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


GREGORY HUBATCH, Applicant

MILLER BREWING COMPANY, Employer

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1981064308


The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 14, 1998. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is the applicant's eligibility for vocational rehabilitation benefits stemming from the conceded work injury which occurred on November 11, 1981.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is November 17, 1955, began his employment with the employer in 1976. His primary work duty was operating a forklift truck. On November 11, 1981, he sustained a conceded work injury to his back, and on November 20, 1981, Dr. J. Hussussian performed a laminotomy and discectomy at L5-S1. Dr. Hussussian released the applicant to return to work early in 1982, and the applicant first returned to light duty but then to his old job. Dr. Hussussian assessed five percent permanent partial disability, but increased that rating to 10 percent in 1991, due to the persistence of the applicant's back pain.

Over the years, the applicant experienced periodic layoffs from his employment with the employer, including an extended and indefinite layoff from June 1983 until sometime in 1988. During this layoff period the applicant worked as a security guard, garage door opener installer, bartender, and office cleaner. He also applied for retraining at the Division of Vocational Rehabilitation (DVR), but nothing ever came of this.

In January 1996, the employer informed its brewery employes that it was going to have to reduce the work force, and it offered a severance package as an inducement to those who would voluntarily resign. The applicant could not know with certainty whether he would be laid off if he did not accept the severance package, nor could he know with certainty whether he would eventually be rehired by the employer if he was laid off. However, on September 13, 1996, the employer sent him a letter indicating that based on his seniority status, it was expected that he would be laid off on November 16, 1996. The applicant decided to accept the severance package offered to him, which amounted to a cash payment of $22,000. He signed his acceptance of the severance pay plan on October 29, 1996.

In August 1996, the applicant had enrolled in an associate degree program in marketing. He also began an application for vocational rehabilitation assistance with the DVR in November 1996. After an unsuccessful job search, the DVR counselor and the applicant considered a four-year degree program. The counselor, Merkyl, concluded that a two-year degree would not restore the applicant to the wage he was earning at the time his employment with the employer ended (at that time the applicant was earning $20.30 per hour). The plan subsequently changed to allow the applicant to finish his associate degree in marketing, and then secure a second associate degree in microcomputing. Merkyl opined that with these two associate degrees the applicant should be able to find employment at between $15.60 and $17.50 per hour, and within three years be back at the hourly wage he would have been earning with the employer.

Respondents have made several arguments against the applicant's asserted eligibility for vocational rehabilitation benefits under Wis. Stat. § 102.61 (1981 - 82). All but one of these arguments are rejected by the commission.

First, respondents argue that the additional permanent partial disability paid to the applicant in 1991 did not extend the 12-year statute of limitations under Wis. Stat. § 102.17 (4). However, that statute provides that the 12-year limit restarts each time compensation, other than treatment or burial expense, is "last paid." Payment of permanent partial disability in 1991 restarted the 12-year statute of limitations.

Second, respondents argue that the applicant's voluntary acceptance of a severance package in 1996 was a voluntary termination of employment which precludes the reopening of the loss-of-earning-capacity issue under Wis. Stat. § 102.44 (6). However, respondents' argument that this voluntary termination also precludes payment of vocational rehabilitation benefits is incorrect. The applicant's vocational rehabilitation benefits were authorized by authority of Wis. Stat. 102.61 (1981 - 82), which requires for eligibility only that "compensation" have been received under Chapter 102 and certification for retraining have been made by the Department of Vocational Rehabilitation. The "compensation" does not have to have been for loss of earning capacity. The applicant received temporary disability and permanent partial disability attributable to his back injury, and therefore was eligible for vocational rehabilitation under Wis. Stat. § 102.61 (1981 - 82).

Third, respondents argue that the DVR abused its discretion in approving retraining based on the highest wage the applicant had ever earned, occurring at the end of his employment with the employer. Respondents also asserted that the administrative law judge failed to make specific findings regarding the applicant's medical restrictions. On page 2 of his decision, the administrative law judge recounted Dr. Hussussian's medical restrictions assessed on December 5, 1996. While the administrative law judge's decision does not specifically state that he accepted these restrictions, it is inferred from his findings that he did. The commission also accepted Dr. Hussussian's medical restrictions. The employer's argument concerning the use of the wage the applicant was earning at the end of his employment is an equitable argument which questions the judgment exercised by the DVR in assessing the applicant's vocational circumstances. The commission cannot say in this case that the DVR's approval of the associate degree programs constituted an interpretation of the rehabilitation laws entirely outside the reasonable scope of interpretation and that it was thus a clear abuse of administrative power. Massachusetts Bonding Insurance Company v. Industrial Commission, 275 Wis. 505, 512, 82 N.W.2d 191 (1957).

The commission did agree with one argument made by respondents. When the applicant was injured in 1981, Wis. Stat. § 102.61 (1)(1981 - 82), provided:

"(1) He must undertake the course of instruction within 60 days from the date when he has sufficiently recovered from his injury to permit his so doing, or as soon thereafter as the officer or agency having charge of his instruction shall provide opportunity for his rehabilitation." (1)

The applicant returned to work for the employer early in 1982, after his 1981 work injury. As previously noted, he was laid off due to "an employe relation problem" from June 1983 until sometime in 1988, and did seek assistance from the DVR. Dr. Hussussian's clinic note dated June 19, 1986, recounts that the applicant is "being seen" by the DVR. Regarding this encounter with the DVR, the applicant testified:

"Q They were just trying to help you find a job?

