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


BARBARA KREZMAN, Applicant

FLEET MORTGAGE CORP, Employer

GENERAL ACCIDENT INS

WORKER'S COMPENSATION DECISION
Claim No. 1993016147


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: November 30, 1998
krezmba.wsd : 101 : 7 ND § 5.31

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Posture.

The applicant, who was born in 1939, worked as a data entry clerk. She injured her back in 1993 while bending and lifting boxes of files, evidently as part of some special assignment. She has had two lumbar fusion surgeries, but continues to experience substantial low back and leg symptoms.

The ALJ found the applicant permanently and totally disabled on a vocational basis as a result of the work injury. The employer and the insurer (collectively, the respondent) appeal. The respondent asserts that the commission should credit the opinion of its vocational expert that the applicant is not permanently and totally disabled, but instead has suffered only 53 to 63 percent loss of earning capacity. However, the commission cannot agree with the respondent's position.

2. Expert vocational evidence.

Maude Prall is the applicant's vocational expert. She noted the applicant's age (57), her high school education, her prior experience in jobs that provided little transferable skills given her work restrictions, and that the work restrictions themselves limit the applicant to less than the full range of sedentary occupations. Ms. Prall opined that, under these circumstances, there were so few employment options out in the market that the applicant sustained a 100 percent vocational loss. In other words, Ms. Prall found the applicant permanently and totally disabled on an odd-lot basis.

The respondent's vocational expert, Marjorie DeWitt, testified at the hearing. Ms. DeWitt concluded that, based on the restrictions imposed by Dr. Delahunt, the applicant would be capable of clerical work, general office clerical work, hotel clerk, and selective cashier jobs, with an average earning of $6.54. Based on part-time earnings, Ms. DeWitt calculated the loss of earning capacity at 53 to 63 percent.

Ms. DeWitt specifically opined that the applicant could have performed her previous job at the gas station convenience store without lifting and bending. She noted, too, that in the clerical jobs the applicant would have flexibility to move between sitting and standing. Finally, Ms. DeWitt noted that it is actually easier to find unskilled part-time work than unskilled full-time work.

3. The "odd-lot" rule.

The applicant contends her work injury has left her totally disabled on a vocational basis. The primary issue in such a case is whether, given an injured worker's functional restrictions from the work injury, as well as his age, training, education, efforts to find work and various other factors set out in Wis. Admin. Code, § DWD 80.34(1), the injured worker has suffered a permanent and total impairment of earning capacity. Under the "odd-lot" rule, the commission must find a person permanently and totally disabled on a vocational basis if, given the restrictions from the work injury, the only work still available to the applicant are "odd-lot" jobs of the type not regularly and continuously available in the general labor market.

In application, the odd-lot doctrine is an evidentiary rule triggered when an injured worker shows that only odd-lot work is available to him or her. 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).

Professor Larson has noted that in odd-lot cases "it is not unreasonable to place the burden of proof on [the employe] to establish the unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable effort to secure suitable employment." 4 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law, sec. 57.61(d) (MB, 1998). Thus, to make the prima facie case of odd-lot unemployability, the commission requires reasonable efforts to find work, keeping in mind that what is reasonable differs from case-to-case. Frederick West v. LIRC and Roadway Express, Case No. 95-2622 (Wis. Ct. App., June 11, 1996.)

Two recent court of appeals cases have focused on what happens once a vocational expert opines that an applicant cannot find work that is regularly and continuously available (that is, that the worker is odd-lot.) Rogelio Cabral v. LIRC, Case No. 94-3309-FT (Wis. Ct. App., December 12, 1995) and Harry Morey v. LIRC, Case No. 95-0673-FT (Wis. Ct. App., March 21, 1996). What is clear from Cabral and Morey is that, once an applicant has made a prima facie case under Balczewski, the respondent must provide proof both that the applicant can perform work in the regular labor market, and that such work is actually available.

Odd-lot cases, then, come down to two questions: (a) has the applicant made a prima facie case that work is not regularly and continuously available on the job market given her restrictions, and (b) if so, has this showing been rebutted by the employer who establishes that such work is in fact actually available? See Cabral, slip op., at page 11.

