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


DANIEL D WENDT, Applicant

FREDERICK REDI MIX INC, Employer

HERITAGE MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995030200


A hearing was held in this matter before an administrative law judge with the Division of Worker's Compensation in the Department of Workforce Development on April 24, 1998. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $440, and a May 2, 1995 compensable injury. The respondent also conceded and paid temporary total disability for various periods in the amount of $3,031.08. At issue at the hearing, and now before the commission, was the nature and extent of disability beyond that conceded.

The administrative law judge issued his findings of fact and order in this case on May 5, 1998. The applicant submitted a timely petition for commission review of the administrative law judge's findings and order seeking additional compensation for temporary disability. The employer and the insurer (collectively, the respondent) filed a cross-petition seeking a reduced award for permanent partial disability. Thereafter, both the respondent and the applicant submitted briefs.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1967, suffered a depressed nasal fracture caused by trauma to the nose while playing basketball as an adolescent. He underwent rhinoseptoplasty and bilateral intranasal ethmoidectomy procedures in 1984 to correct the nasal airway obstruction from the basketball injury. The applicant recovered from the 1984 procedures without complication. Treatment notes which indicate the applicant was "doing better" by May 1984; that his nasal airway had opened; and that the applicant did not treat for nasal problems again until his work injury eleven years later on May 2, 1995.

By May 1995, the applicant was employed driving a mixer and dump truck for the employer, a concrete company. He was injured on May 2, 1995 when he was struck in the nose by a pipe. His nose began to bleed and the force of the blow split his eyelid in half.

The applicant was seen in a hospital emergency room on that same day. The ER nurse noted the applicant's prior treatment, including 1984 surgery. The diagnosis was "nasal contusion/os occult fx," which the commission concludes refers to bruising and a fracture.

The applicant went back to work that same day. However, when his symptoms continued, specifically difficulty breathing through the left side of the nose, another x-ray was done on May 5, 1995. It showed a break in the nasal bone on the left with depression that was probably new, though the radiologist noted a history of the 1984 injury and treatment.

The applicant also saw M.C. Janowak, M.D., on May 5, 1995. The doctor explained that the work injury had caused a fracture of his nose, and a collapse of the nasal dorsum precluding breathing through that side. Exhibit C, May 12, 1995 note of Janowak to Heritage Mutual. The doctor also noted that he had tried to reduce the nasal fracture; that although he could get it partially reduced the applicant still had obstruction; and that the applicant could not breathe through the left side at all. Dr. Janowak wanted to do an open reduction procedure surgically. Exhibit C, May 5, 1995 treatment note of Janowak.

Accordingly, on May 11, 1995, Dr. Janowak performed an open reduction of a nasal fracture and septoplasty on a pre-operative diagnosis of collapsed nasal dorsum, left side with nasal obstruction, obligant mouth breathing and deflected septum. This procedure involved removing or stabilizing a septal spur that was obstructing the applicant's airway.

Dr. Janowak's notes indicate the surgery was not entirely successful. In addition, Dr. Janowak's post surgical notes mention that lime from cement made the applicant sneeze. The applicant testified that he had returned to work, in outside maintenance duties, on May 23, 1995. He wore a mask, but that did not help and his nose became irritated and bled.

On June 30, 1995, the employer laid the applicant off from work. The applicant has not worked since. The applicant grieved the lay-off with his union. The matter was resolved when the applicant agreed to resign as of July 28, 1995, in exchange of accrued vacation and two weeks pay. Exhibit 1. The "settlement agreement" was part of the union grievance process; it was not a workers compensation compromise under Wis. Stat. § 102.16(1). According to the applicant, he agreed to resign because he could no longer do the job. He received unemployment insurance benefits for some period thereafter.

The applicant did not treat from July 1995 to January 1996. In his note for January 3, 1996, Dr. Janowak noted that the applicant's nasal dorsum on the left "is now collapsed." The doctor suggested a "redo surgery to try to reconstruct" with a referral to a plastic surgeon or ear-nose-throat specialist (specifically mentioning Bruce Sterman.) Dr. Janowak concluded his note by observing that the May 2, 1995 fracture at work prompted the May 1995 surgery to try to reconstruct the collapsed nasal dorsum following the trauma.