A Yeah. They were trying to find my interest. That's what the testing was about, and they thought, you know, I could handle what I could do, yeah.

Q But then you discontinued that program?

A I believe I did or else-- No, I didn't. She decided that there really wasn't much she could do for me if I remember."

The applicant's DVR file from 1986 has been destroyed, but the commission finds the applicant's equivocal testimony to the effect that the DVR decided there wasn't much they could do for him to be incredible. The DVR showed no hesitation in certifying the applicant, first for a 4-year degree program, and then for consecutive associate degree programs in 1996. It is not credible that the DVR would not have suggested schooling to the applicant in 1986, when he was 10 years younger. Even assuming the DVR did not suggest schooling in 1986, it is not credible that this agency would have given up in helping the applicant to find new, suitable employment, had he maintained contact with the agency. Dr. Hussussian wrote in a clinic note dated March 4, 1991, that he had suggested the DVR to the applicant, but the applicant had tried this and "wasn't satisfied."

The credible inference drawn from this note is that the applicant abandoned the DVR in 1986 rather than that the DVR abandoned him. Accordingly, the evidence leads to the credible inference that the applicant did not adhere to the letter or the spirit of the requirement for timely pursuit of a vocational rehabilitation claim under Wis. Stat. § 102.61 (1).

The commission has also considered the fact that the applicant was given a higher permanent partial disability rating in 1991, and the question of whether that should be seen as having afforded him a new opportunity to obtain vocational rehabilitation relative to his 1981 work injury. The commission finds that the facts of this case allow no such new opportunity under Wis. Stat. § 102.61 (1).

On June 19, 1986, Dr. Hussussian indicated that the applicant could handle piece work or a small factory job which required lifting no greater than 15 to 25 pounds. On March 4, 1991, Dr. Hussussian indicated in his clinic note that he had not seen the applicant in two years, but that the applicant continued to have "off and on back difficulties" and the applicant wondered whether his disability should not be increased. Dr. Hussussian did increase the applicant's permanent partial disability from five percent to ten percent on December 16, 1991, due to chronic back problems. On December 5, 1996, Dr. Hussussian permanently restricted the applicant to 20 pounds lifting and avoidance of bending, pulling, and pushing to 25 percent of the time. While the difference in the applicant's restrictions given between 1986 and 1996 was minimal, there was a difference.

Nevertheless, the applicant forfeited his opportunity for vocational rehabilitation under Wis. Stat. § 102.61 (1), when he failed to make a reasonable effort to pursue such rehabilitation during his 1983 - 88 indefinite layoff. As previously found, the commission drew the credible inference that the applicant unreasonably abandoned his rehabilitation application with the DVR in 1986. He chose not to pursue vocational rehabilitation. It is inferred that at that time he chose to take his chances that he would be rehired by the employer at some future time, which he ultimately was. In the interim he accepted unskilled employment. It was only after he was faced with the probable severance/buyout option from the employer in 1996, that he chose the buyout and committed himself to the pursuit of a retraining program. In reality, the applicant's pursuit of retraining in 1996 was a voluntary career change rather than a circumstance caused by the effects of his work injury. He did not undertake a course of vocational rehabilitation within 60 days from the date he had sufficiently recovered from his 1981 injury to permit so doing, or as soon thereafter as he was provided opportunity for rehabilitation. While his functional abilities deteriorated to some extent between 1986 and 1996, that was a risk he took upon himself. It does not change the fact that he chose not to pursue vocational rehabilitation at a time when he had sufficiently recovered from his 1981 injury to permit so doing. Accordingly, the applicant is ineligible for vocational rehabilitation benefits, pursuant to Wis. Stat. § 102.61 (1).

NOW, THEREFORE, this

ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. The application for vocational rehabilitation benefits stemming from the 1981 work injury is dismissed.

Dated and mailed: March 5, 1999
hubatge.wrr : 185 : 3 ND § 5.39

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge, who indicated that he found the applicant to have been generally credible. However, the administrative law judge had no specific demeanor impressions of the applicant's testimony concerning his 1986 encounter with the DVR. The commission found the applicant's testimony to be equivocal at best with regard to whether he chose to discontinue pursuit of vocational rehabilitation at that time, or whether the DVR ". . . decided there really wasn't much [they] could do for me if I remember." As noted in the above findings, the commission inferred that the DVR would not have refused to continue helping the applicant either find suitable employment or a suitable retraining program in 1986, but ten years later have authorized two separate, lengthy educational retraining programs.

cc: ATTORNEY SCOTT W FRENCH
BECKER FRENCH & DEMATTHEW

ATTORNEY JAMES P REARDON
KASDORF LEWIS & SWIETLIK SC


Appealed to Circuit Court.  Affirmed August 25, 1999. Appealed to the Court of Appeals.  Affirmed, per curiam, September 19, 2000. Petition for Supreme Court review denied, March 6, 2001.

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Footnotes:

(1)( Back ) The same statute remains in effect today, except that it has been renumbered to Wis. Stat. § 102.61 (1r)(a), and "The employe" has been substituted for "He" at the beginning of the statute.