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


MILO L WOLF, Applicant

DEHLING VOIGT INC, Employer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996044582


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 April 13, 1999
wolfmi.wsd : 101 : 3

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant contends he sustained permanent disability as a result of a back injury occurring when he lifted an 85-pound bucket of concrete in the performance of his duties as a construction worker. The employer and insurer (collectively, the respondent) concede a work injury, but assert that it caused only temporary disability. The ALJ found the work injury caused permanent partial disability on a functional basis as five percent compared to permanent total disability, and a loss of earning capacity at 18 percent. The respondent appeals.

a. Functional PPD.

With respect to the functional permanent partial disability, the respondent points out that Dr. Turner believed the applicant would have plateaued with no permanent disability by December 1, 1996. The employer also points out that Dr. Major opined the applicant in his final report could return to his old job and do the same kind of work, and had no permanent disability. The respondent then suggests that the ALJ improperly failed to assign the reports of medical doctors Turner and Major over the contrary opinion of chiropractor Perdziak.

However, the commission cannot agree. First, the commission has no policy of preferring opinions of medical doctors over those of doctors of chiropractic. Indeed, such a preference would seem to run contrary to Wis. Stat. § 102.17 (1)(d), under which the legislature has specifically provided that chiropractors are competent to give expert opinions on causation and extent of disability.

More importantly, medical doctor Turner expressly opined after his November examination the applicant's problems were caused by the work injury aggravating his pre-existing condition beyond normal progression. Further, Dr. Turner reported that the applicant would be subject to restrictions against repetitive and excessive neck movement upon reaching a healing plateau. Exhibit 2, page 5. In addition, after examining the applicant, Dr. Major opined he could work subject to "some limitations as far as the amount that he lifts, bends, and carries." Exhibit 1, report dated February 11, 1997. Neither medical doctor associated either the continuing symptoms or the work restrictions to the applicant's theretofore non-symptomatic pre-existing condition.

True, Dr. Major did state in March 1997 that the applicant could return to his former construction duties and had no permanent disability. However, Dr. Major did not reconcile this opinion with the February 1997 limitations on lifting, bending, and carrying. Dr. Major did not re-examine the applicant prior to giving the March 1997 opinion. The simple passage of one month's time does not explain the apparent change in opinion; in February 1997, Dr. Major opined the applicant had had ample time to heal, yet still conditioned his return to work upon lifting, bending and carrying restrictions.

IME Turner's report also indicates the applicant had continuing disability when he last examined him. Though Dr. Turner expected him to reach a plateau without disability on December 1, 1996, the doctor did not re-examine him to be certain. Further, undercutting his prognosis of a full recovery, Dr. Turner opined that the applicant would need future work restrictions. Given the fact that IME Turner described the pre-existing degenerative condition as non-symptomatic, one must assume the source of the continuing work restrictions would be the work injury.

In sum, the commission finds the opinion of Dr. Perdziak most credible with respect to causation and extent of disability.

b. LOEC.

This leads to the question of the applicant's loss of earning capacity given the work restrictions imposed. The commission acknowledges that the applicant's vocational expert, Ms. Prall, based her report on the applicant's circumstances before he obtained work as a truck driver. However, the award for loss of earning capacity is meant to compensate lost earning capacity, not simply wage loss based on actual employment after a work injury. At most, Ms. Prall's report may be criticized for failing to include truck driving as a possible post-injury job, though the record indicates the applicant was not trained as a truck driver when she issued her report. However, Mr. Modder did not include truck driving as a possible post-injury job either (see Modder report, pages 11 and 12). Rather, Mr. Modder noted the applicant was able to get truck driving work only after his own rehabilitative efforts. Thus, rather than discarding Ms. Prall's report altogether, the ALJ acted appropriately rating loss of earning capacity at the low end of the range she set.

In addition, the commission notes that the applicant has little education, few transferable skills from pre-injury employment, and at age 42 is no longer a younger worker. Losing the ability to do heavy work and medium work given these factors causes more than the five percent loss of his earning capacity that Mr. Modder estimated. After considering the record of this case in light of the factors under Wis. Admin. Code § DWD 80.34, the commission finds the ALJ's loss of earning capacity award to be quite reasonable, and adopts it.


cc: ATTORNEY GREGORY J STACKER
HICKMANN & STACKER SC

ATTORNEY RICHARD T MUELLER
MUELLER GOSS & POSSI SC


Appealed to Circuit Court. Affirmed January 5, 2000.

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