About this time, the applicant was examined by an independent medical examiner, David Zeman, M.D., for the employer. IME Zeman diagnosed a nasal fracture with collapse on the right side of the nose leaving the applicant with difficulty breathing. He noted the applicant had been returned to work with a restriction against avoiding concrete powder and lime in the air. Dr. Zeman himself set a restriction against continuous strenuous activity due to the applicant's difficulty breathing. He indicated this restriction might become final if the applicant did not undergo surgery to repair the collapse in his nose.

The applicant saw Dr. Sterman on March 15, 1996. He noted the treatment for the nasal fracture of many years past, and the more recent severe nasal fracture when his nose was hit by a pipe at work on May 2, 1995. On examination, the doctor noted severe fracturing and shifting of the nose in on the left side and pushed over toward the right. He noted a severely deviated septum, and a quite narrow nasal airway.

Dr. Sterman diagnosed a nasal airway obstruction and external nasal deformity. He thought a septo-rhinoplasty was necessary for correction, a procedure that might require an ear cartilage graft.

The surgery was performed on or about April 19, 1996. Dr. Sterman found a great deal of scar tissue in the nasal passages and a collapse in the nasal valve area. Exhibit 7, January 1997 report of McDonald, page 2. Dr. Sterman placed a spreader graft as part of the surgery.

On April 26, 1996, Dr. Sterman expected an excellent result one week status-post surgery. The applicant told the doctor he was starting to get air through his nose, and felt that things were coming along. Crusting was noted, however. On May 3, 1996 the doctor noted that the applicant continued to feel he was doing well. At this point, the doctor told the applicant that he did correct the lower two-thirds of his nose first, and did not do osteotomies or treat the bony dorsum because he did not want to disturb the healing in the area. Dr. Sterman recommended a kind of wait-and-see approach with the upper third of the nose. The doctor and patient were both pleased with the result, however.

On May 17, 1996, Dr. Sterman continued to note crusting inside the nose, which the doctor felt not unusual given the amount of mucosal trauma. The doctor suggested it might be worthwhile to at this point to do osteotomies on the right side to correct that portion of the nose. The applicant continued to have a dorsal abnormality which the doctor thought might be amenable to surgical repair. The applicant wanted to wait until after his upcoming wedding.

About this time, the applicant was released to return to work by Dr. Sterman. According to the applicant, Dr. Sterman released him to work with a restriction that he wear a respiratory mask with a canister. (Transcript, page 2.) This dovetails with a note from the insurer which indicates that

Dr. Sterman released him in late May. Finally, Dr. Janowak's response to an inquiry from the insurer in exhibit 2 indicates that the applicant was released to work in May 1996 subject to the restriction that he wear a mask.

A representative of the insurer contacted the applicant about this time as well. See exhibit 3, note of May 21, 1996. The applicant told the insurer that Dr. Sterman had released him to work as of May 27, 1996. The applicant explained, however, he needed further treatment to repair the dorsal abnormality caused by the work injury. Although the insurer noted that the applicant was not working for anyone (including the employer), the insurer informed him it would stop paying his benefits as of May 27, 1996.

The applicant returned to Dr. Sterman on July 29, 1996. The applicant told the doctor he had had bleeding in an airplane ride, and later developed whistling in his nose. On examination, the doctor noted no crusting in the nasal airway, but a two millimeter perforation in the septum. While the development of a septal perforation was not too much of a surprise given the number of fractures and procedures, Dr. Sterman was surprised it developed more than two months after surgery.

The applicant and the doctor then had a discussion about dust and the applicant's ability to return to work. The applicant indicated he did not think he should return to work because it was too dusty. The doctor told him he could reduce the adverse affects of dust on his nose by using cream or Vaseline, or by using saline irrigants. In essence, the doctor told the applicant he could use a little Vaseline in his nose and would be able to work. See exhibit B, documentation of phone call on July 29, 1996.

On August 30, 1996, Dr. Sterman noted the applicant felt he could breath quite well. He did note problems with seasonal allergies, however, causing the applicant's nose to crust up and whistle. The doctor noted no scarring at the surgical site, but some scarring at the site of the septal perforation. No crusting was noted.

The applicant returned to Dr. Sterman on November 1, 1996, complaining of decreased airway, decreased sense of smell, and more nasal whistling. On examination, the doctor continued to note the septal perforation. He also noted several large nasal polyps on the right side, which he associated with chronic sinusitis attributed to seasonal allergies. He recommended topical steroids to treat the polyps, but noted the risk the steroids would increase the size of the nasal perforation. The doctor also ordered a CT scan.

