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

ROGER P AERTS, Applicant

APPLETON PAPERS, Employer

LIBERTY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88-009118

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.

ORDER

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

Dated and mailed: January 30, 1998
aertsro.wsd : 101 : 5 ND § 3.37  § 5.31

David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer and insurer (collectively, the respondent) conceded and paid significant functional permanent disability (32.5 percent compared to disability of the body as a whole) based for a work-related neck injury. A December 3, 1987 date of injury has also been conceded.

The first issue is whether the applicant, who has undergone several surgeries to correct the work-related cervical spine problem, is permanently and totally disabled on a vocational basis. The second issue is whether his award was correctly calculated in light of the prior concession of functional permanent partial disability.

a. Work caused additional disability and increased restrictions.

The ALJ concluded that Dr. Paul's opinion, as to both causation and severity of disability, was more credible than that of the employer's independent medical examiner, Dr. Swanson. The respondent contends the opinion of Dr. Swanson is more credible.

IME Swanson concluded that the applicant's disability to the end of healing from the applicant's October 1993 surgery, including permanent disability, was work-related. In 1994, after the applicant reached a healing plateau from the October 1993 surgery, the applicant could do light work and in fact was working for the employer. Thus, the first point of inquiry is: what caused the deterioration in the summer of 1996 which led both Dr. Paul and IME Swanson to impose additional work restrictions essentially limiting the applicant to sedentary work and causing him to lose his job with the employer?

Dr. Paul opines it was the prior surgical treatment for the work injury coupled with additional work exposure upon returning to work following the third surgery in October 1993. The commission agrees that this is the more credible explanation. The applicant has had three significant neck surgeries, beginning in 1988 when he was in his early forties. The surgeries included two separate discectomy procedures at different levels, two separate fusion procedures at different levels, and a three-level laminectomy. Given the extent of the surgeries, the passage of time, the applicant's return to work after each of the surgeries, and the lack of evidence of degenerative disease anywhere but his neck (as Dr. Gaenslen noted at the time of the first independent medical examination in 1990), the commission concludes that the applicant's increased disability was due to the progression of his condition from the work injury and resulting surgeries as affected by his most recent return to work.

Dr. Swanson relies on two points in his contrary opinion: first, that the applicant was not doing particularly strenuous work in excess of his most recently imposed restrictions when he returned to work after the third surgery in 1994; and second, that there was no "breakage" such as a herniated disc in August 1996. Of course, "breakage" is not required for a compensable work injury, Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). Moreover, given the history of surgical treatment which the employer admits was caused by occupational disease or exposure, the commission cannot conclude that the increase in the applicant's disability is not compensable because he was not exceeding work restrictions. Further, treating doctors Paul and Haight opine, belatedly, that the 1994 restrictions were not stringent enough. In any event, even though the applicant was doing relatively lighter work in August 1996, the commission does not credit the opinion that the natural progression of an underlying condition accounts for the applicant's increased disability, rather the residual effects of his extensive surgical treatment for an admitted work injury.

In sum, the commission credits the expert medical opinion of Dr. Paul regarding causation. The applicant's work exposure or work injury caused his current restrictions to sedentary work, against extension or flexion of the neck (or repetitive extremes of neck movement), and against more than occasional reaching.

b. Applicant permanently and totally disability under "odd- lot" doctrine given increased restrictions.

Given these restrictions, the applicant is permanently and totally disabled on an odd-lot basis. (1) The commission, like the ALJ, concludes that the opinion of the applicant's vocational expert, Joseph Thompson, is more credible than that of the respondent's vocational expert. The commission finds reasonable Mr. Thompson's conclusion that sedentary work is likely to be unavailable for someone who is supposed to avoid more than occasional reaching or extremes in neck movement, restrictions set by Dr. Swanson as well as Dr. Paul.

Moreover, the commission cannot credit the assertion of respondent's expert Seeman that work is actually available to the applicant at the establishments she listed at pages 9 to 11 of her report at Exhibit 6. Mr. Thompson contacted the same employers. He reported that the applicant's employment with those employers was not a realistic possibility. Exhibit N. The difference between the reports of Mr. Thompson and Ms. Seeman, the commission concludes, must be due to the form of the questions asked. Finally, Ms. Seeman does not counter Mr. Thompson's report. The commission must conclude that the respondent has not rebutted the applicant's prima facie case of odd-lot disability, and that the ALJ correctly concluded the applicant is permanently and totally disabled.

The commission also concludes that the employer is not entitled to credit for the previously paid and conceded functional permanent partial disability. The commission's policy is to give a credit only for weeks of conceded and paid permanent partial disability which had not yet accrued at the point an applicant became permanently and totally disabled. Michael Molitor v. Pepsi Cola Co., WC case nos. 91072459 and 93021071 (LIRC, August 28, 1997).

To give no credit for unaccrued weeks would allow an applicant to collect more than the permanent total disability rate for the unaccrued weeks (in which he would receive both the PPD and PTD rates). On the other hand, to give a credit for weeks of permanent partial disability that had already accrued before the applicant became permanently and totally disabled would give him no compensation at all for the residuals of his work injury which effected his functional and wage-earning ability before the date of permanent total disability. (2)

cc:
ATTORNEY ANTHONY J UTSCHIG
BOLLENBECK ROWLAND UTSCHIG & FYFE SC

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

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Footnotes:

(1)( Back ) Permanent total disability on a vocational basis focuses on whether, given an injured worker's functional restrictions from the work injury, as well as her age, training, education, efforts to find work and various other factors set out in sec. DWD 80.34 (1), Wis. Adm. Code., the worker has suffered a permanent and total impairment of earning capacity. This issue turns on the applicability of the "odd-lot rule," an evidentiary rule discussed by the supreme court at length in Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977). The court of appeals summarized the Balczewski decision as stating that: "once the claimant prima facie proves 100 percent disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate `that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity. . . . If evidence of the degree of physical disability coupled with other factors `such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available." Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989). The court of appeals has recently reiterated the holding in Balczewski that simply listing possible job classifications generally does not rebut a prima facie case of permanent and total disability on an odd-lot basis, absent a showing that "in fact employable and that jobs do exist for the injured claimant" on a regular and continuous basis. Balczewski, at 76 Wis. 2d 495; Cabral v. LIRC, Court of Appeals case no. 94-3309-FT, Dstrict I unpublished decision at page 11 (December 12, 1995); Morey v. LIRC, Court of Appeals case no. 95-0673-FT, District III unpublished decision (March 21, 1996).

(2)( Back ) Between December 3, 1987 (the date of injury) and September 11, 1996 (the date the ALJ found the applicant permanently totally disabled), 457 weeks and 6 days passed. The employer paid temporary disability for 95 of those weeks, so 362 weeks and 6 days remain for the accrual of the 325 weeks of functional PPD concede by the respondent. Thus, the conceded PPD would have all accrued before the date the applicant became totally and permanently disabled. Because all the conceded PPD has accrued, the respondent may not offset it against the permanent total disability award. The respondent is not being required to pay twice for the same injury. Had the applicant been found permanently and totally disabled in 1994, or 1990, the employer's overall liability would have been higher than it is under this order. Indeed, it would under-compensate the applicant to subtract from the PTD first accruing in 1996 PPD paid for weeks of permanent disability accruing years earlier.