant's injury, age, education, capacity, and training---may in combination demonstrate an inability to secure continuing, gainful employment such that these basic facts constitute prima facie evidence of another (presumed) fact, namely that the claimant is permanently and totally incapable of earning a living. Ordinarily this is accomplished through expert testimony. The employer may introduce expert evidence in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising.

Id., 273 Wis. 2d 136, 54.

After considering the evidence here, the commission concludes the applicant made his prima facie case. His expert, Ms. Albers credibly opined that based on the applicant's education, his limited ability to read and write English, his work history in heavy jobs, and his lack of transferrable skills, he has proven that a stable market with sufficient jobs does not exist for him. In her initial report, Ms. Lemke did opine that the applicant could work in various jobs, including cleaning, laundry working, stock clerk, production work, food preparation work, and dishwashing. However, in her hearing testimony, Ms. Lemke admitted the applicant probably could not actually find jobs in several of those occupations. (Transcript, pages 56-60.) See also supplemental report of Albers, exhibit A. In sum, the applicant has demonstrated "an inability to secure continuing, gainful employment."

Accordingly, the burden shifts to the employer to show that the applicant is in fact employable and a job exists for him. On this point, the commission carefully considered Ms. Lemke's labor market survey at Exhibit 6 and her hearing testimony. With respect to several jobs, the report states only that very light lifting is required. However, a lifting restriction reflects only part of his work restrictions. He has numerous positional restrictions as well. As the applicant's attorney brought out on cross-examination, Ms. Lemke's labor market survey does not indicate whether the jobs she identified would be able to accommodate his restriction of no waist-to-floor lifting. Nor does her survey adequately address the comment from the functional capacity evaluation that the pace of the applicant's work activities was generally below that of competitive work standards. See transcript, page 79 et seq.

Even regarding a job that Ms. Lemke insisted the applicant could do, final inspection work, she acknowledged it met only some aspects of the applicant's lifting restrictions, and did not take into account his positional restrictions. Transcript, pages 62 et seq. Indeed, asked about this, Ms. Lemke admitted she did not know whether the jobs in her survey required someone to do waist-to-floor lifting that the applicant is prohibited from doing under his work restrictions. She stated: "If I had to go through each of these and contact the employers and go through the functional capacity evaluation step by step, it would really be an impossible feat." (Transcript, page 64).

However, the court of appeals has held:

To determine the availability of suitable work, the employer must inquire of prospective employers the physical requirements of the job. The employer's duty in ascertaining whether an actual job exists is thus to obtain information from the prospective employer about the job requirements...

Cargill Feed Division v. LIRC & Renz, 329 Wis. 2d 206, 30. The court went on to indicate a failure in rebuttal evidence could be supported by "a finding that [the employer's vocational expert's] job listings lacked either full descriptions or ... any description, of the specific physical requirements for each job listed in the survey." Id., 33.

The commission acknowledges that the court in Cargill Feed did say that neither an employer's failure to actually refer an injured worker to a specific employer, nor a failure to disclose the worker's age and disability to prospective employers, permits the commission to conclude the employer failed in its burden to rebut a prima facie case. Still, the commission concludes that the burden the employer does have, obtaining sufficient information from prospective employers about the jobs that the respondent claims are actually available to the applicant, was not met in this case.

What Ms. Lemke and the respondent have done is proven that there are some light jobs that the applicant may be able to do if he is accommodated. She admitted it could be "challenging" to find a job that would fit all of his restrictions (transcript, page 83) and it would take a special set of circumstances to find a job that would accommodate his needs (transcript, page 84-85). This is different than showing that an actual job within his restrictions--a job that he can do--exists. It may be that, given this particular applicant's significant and numerous restrictions, proving this is a difficult task, and the commission realizes that Ms. Lemke testified that in her expert opinion such jobs do exist. However, the burden of persuasion at this stage is on the employer to prove that an actual job exists that the applicant can do, Beecher, 273 Wis. 2d 136 171, and the commission concludes the employer has not offered credible evidence sufficient to satisfy that burden.

The respondent also suggests that vocational retraining--or at least a direct placement effort--should be undertaken here before the applicant is determined to be permanent totally disabled. The commission has the authority to order a worker to undergo vocational rehabilitation before awarding permanent disability. The supreme court has held that:

The ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages.

Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278 (1972). In prior cases, the commission has required retraining before reaching the issue of loss of earning capacity. See for example Luthra Cole v. Modern Products Inc., WC claim no. 91024321 (LIRC Aug. 31, 1994); David Vallier v. Best Fireplace Co., Inc., WC claim no. 2004-006710 (LIRC April 29, 2009). In this case, the commission declines to order the applicant to undergo formal vocational retraining because the hearing record does not suggest it would be successful in increasing the applicant's employability and because neither vocational expert recommends it.

The commission also carefully considered the applicant's direct placement efforts short of vocational retraining. In Cargill Feed Division, the court of appeals did say an employer could try direct placement to rebut the prima facie case if it wished, but the commission could not require it to do so.(1) Here, the employer chose not to take the direct placement route in rebutting the prima facie case.

Nor may the commission consider the applicant's overall efforts to find work, or require evidence of a post-injury job search, in determining whether he made his prima facie case. Beecher v. LIRC, 273 Wis. 2d 136, 47, 57-58. A worker's futile efforts to find work may be considered as part of the worker's effort to defeat an employer's attempt to rebut the prima facie case, id., 273 Wis. 2d 136, 55. Here, however, the employer's effort to rebut the prima facie case fails without such a showing by the applicant. The commission does not read Beecher to mandate efforts to find work, much less mandate a commission order requiring direct placement efforts, at the rebuttal stage. In any event, given the applicant's significant restrictions and Ms. Lemke's failure to identify jobs within his restrictions, the facts do not warrant direct placement efforts as a prelude to an award in this case.

3. Award.

The commission therefore concludes that the applicant has been permanently and totally disabled as of August 18, 2009, the end of healing date given by Dr. Sturm in his practitioner's report dated September 24, 2009 (Exhibit C). He is therefore entitled to compensation for permanent total disability at the weekly rate of $292.05 (two-thirds of the applicant's average weekly wage of $438.08) from that date for life. As of May 20, 2012, 143 weeks and four days totaling $41,958.33 have accrued.

Information received from the respondent indicates it paid temporary total disability from April 24 through 27, 2007, and then continuously from July 10, 2007 through August 29, 2009. Information from the respondent also indicates it paid $22,446.93 in permanent partial disability and fees thereon as of the date of the hearing. See attachments to respondent's brief dated September 6, 2011. It does not appear these payments are challenged by the applicant.

Based on its information, the respondent paid one week and five days of temporary total disability in late August 2009 after the applicant became permanently totally disabled. For this payment, the respondent is entitled to a credit of $535.42 ($292.05 per week for 1.8333 weeks) to prevent duplicative payments.

The respondent is also entitled to a credit for the portion of permanent partial disability that is attributable to weeks after the end of healing. Consistent with the department's practice, the accrued permanent disability in this case includes payments for "gap weeks" between the date of injury and the healing plateau date when no temporary disability was paid. See Wis. Stat. § 102.32(6)(e). In this case, that includes the 13.667-week period from January 17 through April 23, 2007 in which $3,580.67 in permanent partial disability accrued (at the statutory maximum rate of $262 for injuries in 2007), and the 10.3333-week period from April 28 through July 10, 2007 in which $2,707.33 in permanent partial disability accrued. The total accrual of permanent partial disability during the "gap weeks" prior to the end of healing is $6,288; the applicant is permitted to retain this amount of the previously-paid permanent partial disability. The respondent is entitled to a credit for the remainder of the previously-paid permanent partial disability compensation ($16,158.93), so that the applicant does not receive more than the compensation rate for total disability in any week.

In sum, then, the respondent is entitled to a credit of $16,694.35 ($535.42 plus $16,158.93) against the accrued permanent total disability.2(2) The total amount currently due in permanent total disability, then, is $25,263.98 ($41,958.33 minus $16,694.35).

The applicant agreed to the direct payment of an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded under this order. As of May 19, 2012, the amount due in fee is $5,052.80 (0.20 times $25,263.98). That amount, plus costs of $961.80 shall be deducted from the total amount currently due in permanent disability compensation, and paid to the applicant's attorney within 30 days. The remainder, $19,249.38, shall be paid to the applicant within 30 days.