In a November 1, 1996 letter to the insurer (exhibit B), Dr. Sterman reported that the applicant had not yet reached the point of maximum medical improvement, suggesting the applicant would need further surgery both for the bony deviation of the nose following the injury and for the sinus problem. He also reported that there did seem to be some relationship between the nasal injury and the nasal/sinus disease causing the polyps.

The applicant then saw Dr. Janowak again. Dr. Janowak noted the applicant now had trouble with nasal sprays; they gave him nosebleeds. He noted the continuing nasal abnormality. The doctor also noted that the applicant's allergies, which he had controlled for many years with sprays, now were giving him trouble. Dr. Janowak concluded:

"The patient has continuing problems and there are a number of things going on. Number one - the structural abnormalities in the nose have prevented the patient from having the normal functioning nose that he would like to have. The trauma has necessitated repairs and left the patient with a nose that does give him a substantial amount of symptoms.

"Number two - nasal allergies, which previously were not a problem, now are quite a bit of a problem and the patient's condition is bad enough to the point that allergy evaluation and treatment may be necessary. Since medicines used to control it before it is felt that this is associated with the traumatic events."

Note of Janowak dated November 13, 1996, exhibit C.

The applicant underwent the CT of his sinuses ordered by Dr. Sterman on December 4, 1996. When he returned to Dr. Sterman on December 20, 1996 to have the CT scan results evaluated, the doctor told him the scan showed a complete opacification of the right maxillary sinus and nasal polyps on the right side. He also noted that Dr. Janowak had recommended against using nasal sprays on the polyps because of the risk of increasing the size of the nasal perforation. The doctor recommended a sinus surgery, with excision of the right side polyps, and realignment of the nasal bones to complete the operation started in April. The doctor concluded that "all of this" relates to the work injury.

Treatment continued into 1997. Specifically, in February 1997, Dr. Sterman reported that the applicant had frequent (epistaxis) nose bleeds, probably made worse by exposure to dust. He also noted the septal perforation related to his injuries and surgeries. The doctor also noted that the applicant continued to have an airway problem which should be treated by sinus surgery and revision rhinoplasty. The doctor noted some time off work would be needed after the surgery.

In January 1997, the applicant was examined for the insurer by Michael H. McDonald, M.D., another independent medical examiner. On examination, Dr. McDonald noted crusting in the nose on both sides, and that the applicant had a clear bilateral partial nasal obstruction with some narrowing in the passages of the nasal valve area.

The doctor noted that the applicant applied a saline spray hourly, and also took Hismal for allergies, but that the Hismal aggravated his nosebleeds. Dr. McDonald specifically opined that the applicant had not fully recovered from the work injury, but still had nose bleeds and nasal obstruction. IME McDonald went on to opine that surgery might open up the nasal passage (this refers to the rhinoplasty contemplated by Dr. Sterman), and that a healing plateau would be reached thereafter.

IME McDonald also briefly mentions an ongoing sinus infection, and a mass in the sinus shown by CT scan. He did not believe these were related to the work injury. The obstruction in the nasal passage and the epistaxis, however, Dr. McDonald did relate to the work injury or the consequent surgery. Exhibit 7.

Dr. Sterman went ahead with the surgery, a right revision rhinoplasty, right endoscopic maxillary anstrostomy, and middle turbinate resection, on May 7, 1997. He opined that the surgeries he performed for the work injury would cause no permanent partial disability. He expected the applicant to reach a healing plateau within the next month or two.

On June 30, 1997, Dr. Janowak opined the applicant had reached a healing plateau. Dr. Sterman opined he plateaued by July 18, 1997.

This ends the applicant's medical treatment. According to the applicant, his allergies are still bad. The perforation in his nose causes a whistling sound. The employer has never offered to re-employ him.

Both sides submitted expert medical opinion at the hearing. Treating doctor Janowak opined the applicant could return to work, without limitations, as of June 30, 1997. He reported that the applicant had no permanent disability from the nasal dysfunction, but also stated:

"The disability is cosmetic deformity and nasal obstruction. I am unable to give a percent of disability, as the nose is functioning for airway, but is providing the patient with symptoms, and I am not aware of any way that a percentage can be assigned."

