P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 92073132

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.


The findings and order of the administrative law judge are affirmed.

Dated and mailed October 3, 1996
morfopa.wsd : 101 : 1  ND 5.20  5.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner


1. Background.

a. Generally.

In its petition for commission review, the respondent asks the commission to set aside ALJ Phillip's Findings of Fact and Order because the applicant failed to establish that she is entitled to permanent and total disability. The respondent asserts that the opinion of its vocational expert is more credible than that of the applicant's expert which the ALJ adopted. The respondent also contends that rating the applicant's permanent disability is premature because the applicant had not undertaken a job search or retraining.

A short reiteration of the record will help in the discussion of respondent's position on appeal. The applicant suffered a herniated disc, treated by a surgical discectomy. The only medical practitioner's report in the file, that of Mark C. Moore, M.D., states the applicant's work caused her disability by aggravation, acceleration and precipitation of a preexisting degenerative condition beyond its normal progression. He explains this opinion by observing that the applicant's symptoms appear to be compatible with irritation of the nerve root, and "are definitely related to repetitive use of the right upper extremity as well as lifting." Moore note of November 23, 1993, Exhibit D.

In his form practitioner's report, Dr. Moore assigned a ten percent permanent partial disability to the body as a whole for chronic pain, decreased range of motion, and decreased endurance as a result of the applicant's herniated disc and discectomy. In his note for October 11, 1994, he adopted the work restrictions set out in an eight-page functional capacity evaluation (FCE) issued by the Caremark Center for Physical Therapy, dated September 27, 1994.

These restrictions are: occasional crawling, and frequent bending, stooping, squatting, climbing stairs, crouching kneeling, and balancing. The applicant may occasionally push and pull 33 pounds, and frequently push and pull 20 pounds. The applicant may occasionally carry up to 17 pounds. She may also occasionally lift with both arms up to 12 pounds above her shoulders, and up to 19 pounds from floor to chair or chair to floor. Finally, she is limited to occasional simple grasping, firm grasping, and fine manipulation with her right hand, as well as occasional rotation and flexion of the neck.

In a letter dated July 14, 1995, Dr. Moore specifically stated that these restrictions applied to the applicant's condition of right cervical radiculopathy (chronic) status post cervical disc removal. See Exhibit E. This opinion is important because it eliminates any debate as to whether the restrictions are for a separate scheduled carpal tunnel condition or the unscheduled neck condition described above. The restrictions pertain to the unscheduled neck condition.

The applicant sought vocational services from the DVR (1).   On referral from DVR, vocational consultant Rodney Ross prepared a vocational evaluation report. Mr. Ross's report indicated that formal vocational retraining was probably inappropriate for the applicant. Instead, DVR's recommended vocational plan included time limited job placement services and "short-term skills training" at Kandu Enterprises.

However, Mr. Ross did not consider the applicant's restriction to only occasional right hand use, set out in the Caremark FCE adopted by Dr. Moore. Further, Mr. Ross based his report on restrictions against repetitive neck or right shoulder motion rather than Dr. Moore's adopted restriction to occasional head and neck flexion and rotation. See Exhibit 1, Ross July 10 report, page 1. This undoubtedly affected the types of jobs Mr. Ross opined the applicant would be able to seek direct placement for: assembler, motel cleaner, clothes presser, supply technician, file or mail clerk, semiconductor bonder, and bakery conveyor line worker.

DVR never provided the applicant with job training or placement services, apparently because the applicant intended to move to California. It is also evident from the applicant's testimony that, due to depression, she is not too interested in job placement or retraining services. She did indicate she might seek such services while in California.

b. Expert vocational opinion.

The applicant's vocational expert, Martha Johnson, noted the applicant's employment as a cook's assistant for about 12 years prior to her injury, earning $22,000. She also noted prior short term employment: as an assembler at Borg Instruments in 1977, as an inspector at AC Spark Plugs in 1969, as a salad maker and dishwasher at Howard Johnson's in 1969, and as a postal worker in 1969-70.

Ms. Johnson also noted the applicant had a ninth grade math ability, a fifth to six grade reading ability, describing these levels as "low." Ms. Johnson opined that the applicant was a poor candidate for retraining given her age, low basic skill, hearing impairment, and physical restrictions. She opined the likelihood of job placement was extremely guarded given the applicant's limitation against repetitive use of her right arm or flexion or rotation of the head. She also noted that the work suggested by DVR either was similar to the light duty the applicant could not do for the state, or required communication skills the applicant simply did not possess.