The attorney fee is limited to the first 500 weeks of permanent total disability compensation,(3) which ends on March 19, 2019. Accordingly, beginning on
June 19, 2012, and ending with the payment on March 19, 2019, the respondent shall make monthly payments of $1,012.44 to the applicant and $253.11 to his attorney during the applicant's lifetime. Beginning on April 19, 2019, the respondent shall pay the applicant $1,265.55 per month for life.

This order shall be left interlocutory to permit additional findings, orders and awards as may be appropriate.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed.

Within 30 days, the employer and its insurer shall pay all of the following

1. To the applicant, Luis E. Nieves, Nineteen thousand two hundred
2. forty-nine dollars and thirty-eight cents ($19,249.38) in disability compensation.
3. To the applicant's attorney, James A. Meier, the sum of Five thousand
4. fifty-two dollars and eighty cents ($5,052.80) in attorney fees and
5. Nine hundred sixty-one dollars and eighty cents ($961.80) in costs.

Beginning on June 19, 2012, and continuing on the 19th day of each month through the payment made on March 19, 2019, the employer and its insurer shall monthly pay the applicant One thousand twelve dollars and forty-four cents ($1,012.44) and his attorney Two hundred fifty-three dollars and eleven cents ($253.11), during the applicant's lifetime.

Beginning on April 19, 2019, and continuing on the 19th day of each month thereafter, the employer and its insurer shall pay the applicant One thousand
two hundred sixty-five dollars and fifty-five cents ($1,265.55) per month for life.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed
May 24, 2012
nievesl . wrr : 101 : 5 ND6 6.32, 6.41

 

BY THE COMMISSION:

Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. As noted above, the ALJ stated that the applicant changed positions several times during the hearing, alternating between sitting and standing, and stretching. She noted he grimaced and made noises with position changes, but did not think he overly exaggerated his symptoms. She believed his presentation was consistent with the restrictions set in the functional capacity evaluation.

The ALJ reiterated during the conference her belief that the applicant exaggerated his inability to understand English. She stated that she believed he could converse easily in English. Regarding his ability to read English, she noted testimony suggesting that he read newspapers daily. See transcript, page 37-38.

The testimony on this point is transcribed as follows:

Q. Do you read at all during the day?
A. Sometimes.
Q. Okay. What do you read? Books? Magazines?
A. Newspaper.
Q. Newspaper?
A. Yeah.

The commission believes this testimony is consistent with the observation of the applicant's vocational expert, Ms. Albers, that the applicant can read a little bit in English, and a little bit in Spanish, that he tries to read the newspaper but finds it difficult to understand, and that if he receives letters in the mail, his brother reads them. Exhibit B, page 6. Ms. Albers' vocational opinion is based on the applicant's limited ability to read English. Given that the applicant had only attended school through fifth grade when he moved to the United States at age 14, that he did not graduate from high school upon moving to the United States, and that he has never tried to obtain a GED, the commission believes that Ms. Albers' observations about the applicant's limited ability to read English are credible.

Ms. Lemke also testified at the hearing. The ALJ stated she had no significant problem with Ms. Lemke's credibility. The commission acknowledges that
Ms. Lemke did acknowledge some of the weaknesses in her reports forthrightly on cross-examination. However, for the reasons stated above, it concluded that the evidence offered by Ms. Lemke is insufficient to rebut the applicant's prima facie case.


cc: Attorney James Meier
Attorney Linda Kiemele


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Footnotes:

(1)( Back ) The court stated We do not mean to suggest that an employer cannot rely on evidence that it actually referred a claimant to a prospective employer to support its rebuttal case. Such evidence may be of great value to the employer in demonstrating that suitable work exists in the labor market for the claimant. Cargill Feed Division v. LIRC & Renz, 329 Wis. 2d 206, 32

(2)( Back ) The commission appreciates that the respondent may have made additional payments in disability compensation since the hearing, for which additional credit may be due. However, its general policy in calculating awards is to account for amounts paid as of the date of hearing.

(3)( Back ) Wis. Admin. Code DWD 80.43(3).

 


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