Exhibit A, Janowak note of June 30, 1997. Although he did not mark a causation box on the WC-16B form, Dr. Janowak attributed both structural abnormalities requiring the repair surgeries and the increased allergy problem requiring the sinus surgery to the work injury. See exhibit C, Janowak note of November 13, 1996 (last page of exhibit.)

Treating surgeon Sterman expresses his opinion in several narrative reports in exhibit A. He limits his opinion to when the applicant's healing ended, and whether the work injury caused the need for the surgeries. He leaves the permanent partial disability issue to Dr. Janowak.

Essentially, Dr. Sterman opines both the repair surgeries and the sinus surgery were related to the applicant's work injury. Specifically, he wrote before the final surgery:

"On April 16, 1996 the patient had surgery to repair his nasal airway. At the time bilateral nasal masses were noted. The pathology of those nasal masses was consistent with polypoid sinusitis. It is my belief that this process was indeed a result of his injuries. Because the patient's symptomatology was not completely resolved a CT scan was performed on December 4, 1996. The CT scan showed total opacification of the right maxillary sinus. I believe this is related to the polypoid sinusitis seen at this surgery in April of 1996. I therefore believe this is all connected. The patient continues to have some further problem with airway and I feel that a revision rhinoplasty will be advantageous. I have discussed with the patient doing right sided sinus surgery and revision rhinoplasty.
"...
"[The applicant] does have complaints of frequent epistaxis (nose bleeds) and a has a history of nasal allergies. The patient has developed a septal perforation (small hole in the septum) which is related to his injuries and the several surgical corrections. The patient and Dr. Janowak feel that the epistaxis is worsened by exposure to dust and dirt in the work environment. I will defer that issue to Dr. Janowak."

Exhibit A, letter of February 17, 1997.

Dr. Sterman later declined to opine about the applicant's ability to work in July 1996, and reiterated that the final surgery would be related to the work injury. Exhibit A, letter of March 14, 1997. On June 10, 1997, Dr. Sterman opined the applicant should recover from the surgeries without disability, but that his allergic rhinitis might give him some disability. On August 1, 1997, Dr. Sterman reiterated that the rhinitis was related to the work injury, but he declined to rate the resulting permanent disability. He also opined the applicant recovered from the surgeries by July 18, 1997.

The respondent's first independent medical examiner, David R. Zeman, M.D., examined the applicant in January 1996, which is before the applicant began treating with Dr. Sterman. In sum, Dr. Zeman opined that the applicant had collapse on the left side of his nose from the work injury which caused difficulty breathing, and that the collapse might well require surgery.

Indeed, IME Zeman set restrictions against continuous strenuous activity due to the applicant's difficulty breathing. He indicated this restriction might become final if the applicant did not undergo surgery to repair the collapse in his nose. Shortly thereafter, of course, Dr. Sterman performed the April 1996 septo-rhinoplasty.

IME McDonald issued a report on December 18, 1997 following a re-examination on December 11, 1997. By this time, the applicant had undergone the May 7, 1997 surgery, including right revision rhinoplasty, by Dr. Sterman. IME McDonald noted the applicant's complaint that he could not smell well. The doctor also noted thick nasal crusting on examination, and occasional nosebleeds. He also noted complaints which he regarded as unrelated to the work injury, specifically eye blinking and crackling in his ears when he yawns.

The doctor opined that the applicant is now able to breath better through his nose, and that the physical obstruction caused by the work injury appeared to have been corrected. He did note that the applicant suffered from chronic nasal crusting and intermittent nose bleeds, probably a by-product of his septal perforation.

IME McDonald opined that the applicant reached a plateau of healing as of May 28, 1997 (three weeks after the final surgery.) While he thought the some of the applicant's continued complaints (the ear crackling and eye-blinking) were due to his allergies, IME McDonald did acknowledge that the nasal crusting and nosebleeds were due to the septal perforation which he previously related to the surgeries to treat the work injury.

IME McDonald then opined that the applicant could work, with either a respirator or a simple dust mask to prevent dust exposure. He also rated five percent permanent partial disability based on the septal perforation from the surgical procedures to correct the work injury. He then gives s somewhat equivocal answer as to whether the revision rhinoplasty and endoscopic sinus surgery performed in May 1997 was made necessary by the work injury. Exhibit 5.

