STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
LONNIE SMITH, Applicant
MILWAUKEE SCRAP METAL CO, Employer
TRAVELERS CASUALTY & SURETY CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1996012444
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: February 25, 1999
smithlo.wsd : 101 : 7 ND § 5.31
/s/ David B. Falstad, Chairman
Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The administrative law judge found the applicant permanently and totally disabled on a vocational or "odd-lot" basis under Balzcewski v. DILHR, 76 Wis. 2d 487 (1976). In reaching his decision, the ALJ relied on the opinions of the applicant's treating doctor (Allan Kagen, M.D.) and vocational expert (Roger Pettee). The employer and insurer (collectively, the respondent) appeal.
The respondent contends that the more credible opinion of its medical expert (W.W. Schaefer, M.D.) establishes that the applicant had no permanent partial disability or permanent work restrictions from the work injury. The respondent further contends that even if the applicant had permanent restrictions, the more credible opinion of its vocational expert (Dennis Gross) established that the applicant was not permanently and totally disabled on a vocational basis, but rather sustained only 50 to 60 percent loss of earning capacity.
With respect to the contention that Dr. Schaefer's opinion is more credible than Dr. Kagen's, the respondent points out that Dr. Kagen believed the work injury occurred eight weeks later than it did. However, the applicant received ongoing treatment from Drs. Weinstein, Spicuzza and Flesch from the time of the work injury until he saw Dr. Kagen. Moreover, the only difference that the eight week time difference would seem to have made is that Dr. Kagen would have opined he reached a healing plateau eight weeks earlier. Clearly, the applicant was symptomatic at that time; Dr. Kagen reported in July 1996 (before the car accident) that he anticipated residual disability. In other words, Dr. Kagen's misimpression that the applicant's symptoms were unresolved for a shorter period than they actually had been unresolved in no way undercuts his opinion that the applicant had permanent residual back problems.
The respondent also challenges Dr. Kagen's assessment of permanent disability, noting in its brief:
"In the end, Dr. Kagen did assess permanency and work restrictions. He based his opinion in this regard upon residual neck pain, low back pain, and headaches (Appl. Ex. A). However, we know from his testimony and the medical evidence that the neck pain and headaches were completely resolved, and there is no apparent reason for the low back pain."
Dr. Kagen did not testify at either of the hearings in this matter. Further, while Dr. Kagen anticipated permanent residuals from neck pain and headaches in a letter dated September 26, 1996 (Exhibit A), that letter did not express his final opinion. Rather, in a November 14, 1996 letter (Exhibit A) and a December 10, 1996 letter (Exhibit B), Dr. Kagen reported that the applicant had recovered from the cervical and concussive aspects of his work injury. Those letters also establish that the relatively low amount of permanent disability rated by Dr. Kagen was for his low back and radicular leg problems only, not the headaches or cervical problems.
The commission also is persuaded that Dr. Kagen's opinion that the applicant had permanent disability is supported by the record. The applicant testified credibly to continuing low back pain to the point of the August 1996 car accident and at the time of the July 1997 hearing. Further, even IME Schaefer noted that the applicant's back problem did not improve with treatment after the February 1996 work injury and had not improved by the time of the August 1996 car accident. Exhibit 1, report of Schaefer, page 1. The commission believes the ALJ properly concluded that the applicant had some minor residual permanent disability from the work injury.
The respondent further contends that, even accepting Dr. Kagen's restrictions, the opinion of respondent's vocational expert Gross is more credible than that of applicant's expert Pettee. Again, the commission cannot agree.
The applicant was 62 years old when he reached a healing plateau. He may occasionally lift not more than twenty pounds, must avoid repetitive back motion, and must be able to change position as needed. He has no secondary education and his primary education was incomplete at best. He is functionally illiterate. (1) He has worked virtually all of his adult life in relatively heavy labor sorting, handling and transporting scrap metal. He has few if any skills transferrable to the light duty work to which he is now restricted. In light of these factors and considering Mr. Pettee's report, the applicant has made a prima facie case of odd-lot unemployabilty. Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977).
In his report, Mr. Gross mentions several employment possibilities. However, some of the employers listed did not have current openings. One of these employers also indicated the work might require too much bending. Another employer frankly stated it would be difficult to quantify demand for workers with the applicant's restrictions, but that the applicant could "keep in touch." Mr. Gross also suggests that due to the changing face of the American work force, age is not the barrier it once was. He cites the opinion of an associate professor at the UW extension office in Waukesha County that "because of ... the low level of unemployment, there are people in the work force getting hired who in tougher times would not get hired."
The commission cannot conclude that Mr. Gross's report rebuts the applicant's prima facie case of odd-lot unemployability. Again, several of the employers mentioned by Mr. Gross either did not have work available, or frankly admitted problems with accommodating the applicant's restrictions. On this record, the commission believes it speculative to conclude that the applicant is among those benefiting from the low level of unemployment and the opportunities available to workers who would not otherwise be hired. In sum, Mr. Gross's report does not rebut the applicant's prima facie case by providing proof that the applicant can only perform work in the regular labor market and that such work is actually available. Balczewski, supra, at 76 Wis. 2d 495-96; 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).
cc: ATTORNEY DAVID L WEIR
ZUBRENSKY PADDEN HORWITZ & WEIR
ATTORNEY LOIS A MONEFELDT
SPINDLER ROITBURD SCHWEMER & MUNSON
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