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




Claim No. 92077121

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: February 27, 1998
talboel.wsd : 101 : 5 ND 5.26

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


a. Background.

The applicant worked as an operating room nurse until she developed symptoms she alleges are due to occupational-induced latex allergy. Her treating doctor opined her condition was indeed work-related and assessed functional permanent disability at 20 percent compared to disability to the body as a whole. The employer's independent medical examiner (IME) disagreed, opining the applicant's problems were due to other types of allergen exposure and anxiety. However, the ALJ agreed with the treating doctor, and adopted that doctor's conclusion as to causation.

The ALJ next considered the issue of permanent disability based on loss of earning capacity (LOEC). The applicant's vocational expert rated LOEC at 25 to 35 percent, based in part on an estimate of post-injury earnings of $30,000 to 32,000 per year. Exhibit I, report of Johnson, page 5. Assuming the applicant indeed had employment-induced latex allergy, the employer's expert rated LOEC at 10 to 20 percent. He thought she could find work paying as much, or more, than a nurse, but also cited lost access to the job market, initial setback in wages, and difficulty in transferability. Transcript, June 1996 transcript, page 96-97; exhibit 8, report of Modder, page 6. The ALJ awarded permanent disability for loss of earning capacity at 25 percent.

The employer appeals. It argues that, based on newly- discovered evidence relating to the applicant's efforts to find employment, the commission should either reverse the LOEC award or set it aside for redetermination.

b. Post-injury employment history.

Due to her condition, the applicant had to discontinue her job as an OR nurse in March 1993. The employer provided work in a non-clinical environment, (1) and the applicant continued there until the birth of her child. When her maternity leave ended in June 1995, the applicant was not permitted to return to the job in the non- clinical environment. In January 1996, the employer, or a related corporation, provided part-time work as a computer operator. She was working in that job as of the date of the first hearing in this case in March 1996.

In April 1996, before the second hearing on June 19, 1996, the applicant was laid off from the part-time computer job. She had been working with a vocational expert hired by the employer, Donald Modder, and testified at the hearing about her substantial efforts to find work. (2) At one point in this testimony, she mentioned that she was interviewed for a position with the employer as a Quality Assurance Specialist (QA Specialist). The employer posted the QA Specialist position as two part-time twenty hour per week jobs. The applicant testified she would take the QA Specialist job if offered. (3) She also mentioned many other job interviews and employment contacts.

According to an affidavit file by the employer's attorney with its petition, the employer offered the applicant the job of QA Specialist on June 28, 1996 (nine days after the final hearing but before the ALJ issued his decision). A couple of days later, however, the applicant refused the job because she had accepted a position with an insurance company, First Health. (4) According to the parties' briefs, she started work at First Health on August 1, 1996. The employer's attorney asserts that the employer's vocational expert re-estimated her loss of earning capacity to be not more than 9 percent based on this information.

The employer initially asked the ALJ to reopen the record to consider this "newly-discovered evidence." The ALJ refused, telling the employer to raise the issue with this commission on appeal. Accordingly, the employer now argues that the applicant's hearing testimony, before she got the job with First Health, indicates that her employment outlook was bleaker than it turned out to be.

c. Discussion.

The employer does not allege that the applicant was aware of the First Health job offer, but kept that information from the ALJ or the vocational experts. Nor does it make any arguments on appeal to the commission regarding the issue of whether employment exposure actually caused the latex allergy. Rather, the employer argues that because this worker, who was actively looking for work at the time of the hearing, has found a job her loss of earning capacity award must be modified.

The commission cannot accept the employer's argument. A loss of earning capacity award is not based simply on actual wage loss, but depends on many other factors including lost access to work, age, education, training, and efforts to find work. See Wis. Admin. Code DWD 80.34. In addition, the courts have pointed out that an award for impairment of earning capacity is "for all time." (5) Thus, it follows that a person's actual wage at any given point in time is not the deciding factor. Indeed, to hold otherwise would require reopening an LOEC award every time an applicant obtained or lost a job. (6)

Perhaps the strongest reason for not reassessing the LOEC award here is the report of the employer's own expert. In the report stating his expert vocational opinion, Mr. Modder opines that the applicant could obtain various positions the applicant could do outside of direct care or a clinical setting. He also observed that the pay for such positions "is generally equivalent to, or in some cases, even exceeds pay levels enjoyed by operation room and direct care nurses." (7) Nonetheless, Mr. Modder went on to estimate a 10 to 20 percent LOEC, based on loss of access and loss of transferability. However, after the applicant has obtained employment which evidently pays less than an OR nurse (8), Mr. Modder evidently has retracted his opinion to rate LOEC at not more than 9 percent.

In sum, the commission sees no basis for setting aside the ALJ's LOEC award on theory that the testimony at the hearing made the applicant's employment situation seem bleaker than it turned out to be. She testified she was looking for a job; the fact she eventually found one is not a reason to modify or set aside the ALJ's decision. If anything, the employer, by eliciting testimony from Mr. Modder to suggest that the applicant was too choosy in her employment efforts, made the outlook seem overly bleak.



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(1)( Back ) March 1996 transcript, page 127.

(2)( Back ) June 1996 transcript, pages 11 to 20

(3)( Back ) June 1996 transcript at page 14.

(4)( Back ) The respondent states in its brief that when the applicant refused the QA Specialist job it offered after the hearing, this was "contrary to sworn testimony before the Administrative Law Judge." But of course, the applicant's hypothetical testimony that she would take on of the half-time QA Specialist jobs if offered must assume she had no other full-time offers.

(5)( Back ) Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947).

(6)( Back ) An obviously different situation is raised when the time-of-injury employer continues to employ the injured worker at least 85 percent of his or her pre-injury wage. In those cases, there is no LOEC award. Wis. Stat. 102.44 (6)(a). However, LIRC or DWD may reopen a case to award LOEC if the time-of-injury employer subsequently terminates the worker, or he becomes unable to continue. Wis. Stat. 102.44 (6)(b). The commission emphasizes, though, that Wis. Stat. 102.44 (6) is limited to situations where a time-of-injury employer continues to employ a worker at 85 percent of his wage. In the present case, the employer discharged the applicant well before the hearing, and even the re-employment from January to April 1996 was at half time. Her new job, and the one the employer contends should result in a lower LOEC, is with another employer, First Health.

(7)( Back ) Exhibit 8, Modder report, page 6.

(8)( Back ) Indeed, the First Health the applicant's wages at First Health are lower even when compared to what the applicant earned as an OR nurse in 1993. While the employer disputes the form in which the applicant presented wage figures with First Health on appeal, it does not directly contradict her figures. This is significant because Mr. Modder presumably had some idea of what the applicant earned at First Health when he revised his estimate of lost earning capacity.