Ms. Johnson's report details the restrictions set out in the Caremark FCE of September 1994, as adopted by Dr. Moore in November 1994. She also noted earlier restrictions imposed by Dr. Moore, including an "estimated functional capacity evaluation" done in March 1994. She also noted the restrictions of an independent medical examiner, Alan Kagen, M.D., (2) against lifting more than 10 to 20 pounds on an occasional basis with no repetitive neck or right shoulder motion.

Ms. Johnson also considered the jobs (semiconductor bonder, conveyor line bakery worker, and racker) which Mr. Ross had opined the applicant was qualified to perform through an assessment of transferable skills. Two of them involved constant or occasional reaching and handling, which was beyond the applicant's work restrictions. Ms. Johnson opined it was unlikely that the applicant would be considered for any of the three jobs given her disabilities and physical restrictions.

Ms. Johnson also considered the jobs that the applicant might locate with job placement assistance (hotel/motel cleaner, companion, automatic presser, shirt presser, assembler, central supply technician, file clerk and mail clerk.) Ms. Johnson pointed out that except for the companion job, all of these involved repetitive movement of the right hand, which the applicant could not do. She also noted that work as a companion would not be practical unless the person requiring the companion service was able to use sign language. Ms. Johnson opined the prognosis for job placement is extremely guarded.

Finally, Ms. Johnson considered Mr. Ross's suggestion that the applicant consider short-term training programs at Kandu Industries, a sheltered workshop. Ms. Johnson noted that these programs, not described in detail by Mr. Ross, involved the type of food preparation and dishwashing work which the applicant could not perform at her job at the Wisconsin School for the Deaf. Ms. Johnson also concluded, like Mr. Ross, that given the applicant's low basic skills, hearing impairment, and inability to do repetitive work with her right arm, formal retraining was not practical.

Ms. Johnson concluded that given the applicant's limited work experience, age, hearing impairment, low basic skills in reading and math, and work restrictions, she would be eligible for so few positions that a reasonably stable labor market for them does not exist.

The state's vocational expert is Susan K. Arnhold. Ms. Arnhold noted the applicant's education, and administered some SRA testing. While the math test placed the applicant in the 75th percentile of people looking for unskilled work and the 45th percentile of people looking for semi-skilled work, her reading score was in the 12th and 7th percentiles (well below what you would expect of a high school graduate.)

Ms. Arnhold also noted the applicant's job history which, except for an additional short term job making speakers, is essentially the same history as described by applicant's vocational expert Johnson. In her first report, she detailed the restrictions set by Dr. Moore in his initial treatment note of November 1993, and considered the Caremark FCE of September 1994 in a supplemental report.

Ms. Arnhold concluded that, based on these restrictions, the applicant could work as an assembler, an inspector, a file clerk, a machine operator, and a library clerk. Ms. Arnhold reported that these jobs paid between $6 and $10 per hour (although only the inspector job paid over $7 per hour). Based on the applicant's age (which permitted advancement beyond entry level wage), her education, her history of semi-skilled and unskilled work, her vocational testing, and her efforts to find work, Ms. Arnhold opined the applicant sustained a 50 to 60 percent loss of earning capacity based on Dr. Moore's restrictions.

2. Discussion.

a. Generally.

The issue in this case is whether, given her functional restrictions from the work injury, as well as her age, training, education, efforts to find work and various other factors set out in sec. DWD 80.34 (1), Wis. Adm. Code., the applicant has suffered a permanent and total impairment of earning capacity. This issue turns on the applicability of the "odd-lot rule," an evidentiary rule discussed by the supreme court at length in 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." 1C Larson, Workmen's Compensation, sec. 57.61(d) (1993). In addition, efforts to find suitable employment and willingness to undergo a reasonable physical or vocational rehabilitation program are factors specifically listed in sec. DWD 80.34 (1)(h), (i) and (j), Wis. Adm. Code, in determining loss of earning capacity.

b. Has applicant shown a prima facie case of odd-lot despite no job search?

The main question in this case is whether Ms. Johnson's opinion that the applicant is permanently and totally disabled on a vocational basis is more credible than Ms. Arnhold's contrary opinion. The main concern with Ms. Johnson's report, in the commission's view, is that she opines the applicant is in the "odd-lot" category, even though the applicant has not attempted the job search recommended by Mr. Ross.