Finally, in a follow-up report dated January 12, 1998, Dr. McDonald reduced his permanent partial disability rating to one percent, stating that his initial rating was perhaps high. He reported that the applicant had not lost any sense of smell, though this statement is at odds with the doctor's December 1997 report. The doctor concluded that the applicant's nasal crusting and periodic nosebleeds were less severe a problem than the total loss of smell, and so justified a lower rating. (1)

The first issue is the respondent's liability for temporary total disability after June 30, 1995. In general an employer is liable for temporary disability until an injured worker has reached an end of healing, assuming the worker sustains an actual wage loss. An injured worker's injury is temporary, or still healing, until "there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence." Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

The end of healing, or healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. However, if a worker in fact returns to work while he is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wisconsin Statutes § 102.43(2). But a return to work does not necessarily mean a worker has reached an end of healing, nor does a doctor's release to work particularly when the release is restricted.

In this case, of course, the argument for a May 1996 healing plateau or end of healing, faces two obstacles: First, IME McDonald reported in January 1997 that the applicant was still healing. (2) Second, IME McDonald reported in December 1997 that the applicant plateaued on May 28, 1997. (3) The treating doctors set even later plateau dates. In short, the earliest date for an end of healing in this case is May 28, 1997.

Indeed, the respondent acknowledges that IME McDonald did not set an end of healing until May 28, 1997, three weeks after the final surgery was performed. For its defense of the temporary disability claim, the respondent relies largely on the proposition that the applicant is ineligible because he refused available work during the healing period.

The commission has previously recognized that, if an employer offers work to an injured worker during the healing period and the worker refuses it without reasonable cause, the applicant's temporary disability benefits may be reduced by the wages he would have earned had he accepted the work. Wellsandt v. Chippewa County, WC case no. 93050745 (LIRC, November 28, 1997). However, the burden of providing such work is on the employer under Wis. Admin. Code § DWD 80.47 which provides:

"DWD 80.47 Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period."

The commission has consistently construed Wis. Admin. Code § DWD 80.47 to place the burden of providing work within an injured worker's restrictions on the employer. See: Neal & Danas, Workers Compensation Handbook, § 5.10 (4th ed., 1997).

Thus, the commission cannot conclude that the applicant in effect refused available light duty work in this case. The record establishes that, when the applicant was laid off by the employer in June 1995, he had unsuccessfully attempted to comply with restrictions against inhaling concrete dust and lime by wearing a dust mask. Thereafter, the employer's independent medical examiner noted the restrictions set by Dr. Janowak, and his own restrictions against continuous strenuous activity, pending a surgery. The surgery was performed in April 1996, and in May 1996 the applicant was released following surgery with the restriction that he wear a mask. Exhibit 2.

However, despite being aware of the surgery which would have ended IME Zeman's restriction against continuous strenuous activity, and of Dr. Sterman's release to work with a mask or respirator, the employer never actually offered the applicant work. Instead, it asserts that had the applicant's "resignation" in exchange for two weeks pay following his lay- off, should be regarded as a constructive refusal of whatever work would have been offered after May 1996.

The commission declines to view the "resignation" in 1995 as barring his temporary disability. When the applicant "resigned," of course, the employer had already laid him off. Further, in 1995 his medical condition was substantially different than it was after surgery in April 1996, as evidenced by IME Zeman's restriction against continuous strenuous work pending the surgery performed in April 1996. As best as the commission can tell, nothing in the medical record indicates that the applicant could have complied with the 1995 restrictions (as stated by IME Zeman) to avoid concrete powder and lime in the air, even by wearing a dust mask. (4) The commission credits the applicant's unrebutted testimony that the dust mask did not work when he tried it in 1995. While the reports from Dr. Sterman in the summer of 1996 might have called into question the applicant's refusal to work with a mask after May 1996, no work was offered to him at that time.

In sum, the commission cannot conclude that the applicant unreasonably refused work within his restrictions in 1995. Nor can the commission conclude that the applicant's actions in 1995 relieved the employer from liability for temporary disability in May 1996, when his work restrictions became more definite after additional surgery, given that the employer did not offer him work at that time. Stated another way, the record in this case does not support ending temporary disability liability based on a negotiated or constructive "quit" occurring outside the workers compensation compromise process. (5)

The commission concludes the respondent is liable for temporary total disability from July 1, 1995 (when the applicant stopped working) to May 28, 1997 (the date Dr. McDonald set an end of healing), a period of 99 weeks and three days. At two- thirds of the applicant's average weekly wage of $440, his compensation rate for temporary total disability is $293.33. The total award for temporary disability is thus $29,186.67, from which must be subtracted the $3,031.08 the respondent has previously paid, leaving $26,155.59 currently due for temporary disability. The unemployment insurance division shall be notified of the award of temporary disability for appropriate action under Wis. Stat. § 108.04(12)(e).