4. Discussion.

The ALJ found the report of the applicant's expert, Ms. Prall, more credible on these points. He noted that Dr. Delahunt limited the applicant to less than the full range of sedentary work, and that she had great difficulty performing the basic tasks of every day living.

On appeal, the respondent asserts that Ms. Prall's report is defective because she did not consider the jobs which Ms. DeWitt opined the applicant could do (convenience store clerk, hotel clerk, etc.) The respondent also noted that the applicant was able to help take care of her sister, husband, and mother, and drive from West Bend to Milwaukee do this. Further, the respondent pointed out that the applicant was content to stay off work and has not examined the possibility of retraining or conducted a thorough job search.

However, the commission concludes that the applicant made a prima facie case of odd-lot unemployability; that is, the applicant has shown that work is not regularly and continuously available for her in the labor market. The commission further concludes that the respondent has not rebutted the applicant's prima facie case by showing work is actually available.

First, the applicant's restrictions prevent her from returning to her former duties as a data entry clerk. The applicant has had two unsuccessful lumbar fusion surgeries, and now has restrictions permitting only an occasional ten pound lift, and prohibiting bending, squatting and crawling. She cannot stand more than two hours per workday, nor sit more than two hours per workday. The ALJ reasonably credited the applicant's testimony about how the substantial adverse effect her physical condition has on her everyday life. In sum, the commission concludes the applicant cannot actually perform the limited clerical occupations cited by Ms. DeWitt.

Further, the applicant was 54 when injured, and 57 in October 1996 when she stopped treating for her back. Her age must be considered a negative factor in obtaining re-employment, particularly in jobs involving factory production worker supervision. In addition, the applicant's prior jobs did not provide transferable skills that would help her secure the part- time sub-sedentary work she is able to perform; at least, Ms. DeWitt did not identify any such skills at the hearing.

Moreover, the applicant is restricted to less than an eight- hour day, not simply fewer than 40 hours per week. Thus, she not only must find part-time work, but work which permits her to work less than a full daily shift. The commission must conclude that it is probably harder to find six-hour per day hotel clerk or convenience store work, particularly once the sitting and standing restrictions are factored in, than such work part-time at 8 hours per day. Consequently, the commission cannot credit Ms. DeWitt's statement that unskilled part-time work is easier to find than unskilled full-time work, at least with respect to the part-time hours the applicant can perform.

Regarding the applicant's failure to look for work after her injury, the commission notes that the applicant underwent considerable treatment (including two fusion surgeries) between February 1993 and October 1996. She also has qualified for social security. Given her work restrictions, the applicant was justified in concluding a work search would be futile and not reasonable. (1) Thus, even though the applicant has made no real effort to find work, she has still made her prima facie case.

The commission must also conclude that the respondent has not rebutted the prima facie case. Again, the commission is persuaded that the applicant could not physically do any of the jobs suggested by Ms. DeWitt, given her restrictions to occasional 10-pound lifting and against any bending. Beyond that, the commission doubts that the applicant could have actually obtained such a job (even assuming she could physically do it), given her age, the restrictions against prolonged sitting or standing, and the restriction to less than a full day's work.

More importantly, however, the respondent has failed to show that work is actually available to the applicant. Balczewski, at 76 Wis. 2d 495-96, suggests that an employer must do more than offer an opinion that a worker can do certain types of select sedentary work, and then "round out the case for noncompensability by adding a presumption that [such] work is available" simply by proximity to the Milwaukee labor market. Stated another way, respondent's expert DeWitt does not show that work is available to the applicant, but simply lists the jobs she believes the applicant can do, and then presumes they are available. In short, Ms. DeWitt's opinion is not sufficient to rebut the applicant's prima facie showing under the facts of this case. Cabral, supra, slip. op., at page 11.


[ Search WC Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Nor does the commission conclude the applicant could work because she has cared for an ill husband, parent and sister. First, the applicant's testimony indicates that she did not provide a great deal of care beyond cooking and shopping. Second, at least part of the time she cared for her mother and sister, she lived with her parents in Milwaukee, eliminating the commute from West Bend. Finally, cooking and shopping for ill family members somehow does not call into question the applicant's work restrictions; at least no medical doctor has offered an opinion to that effect.