However, the applicant is a deaf woman who must communicate with most people through an interpreter. Both experts agree she has fifth to six grade reading skills. The only medical opinion in the record indicates she can only use her dominant right hand occasionally, and that she has lifting restrictions that fall between light and sedentary work. Other than her job for the School for the Deaf, she has never held a job longer than a few months.

Given the applicant's limited ability to communicate and her level of reading comprehension, the commission cannot conclude that clerical work is a good match for the applicant, even if she can find clerical work that will accommodate only occasional use of her dominant right hand. Machine operation and assembly work also seem unlikely choices, given her physical restrictions. Inspection work might be more practical, but even that would ordinarily involve a lot of hand work, and the applicant's lifting restrictions would also come into play.

The commission acknowledges that the DVR consultant Ross thought the applicant could find work in a variety of jobs. However, while Mr. Ross's report lists some of the applicant's restrictions, it omits what seems the most significant, the limit on right hand use. The result of this omission seems glaringly obvious when one considers the jobs Mr. Ross thought the applicant should apply for: motel cleaner, shirt presser, assembler, mail clerk, and conveyor line bakery worker. And it is also significant that, as an alternative to placement efforts, Mr. Ross suggests training at a sheltered work shop.

Consequently, the commission accepts as credible Ms. Johnson's opinion that, given the applicant's capacity following the work injury, age, education, training and the other factors in sec. DWD 80.34, Wis. Adm. Code, the jobs for which the applicant is eligible are so few in quality, quantity or dependability that no reasonably stable labor market for them exists. The commission does not believe a job search would prove otherwise. Further, the opinions of Mr. Ross and Ms. Arnhold to the contrary are rejected as less credible than Ms. Johnson's opinion as they are dependent on the applicant's ability to find work in various job classifications which the commission concludes are simply not reasonable given her restrictions, work experience and skills.

Nor has the respondent rebutted the applicant's prima facie case under Balczewski by identifying specific jobs that are currently available to the applicant. Again, the jobs mentioned by Mr. Ross and Ms. Arnhold are not reasonable vocational options in the commission's view. In any event, simply listing possible job classifications generally does not rebut a prima facie case of permanent and total disability on an odd-lot basis. Balczewski, at 76 Wis. 2d 495. (3)

c. Does inadequate job search make the permanent disability claim "premature?"

Finally, the commission turns to the respondent's argument that awarding permanent disability on a vocational basis is "premature" given what the respondent believes was an inadequate job search. As noted above, the commission is satisfied that the applicant is permanently and totally disabled, her job search efforts notwithstanding. Moreover, ALJs and the commission have the authority to deny an employer's request that an applicant be made to undergo vocational rehabilitation prior to rating permanent disability on a vocational basis (or loss of earning capacity), if the agency concludes the rehabilitate services are "not warranted."

In Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272 (1972), an injured worker claimed permanent and total disability. The ALJ awarded the injured worker 45 percent loss of earning capacity, ordered the applicant to undergo DVR rehabilitation, and retained jurisdiction on additional permanent disability after the training. On appeal, the commission's predecessor agency set aside the ALJ's award, determined "vocational rehabilitation was not warranted in view of the applicant's disability, limited education, and language barrier," and awarded permanent total disability. The supreme court affirmed.

True, the commission or ALJ Phillips could have required the applicant to undertake a job search or further rehabilitative services from DVR prior to rating loss of earning capacity. (4) However, the commission and the ALJ need not require an injured worker to undertake a job search where, as here, a vocational expert has credibly opined that an attempt to find suitable work would be futile.



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(1)( Back ) The division of vocational rehabilitation in the department of health and social services.

(2)( Back ) Dr. Kagen's report is not part of this record.

(3)( Back ) See also Cabral v. LIRC, court of appeals case no. 94-3309-FT, district I unpublished decision at page 11 (December 12, 1995); Morey v. LIRC, court of appeals case no. 95-0673-FT, district III unpublished decision (March 21, 1996).

(4)( Back ) In Transamerica, the supreme court specifically disavowed the circuit court's conclusion that a reluctant applicant could never be forced to undergo DVR retraining. Indeed, in subsequent cases, the commission has required workers to undergo DVR retraining, citing Transamerica.