The next issue is the extent of permanent disability. The applicant's doctors were not definite about the applicant's permanent disability. In his June 30, 1996 note, however, Dr. Janowak indicated that the applicant had permanent symptoms but that the doctor was unsure how to rate permanent disability. Independent medical examiner McDonald initially rated permanent partial disability at five percent compared to the body as a whole for nosebleeds and crusting from the perforated septum, but later retracted that rating in favor of a lower one percent rating.

As it stands, then, IME McDonald is the only doctor to actually rate permanent disability after the healing plateau. The commission cannot, however, accept his rating of permanent disability at one percent. That rating is based on his conclusion that the applicant had chronic crusting which caused nosebleeds, but that the applicant had not lost any smell. In fact, the applicant has consistently complained of loss of smell, including to Dr. McDonald at the time of the December 1997 independent medical examination. See also Dr. Sterman's November 1, 1996 treatment note. While Dr. McDonald dismissed the applicant's eye-blinking and ear-crackling complaints as related to allergies in his December 1997 report, he did not so dismiss the loss of smell. Because the applicant should receive some permanent disability for his partial loss of smell under Wis. Admin. Code § DWD 80.32(14), the commission concludes that the applicant has permanent partial disability at three percent compared to the body as a whole from the work injury.

Three percent compared to permanent disability to the body as a whole results in 30 weeks of disability compensation. At $164.00 per week, the statutory maximum for permanent partial disability from injuries in 1995, the applicant is entitled to $4,920 in permanent partial disability, all of which has accrued.

In sum, then, the applicant is entitled to an additional $31,075.59 in temporary total and permanent partial disability compensation. He agreed to the protection of an attorney fee under Wis. Stat. § 102.26; at twenty percent of the additional amount awarded the fee is $6,215.12. The fee, plus legal costs of $36.30 shall be deducted from the applicant's award and paid within 30 days. The remainder, $24,824.17, shall be paid to the applicant within 30 days.

No medical expenses are claimed. In addition, Dr. Janowak indicated in his November 1997 practitioner's report that no further treatment was expected. Consequently, this order shall be final.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform with the foregoing and, as modified, are reversed in part and affirmed in part.

Within 30 days the employer and its insurer shall pay all of the following:

(1) To the applicant, Daniel D. Wendt, Twenty-four thousand eight hundred twenty-four dollars and seventeen cents ($24,824.17) in disability compensation.

(2) To the applicant's attorney, Steven J. Lownik, the sum of six thousand two hundred fifteen dollars and twelve cents ($6,215.12) in fees and Thirty-six dollars and thirty cents ($36.30) in costs.

Dated and mailed: November 30, 1998
wendtda.wrr : 101 :3  ND § 5.4, § 5.10

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the presiding ALJ concerning the credibility of the applicant. The ALJ stated he found nothing questionable in the applicant's demeanor, though his answers did tend to ramble. The commission did not modify because of witness credibility, but rather based on its review of the medical records.

Because the applicant is awarded temporary disability during a period when unemployment insurance benefits were paid, a copy of this decision shall be forwarded to the department of workforce development, unemployment insurance division, bureau of legal affairs.


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Footnotes:

(1)( Back ) Total loss of smell is rated at 2.5 percent under Wis. Admin. Code § DWD 80.32(14).

(2)( Back ) Exhibit 7, page 3.

(3)( Back ) Exhibit 4, page 3.

(4)( Back ) The employer asserts in its brief that Dr. Janowak released the applicant to work subject only to a restriction that he wear a mask following office visits on May 19, 1995 and June 26, 1995. However, the commission could not find such a restriction mentioned in Dr. Janowak's treatment notes in exhibit C; one must infer such a restriction from the applicant's testimony that the only restriction he received was to wear a respirator mask around dust. Significantly, in "Final Report and Bill" form dated August 14, 1995, Dr. Janowak left blank the question asking whether the applicant could do the same work as before the accident.

(5)( Back ) Wisconsin Statutes § 102.16(1).