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

JOHN CARLIN, Applicant

PELTZ BROTHERS CORPORATION, Employer

CASUALTY INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995025435

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: August 31, 1998
carlinj.wsd : 101 : 7 ND § 5.20  § 8.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The primary issue in this case is the extent of permanent disability, if any, sustained by the applicant on the basis of loss of earning capacity. The ALJ rejected the opinions of both vocational experts on this issue. He rejected Ms. Panizich's opinion that the applicant had no loss of earning capacity, stating that because "the applicant had worked in the distant past for a higher wage rate elsewhere does not mean he did not incur a loss of earning capacity as a result of the work injury which precluded him from performing heavy work that he had performed for the respondent." On the other hand, the ALJ also criticized Mr. Greenya's opinion that the applicant had a 30 percent loss of earning capacity because Mr. Greenya did not consider the transferable skills the applicant acquired from his prior employment.

Instead of the zero and 30 percent figures offered by the vocational experts, the ALJ awarded loss of earning at 20 percent. He also left his order interlocutory noting that the applicant might require further treatment. Finally, the ALJ issued his order on October 30, 1997, or 127 days after he closed the record on June 25, 1997.

The employer and the insurer (collectively, the respondent) raise three issues on appeal. First, the respondent contends the applicant should not have received any award for loss of earning capacity in accordance with the opinion given by its expert, Ms. Panizich. Second, the respondent asserts the ALJ's order should not have been interlocutory (or at least his reservation of jurisdiction should have been more narrow.) Third, in its petition for review, though not in its brief, the respondent questions the timeliness and legal effectiveness of the ALJ's decision.

a. LOEC.

Ms. Panizich's conclusion that the applicant sustained no loss of earning capacity is premised on her belief he could return to work as a land agent (1) which he had performed prior to starting his employment with the employer. However, the applicant testified on cross-examination that he could not physically handle work as a land agent as it involved bending to look in legal description books in register of deeds offices, required moving file boxes in excess of his restrictions, and considerable travel by car. The applicant described the job in substantially similar terms to his vocational expert, Mr. Greenya. The applicant also testified he was being "squeezed out of" land agent work when he stopped doing it, apparently because governmental agencies were not satisfied with his qualifications.

Ms. Panizich opined that the applicant could physically handle the land agent work. She did not consider the job duties to include bending, stooping or lifting as described by the applicant. Instead, Ms. Panizich described the job as light duty record review.

However, the commission concludes that work as a land agent would require frequent bending, stooping, and lifting. It therefore credits Mr. Greenya's classification of the work as medium duty. The applicant's doctors and the respondent's independent medical examiner specifically prohibited the applicant from more than occasional (or non-frequent) bending, stooping and similar positions. The commission concludes the land agent work was no longer within the applicant's restrictions, and should not serve as a basis for denying compensation for loss of earning capacity.

Beyond the applicant's physical capacity for such work, the commission also concludes the applicant was not a likely candidate to return to his prior level of earnings as a land agent, in light of his testimony he had been "squeezed out." On this basis, even if land agent work was available to the applicant in some limited capacity, his failure to apply for work is only a factor in considering how much loss of earning capacity the applicant has sustained; it does not bar an award for loss of earning capacity completely. See: Wis. Admin. Code § DWD 80.34(1)(h) and (i).

The respondent also asserts that the applicant's loss of earning capacity claim should be denied because he did not seek retraining with the Division of Vocational Rehabilitation (DVR). On that issue, the respondent cites Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272 (1972). However, in Transamerica the court expressly refused to hold that a worker must seek retraining before receiving an award for loss of earning capacity. Rather, the court reserved to the department the discretion to order retraining or not as the facts warranted. Id., at 54 Wis. 2d 279-81. In this case, the ALJ's exercise of discretion in refusing to reduce or deny loss of earning capacity based on the applicant's failure to seek retraining with DVR is supported by the fact that neither vocational expert suggests DVR retraining as a viable vocational option.

In sum, the commission concludes that the applicant cannot return to work as a land agent and earn as much as he did in early 1992 and 1993. In addition, the applicant's serious injury prevents him from continuing to work as a truck driver. The effect of this vocational loss is mitigated somewhat by transferrable skills from prior employment. Moreover, to the extent the applicant's efforts to find better-paying work were lacking, the ALJ properly dealt with that shortcoming by reducing the applicant's loss of earning capacity award below the level estimated by Mr. Greenya. A 20 percent loss of earning capacity award is quite reasonable on this record.

b. Interlocutory order?

The next question is whether the ALJ erred by issuing an interlocutory order on all issues. The Supreme Court has held that the commission should ordinarily reserve jurisdiction on permanent disability until it may be definitely found that there will be no additional permanent disability. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1961) and Vernon County v. ILHR Dept., 60 Wis. 2d 736, 740 (1973). Beyond that, subsequent legislation has provided that ALJs and the commission have considerable latitude in this area. An interlocutory order may be issued where the effect of the injury is uncertain or the medical evidence is considered inadequate. Wis. Stat. § 102.18(1)(b) and DWD Worker's Compensation Act of Wisconsin with Amendments to January 1, 1996, note 83. In this case, of course, even the employer's independent medical examiner, Dr. Huizenga, has opined that the applicant's condition could worsen to the point surgery may be required. (2)

The employer notes in its brief that the applicant has not always been compliant with his physician's recommendations. That comment evidently comes from Dr. Marsh's November 1, 1995 note in which Dr. Marsh indicated that the applicant had not followed up on the many recommendations made in his August 31, 1995 note regarding seeing other specialists. However, Dr. Marsh's May 28, 1996 note indicates the applicant's condition, by then at least, had been considered by all the relevant specialists.

In sum, the ALJ's reservation of jurisdiciton is appropriate in this case.

c. Ninety-day rule.

Finally, in its petition, though not its brief, the employer suggests that the ALJ's order may be somehow unenforceable because it was issued after the 90-day period required under Wis. Stat. § 102.18(1)(b) for issuing a decision. However, the commission has consistently rejected that argument, construing Wis. Stat. § 102.18(1)(b) as directory rather than mandatory. Marc G. Tutlewski v. Big Buck Building Center, WC Claim no. 95027768 (LIRC, March 12, 1998) (and cases cited therein.)

cc: ATTORNEY JOHN D NEAL
STAFFORD & NEAL SC

ATTORNEY RONALD S APLIN
PETERSON JOHNSON & MURRAY SC

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Footnotes:

(1)( Back ) or right-of way agent

(2)( Back ) Dr. Huizenga specifically reports that the applicant "may have further progression of this condition and lead to surgical need." Exhibits A and 1, summary report of Dr. Huizenga, page 1