STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MICHAEL J SILVASI, Applicant
C D SMITH CONSTRUCTION INC, Employer
UNITED CONSTRUCTION CORP, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
AMERICAN ECONOMY INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1990050047
On February 18, 1999, Administrative Law Judge Roberta Arnold conducted a prehearing conference in this matter on behalf of the Division of Workers Compensation in the Department of Workforce Development. At the conclusion of the conference, ALJ Arnold ordered each insurer to pay (on a nonconceded basis) 50 percent of the vocational retraining benefits using their respective temporary total disability rates. The payments were ordered to begin January 20, 1999 and continue while the applicant's training continues until an expedited hearing is held,. On February 22, 1999, ALJ Arnold issued an order to that effect. Both employers and their respective insurers appealed.
After reviewing the materials in the case file and considering the positions of the parties as stated in their briefs, the commission sets aside ALJ Arnold's order and substitutes the following therefor:
ORDER
The ALJ's Order dated February 22, 1999, is modified to conform with the following and, as modified, is affirmed.
Within 10 days from the date of this Order, Wausau Underwriters Insurance Company and American Economy Insurance Company shall each pay the applicant, Michael J. Silvasi, One hundred eighty-nine dollars ($189.00) per week, as nonconceded vocational rehabilitation retraining benefits, as the benefits accrue each week to a maximum of forty weeks, effective January 20, 1999 and until an order is rendered by an administrative law judge following an expedited hearing.
Jurisdiction is reserved to issue further findings of fact, conclusions of law, and orders as warranted.
Dated and mailed April 13, 1999
silvasi.wpr : 101 : 6 ND § 5.40
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
MEMORANDUM OPINION
At issue on appeal is whether the ALJ properly ordered payment of the vocational rehabilitation retraining benefits pursuant to Wis. Stat. § 102.175(2). That finding is based on the ALJ's implicit conclusion that the applicant is entitled to vocational rehabilitation retraining benefits, so that the only issue was which employer is liable for them. (1)
C.D. Smith Construction makes two arguments: (a) that Wis. Stat. § 102.175 does not allow for the type of order made by the ALJ, given the existence of other issues; and (b) that the order violated its due process rights because it had only one month notice that the applicant had been approved for retraining, and because the notice of the prehearing conference did not indicate action might be taken under Wis. Stat. § 102.175. United Construction raises both of those points, and in addition argues that the vocational rehabilitation retraining issue cannot be decided until an ALJ or LIRC resolves the differences between the medical opinions of Drs. Jayaprakash, Levin and Gerol.
a. ALJ's authority under Wis. Stat. § 102.175(2).
Wisconsin Statute § 102.175(2) provides:
102.175(2) If after a hearing or a prehearing conference the department determines that an injured employe is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the department may order one or more parties to pay compensation in an amount, time and manner as determined by the department. If the department later determines that another party is liable for compensation, the department shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.
The department's interpretative footnote provides:
"82 This authorizes the department to order interim payments in order to relieve the hardship for an injured employe where the only issue is which party is responsible for payment."
The first question is whether the ALJ erred in applying Wis. Stat. § 102.175(2) given the existence of issues, other than which insurer is liable, for resolution at the expedited hearing in this case. The other issues include, most notably, whether the applicant is entitled to any additional permanent partial disability beyond the five percent paid by C.D. Smith Construction. Treating doctor Jayaprakash and IME Levin opine the applicant has sustained additional permanent disability; IME Gerol opines not.
The commission reads Wis. Stat. § 102.175(2) to allow an ALJ to order payment after a prehearing conference when he or she determines that the applicant is entitled to a particular type of compensation, and that there is no issue with respect to that type of compensation except which insurer is liable. Thus, an ALJ may order the payment of temporary disability prior to hearing under Wis. Stat. § 102.175(2) when it is clear that an injured worker has not yet plateaued from a work injury, even though the parties may dispute the extent of permanent disability later on. Likewise, if the applicant is entitled to vocational rehabilitation retraining benefits under Wis. Stat. § § 102.43(5) and 102.61, and the only issue with respect to the retraining benefits is which worker's compensation insurer should pay them, an order under Wis. Stat. § . 102.175 is appropriate despite the existence of a dispute about the amount of other forms of compensation. The commission also notes that Wis. Stat. § 102.175(2) provides that the ALJ determines whether other issues are present; the statute is not limited to situations where the parties stipulate that the only issue is which insurer is liable.
b. Eligibility for retraining at issue?
