P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 94057823

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.


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

Dated and mailed: November 28, 1997
willgen.wsd : 101 : 5 ND 5.40 5.49

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner


On appeal to the commission, the employer and insurer (collectively, the respondent) concede causation and the extent of functional disability. Indeed, the respondent even acknowledges that, but for the vocational rehabilitation issue it raises on appeal, its expert would set loss of earning capacity at the 40 percent awarded by the ALJ. Thus, this case presents a narrow issue for commission review: the effect of the applicant's failure to pursue vocational rehabilitation on her loss of earning capacity benefits.

In its petition for review, the respondent requests that the commission set aside the ALJ's decision and require the applicant to seek vocational rehabilitation from the DVR. (1)   Alternatively, the respondent argues that if loss of earning capacity must be awarded, it should be reduced based on the expected results of vocational rehabilitation services. Citing the opinion of its vocational expert, the respondent contends that, with retraining, the applicant's loss of earning capacity would initially be between 7 and 41 percent as a new graduate, and eventually 0 to 20 percent with experience. Thus, the respondent asks the commission to reduce the loss of earning capacity award to 20 percent if the commission chooses not to remand.

The applicant points out that the respondent has not agreed to pay DVR retraining benefits under Wis. Stat. 102.43 (5) and 102.61. She suggests that, absent such an agreement, the commission should neither reduce loss of earning capacity nor remand to require the applicant to undergo vocational rehabilitation.

The respondent cites Wis. Stat. 102.42 (2) which provides that benefits may be reduced for a failure to undergo reasonable medical treatment. It also cites Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 279-80 (1972) for the proposition that this concept has been expanded to encompass the remedial effects of vocational rehabilitation. The respondent acknowledges its position is weakened by its failure to agree to pay for the rehabilitative efforts (Reply brief at pages 1 and 2). Yet it contends that agreeing to pay in advance would be agreeing to buy "a pig in a poke."

a. Remand to pursue DVR services?

The first question is whether the commission should require the applicant to seek services from the DVR prior to awarding loss of earning capacity. The commission reads Transamerica to give it some discretion in deciding that issue. (2)

The applicant, according to the respondent's vocational expert, reads at an eighth grade level, and her mathematics skills are at a sixth grade level. Her spelling ability, though better, is still not the level expected of a high school graduate. Exhibit 3, page 7. Nonetheless, the employer's vocational expert suggests that the applicant is a good candidate for retraining in a one-year diploma program in the areas of a dental assistant, medical assistant, medical office specialist, or health unit coordinator. He contends her test scores belie her abilities and that many of her wrong answers were "near misses."

While the applicant graduated from high school and cosmetology school, the applicant dropped out of her other post high school retraining efforts. She testified this was due in part to the fact that she did not do well. Added to this is the fact that the applicant really is not interested in being retrained. Given the applicant's academic accomplishments, her test scores, and her lack of enthusiasm, the commission agrees with the ALJ that requiring DVR retraining prior to awarding loss of earning capacity is not reasonable or practical. This conclusion is borne out by the fact that the respondent itself views the possible benefits of vocational rehabilitation as uncertain. See respondent's October 2, 1997 reply brief, page 2.

b. Reduce LOEC based on failure to pursue DVR services.

The next question is the effect, if any, that the applicant's reluctance to pursue retraining on her award for loss of earning capacity. The respondent asks the commission to just reduce the award to 20 percent, which is the loss projected by the employer if she underwent the retraining. The commission must decline.

First, as the applicant argues and the employer seems to accept, reducing loss of earning capacity on a failure to mitigate by obtaining vocational rehabilitation relies heavily on the analogy to refusals to undergo treatment. Yet, the court has held that compensation may be reduced for refusing medical treatment only when the employer agrees to pay for the treatment. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457, 461-62 (1977). In this case, the respondent has not agreed to pay for retraining.

Second, any reduction, particularly a reduction by 50 percent, is speculative. (3) The commission does not know what the results of the vocational rehabilitation would be. Of course, the same is true of medical treatment, but the financial risk that treatment or rehabilitative efforts come to no avail is lessened when the employer agrees to pay. And of course, the law recognizes some limits on the duty to mitigate in cases of medical treatment. In short, the commission declines to assume that the outlined vocational rehabilitative effort would have been successful, and just reduce loss of earning capacity accordingly. Indeed, it is precisely because the outcome of retraining is speculative that the employer refuses to pay for it.

Of course, the administrative code specifically refers to an injured worker's willingness to participate in a reasonable program of vocational rehabilitation, and the success of such a program, as factors in determining loss of earning capacity. Wis. Admin. Code, DWD 80.36 (1)(j). However, this assumes that the program is reasonable. Under the circumstances of this case, the commission declines to reduce the award for loss of earning capacity.



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(1)( Back ) The division of vocational rehabilitation, since July 1, 1996, a subunit of the department of workforce development.

(2)( Back ) Transamerica, at 54 Wis. 2d 278-80. See, for example, Luthra Cole v. Modern Products Inc., WC claim no. 91024321 (August 31, 1994).

(3)( Back ) The commission has previously declined to speculate about the effects ongoing retraining efforts might have on LOEC. Thomas Huitfeldt v. James Cape & Sons, WC Claim no. 94066876 (LIRC, June 6, 1996); Christine Fischer v. Herrschners Inc., WC Claim no. 93013588 (LIRC, June 5, 1996).