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

IDA ELLIS, Applicant

ASSOCIATED BANK, Employer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95045974

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued on December 18, 1997. The applicant submitted an answer to the petition and both parties submitted briefs. At issue is the applicant's claim for vocational rehabilitation benefits pursuant to Wis. Stat. § § 102.43(5) and 102.61 and amount of wage.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge concerning his assessment of the credibility of witnesses, hereby sets aside the Findings and Interlocutory Order below and substitutes the following therefore:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant suffered a conceded work related bilateral overuse injury to her upper extremities with an injury date of July 10, 1995. The applicant worked for the employer, a bank, on a part time basis beginning in 1994. The applicant testified that she checked the box for part time employment at the time she was hired because that was the only job that was available and if a 40 hour a week job was available she would have taken it. The applicant testified that she did not limit herself to part time work.

Dr. Wright, the applicant's treating physician, noted on November 7, 1995, that the applicant was seven months pregnant and has worked as a keypunch operator for the employer but that she had been off work since July 1995, due to her carpal tunnel syndrome. Dr. Wright indicated that he was reluctant to start the applicant on any medication secondary to her pregnancy and he would like her to try to return to work with a restriction of no lifting greater than ten pounds with the right arm, and that this was set to begin on November 13, 1995.

The applicant was also examined by Dr. Langenkamp on behalf of the employer who prepared a report dated December 11, 1995. Dr. Langenkamp opined that the applicant appeared to have a fairly classic case of multirepetitive minitrauma causing an over use pain syndrome of the upper extremities. Dr. Langenkamp opined that the applicant had reached a healing plateau as of November 30, 1995 with 3 percent permanent partial disability at the shoulder. Dr. Langenkamp indicated that the applicant was going to have to find a different way to make a living and is going to have to follow permanent restrictions. Dr. Langenkamp restricted the applicant from doing repetitive reaching, pulling or grasping above shoulder level, and in addition she would be specifically restricted from doing repetitive keyboarding, or repetitive grasping or manipulation with her hands. Dr. Langenkamp recommended that the applicant consider vocational retraining.

The employer sent the applicant a letter dated December 22, 1995, indicating that it had received the applicant's restrictions and gave the applicant an opportunity to interview for a receptionist position that was available and the applicant should contact the employer for an interview time. The applicant testified that she responded to the employer but Ms. Molter, the employer's representative, was not available. The applicant testified she left a message and the employer called her back on December 28, 1995 and an appointment was set for December 29, 1995. The applicant testified that only an interview was to be discussed but the applicant called and canceled the interview because she was ill, and the interview was rescheduled for January 3, 1996. The applicant testified that she had car problems due to stalling and never had a meeting about the receptionist job. The applicant testified that Ms. Molter informed her that the wage for the receptionist job was $7 per hour and that her former job was $9.18 per hour.

Upon cross-examination the applicant admitted that she was in school while she was employed with the employer on a part time basis. The applicant testified that after January 3, 1996, she called Ms. Molter for another appointment but she missed the subsequent appointment on February 7, 1996, with Marg DeWitt. Ms. Vento, the employer's benefit specialist received the applicant's restrictions in December 1995 and testified that since January, 1996 she had not heard from the applicant and so the applicant was terminated in April 1996.

Ms. Molter, who worked in the employer's human resource department, denied she ever told the applicant that she would be receiving $7 per hour as a receptionist. Ms. Molter testified that she had received a message from the applicant on January 3, 1996 and that on January 5, 1996 she was not successful in trying to reach the applicant and did not hear from her again. There was no guarantee the applicant would get the receptionist position and the employer might have hired somebody else. Ms. Molter could not say when the receptionist position was filled but that the position was within the applicant's physical restrictions.

The employer wrote the applicant a letter dated April 15, 1996, indicating that its recruitment specialist made two appointments to discuss an open position that was within her limitations, however the applicant did not attend either of these meetings. The letter indicated that the employer was not able to place her in another position at the bank and currently did not have any positions that were available that were within her work restrictions, and therefore her employment was terminated effective April 15, 1996.

The applicant's DVR specialist Mr. Norwood was aware that the applicant had been terminated by the employer and he had a copy of the letter. Further, Mr. Norwood was aware that a vocational evaluation was arranged which stated in a report dated December 9, 1996, that the applicant had no transferable skills and no job matches. Mr. Norwood concluded that retraining would be in order because there were no transferable skills and a program was arranged in Afro-American studies for elementary children.

The employer's vocational experts, Mr. Harris and Ms. Lindley, indicated in their report that the applicant could not perform her former job duties due to repetitiveness, but she was capable of transferring her knowledge along with work experience into light duty positions that were currently available in the Milwaukee metropolitan labor market, and she has the ability to earn approximately 85 percent of her former earning capacity with the employer.

Under the holding of Massachusetts Bonding and Insurance Company vs. Industrial Commission, 275 Wis. 505 (1957), unless it is shown before the commission that highly material facts were misrepresented to or withheld from DVR, or that DVR has applied an interpretation of the rehabilitation laws which is entirely outside the scope of reasonable interpretation and hence a clear abuse of administrative power, the commission must find that any applicant who is receiving aide from DVR is entitled to it.

The commission consulted with the administrative law judge concerning his assessment of the witnesses demeanor and testimony. The administrative law judge indicated that he credited the applicant's testimony concerning her reasons for not interviewing for the receptionist position in December 1995 and January 1996. The commission does not disagree with the administrative law judge's credibility assessment. However, the commission credits the testimony of Ms. Molter and Ms. Vento that the employer had work available for the applicant within her work restrictions that she was capable of performing in December 1995 and January 1996. Under the circumstances, given the knowledge of the fact that the employer had contacted the applicant for work available within her restrictions as a receptionist, which she could perform, and given the applicant's failure to follow-up and pursue such job offer following January 3, 1996, the commission finds that the DVR abused it's discretion in certifying the applicant for retraining and failure to follow its own procedures.

The fact that the DVR was aware of the applicant's termination and that the applicant had not been offered the work did not establish that the DVR should not have contacted and tried to place the applicant with the employer. It was not established that the applicant was limited to lifting no more than 10 pounds and sedentary work at the time that she applied for vocational retraining. Dr. Wright's restrictions were written in November 1995 while the applicant was pregnant. Dr. Langenkamp restricted the applicant from doing repetitive reaching, pulling or grasping above shoulder level and in addition she would be specifically restricted from doing repetitive keyboarding or repetitive grasping or manipulation with her hands. Although Mr. Norwood indicated that a vocational assessment found that the applicant had no transferable skills, the evidence indicates that the applicant could have performed the receptionist work with the employer which was within her restrictions. Further, Mr. Harrison and Mr. Lindley indicated in their report that the applicant was capable of transferring her knowledge along with her work experience into light duty positions that were currently available in the Milwaukee Metropolitan labor market. The commission notes that the reasons for the applicant's termination in April 1996 was her failure to appear for an interview for an available receptionist position, and the applicant's subsequent failure to follow up on such employment. Under the circumstances, the commission finds that the DVR abused its discretion in failing to attempt to place the applicant with her former employer or into other suitable employment in the labor market. Therefor, the applicant's claim for vocational rehabilitation benefits must be denied.

NOW, THEREFORE, this

ORDER

The findings and order of the administrative law judge are set aside, and the commission's findings and order are substituted therefore. The applicant's claim for benefits is dismissed.

Dated and mailed: June 19, 1998
ellisid.wrr : 175 : 8 ND § 5.39

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY PAUL R RIEGEL
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

Appealed to Circuit Court. Affirmed February 22, 1999.

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