Is the only issue with respect to vocational rehabilitation retraining benefits which insurer is liable in this case? C.D. Smith Construction offers no evidence to contest the retraining claim. Indeed, its independent medical examiner agrees that the applicant sustained additional disability, and its vocational expert apparently holds vocational retraining out as a viable alternative. United Construction, however, argues that if Dr. Gerol is right and the applicant has no additional permanent disability beyond that already paid by C.D. Smith Construction, he may return to work as a construction laborer and should not be entitled to retraining.
However, the commission cannot agree. In August 1998, based on Dr. Jayaprakash's functional capacity evaluation, the Division of Vocational Rehabilitation (DVR) prepared an individualized written rehabilitation plan for the applicant for retraining in the field of "computer networking" at Milwaukee Area Technical College upon the obtaining of a GED. After obtaining his GED, the applicant began his coursework at MATC in January 1999. In other words, DVR has decided the applicant should be retrained.
The fact that DVR has approved the applicant's retraining is highly significant. Under Wis. Stat. § § 102.43(5) and 102.61(1), an injured worker is entitled to worker's compensation benefits for vocational rehabilitation retraining if he is entitled to and has received compensation under the Worker's Compensation Act and is entitled to and is receiving instruction under the federal vocational rehabilitation laws. In this case, the applicant has met both requirements.
The applicant has received substantial compensation for the 1990 injury. In addition, following a prehearing conference in October 1998, ALJ Arnold ordered the payment of temporary total disability on the applicant's re-application for hearing in April 1998. Dr. Levin opined on behalf of C.D. Smith Construction that the applicant sustained additional permanent disability. Dr. Gerol's report on behalf of United Construction reports that the applicant suffered a temporary aggravation of a preexisting condition while working for United Construction, which supports the payment of at least some temporary additional disability.
In addition, DVR found the applicant entitled to receive instruction under the vocational rehabilitation act when it issued its individualized vocational rehabilitation plan in August 1998. He began receiving instruction in January 1999.
Under these facts, the authority of the ALJ and this commission to deny compensation for vocational rehabilitation is extremely narrow. The supreme court has effectively held that neither an ALJ nor the commission may second- guess the DVR's decision to approve an injured worker for vocational rehabilitation. Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957). In that case, the injured worker was certified for retraining by DVR's predecessor agency, even though he had been gainfully employed since the time of his injury. Because he was certified, however, LIRC's predecessor (the Industrial Commission) awarded vocational rehabilitation benefits. Massachusetts Bonding appealed, essentially asking for a reversal of the finding that the worker was eligible to be retrained given his condition.
The court refused, focusing on the narrow scope of review of the Industrial Commission under Wis. Stat. § 102.61. The court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR. The court noted that the Industrial Commission had no power to review the acts of DVR-predecessor. The court held that the Industrial Commission must find that an injured worker receiving retraining authorized by the DVR-predecessor is entitled to it, unless the commission concluded that (a) highly material facts were withheld or misrepresented to the DVR-predecessor or (b) the DVR-predecessor's interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power. (2)
The commission cannot conclude highly material facts were withheld or misrepresented to DVR. Dr. Gerol's report, for example, had not yet been prepared when DVR approved the applicant for retraining. Nor can the commission conclude from Dr. Gerol's report that the applicant falsely represented his condition to DVR or Dr. Jayaprakash; certainly, United Construction does not make that argument.
Further, DVR's decision to approve retraining for the applicant was clearly not an abuse of administrative authority when it was made. Again, while DVR did not consider Dr. Gerol's subsequently prepared report, nothing in the record indicates it had the duty to withhold approval of the retraining until the employers submitted their expert medical opinions to counter Dr. Jayaprakash. Nor is there any evidence that the applicant could have returned to work with either C.D. Smith Construction or United Corporation based on the Dr. Jayaprakash's functional capacity evaluation that served as the basis for DVR's approval. Nor do the employers assert that they have evidence to suggest the applicant's work search was inadequate or that DVR violated its policies with regard to the work search.
Finally, the commission notes that the vocational report of Mr. Schutz on behalf of the applicant, and of Mr. Campbell on behalf of C.D. Smith Construction, support DVR's approval of retraining. In short, the commission sees no basis for denying DVR retraining (at least for the first 40 weeks), (3) and ALJ Arnold could appropriately determine that the only issue regarding compensation for vocational rehabilitation retraining was which insurer was liable.
c. Notice.
The commission has also considered the notice issue. C.D. Smith Construction asserts that the February 1999 prehearing conference was held less than one month after the parties had received notice that the applicant had been approved for a specific retraining program with DVR.
Of course, the applicant filed his WC hearing re-application claiming DVR retraining benefits in April 1998, ten months before ALJ Arnold's February 1999 order. DVR prepared the individualized written rehabilitation plain for retraining at MATC in computer networking by DVR in August 1998. A copy of the DVR plan was filed with the department and sent to opposing counsel in November 1998, three months before the prehearing. By this time, of course, the first expedited hearing had already been postponed.
On this record, the commission cannot conclude that the ALJ's action with respect to the retraining claim denied due process. While the applicant did not start schooling until January 1999, the employers were aware that retraining had been approved by November 1998. This would have been enough time to formulate a basis for denial of the claim, if denial could be supported under Massachusetts Bonding.
This leaves the objection that, even if the employers were aware that the applicant had been certified for retraining, they had no advance notice that ALJ Arnold intended to deal with the issue by a Wis. Stat. § 102.175 order after the prehearing conference. However, the applicant's attorney specifically asked for a Wis. Stat. § 102.175(2) order on the retraining issue by letter dated January 29, 1999, citing exigent circumstances. That letter was sent to opposing counsel, and shortly thereafter on February 9, 1999, the department sent out notice of the prehearing conference before ALJ Arnold.
The purpose of a prehearing conference is to clarify the issues. Wis. Stat. § 102.17(1)(b). The employers were also informed on the reverse of the prehearing notice that they should be ready to discuss the issues and clarify the matters in dispute. The statutes specifically grant ALJs the right to determine what is actually at issue following a prehearing conference, and order payment under Wis. Stat. § 102.175(2) based on that determination. The commission cannot conclude the ALJ reached an incorrect determination or took inappropriate action in this case.
The commission did, however, modify ALJ Arnold's interim order to provide that it would remain in effect beyond the date of the expedited hearing until the presiding ALJ issues an order. The commission also modified the order so that both insurers would pay at fifty percent of C.D. Smith's rate to reduce the potential for overpayment as a result of the interim payments. Further, the commission limited the payments under the interim order to forty weeks, on the conclusion that that would be the minimum the applicant is entitled to, assuming he continues to receive instruction. Depending upon the decision reached by the ALJ at the expedited hearing, of course, the applicant may be entitled to more than 40 weeks of benefits.
cc: ATTORNEY JAMES A PITTS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
ATTORNEY RONALD S APLIN
COYNE NIESS SCHULTZBECKER & BAUER SC
ATTORNEY JOHN P HIGGINS
STILP & COTTON
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Footnotes:
(1)( Back ) The commission notes initially that because ALJ Arnold's order awards compensation, the commission has jurisdiction for review under Wis. Stat. § 102.18(3) despite the essentially interlocutory character of the order. Indeed, the applicant does not raise the issue of jurisdiction on review.
(2)( Back ) Massachusetts Bonding, supra, at 275 Wis. 512.
(3)( Back ) Wis. Stat. §§ 102.43(5) was amended several years ago (but after the 1990 injury) to increase the base amount of retraining benefits to 80 weeks. The statutory changes do not over-rule Massachusetts Bonding, however. See, for example, footnote 189 in DWD's publication WKC-1-P (2/199) Worker's Compensation Act of Wisconsin with amendments to January 1998.