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

JENNIFER REEK, Applicant

UNITED PARCEL, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1990-040567

Respondents and the applicant each filed a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 1, 1998. Briefs were submitted by the parties. At issue are whether the applicant sustained a compensable back injury on June 7, 1990, and if so, nature and extent of disability and liability for medical expense.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is July 8, 1958, was employed with the employer as a delivery driver. On June 7, 1990, she experienced back pain radiating into her left leg as she lifted packages. On February 12, 1991, Dr. Howard An performed laminectomy/discectomy procedures at L4-5 and L5-S1. There was a dispute as to whether this surgery was attributable to the work injury of June 7, 1990, but on February 12, 1993, Administrative Law Judge R. A. Collins issued an interlocutory order finding that the surgery was attributable to that work injury. This order was not appealed.

Two subsequent hearings addressing the extent of disability and medical expense were held in March and September of 1994, and on October 6, 1994, a limited compromise was reached regarding medical expense and temporary total disability through September 29, 1994. Another hearing was held on September 6, 1996, regarding additional medical expense. ALJ Collins issued another order dated September 12, 1996, which awarded certain medical expenses and left the matter interlocutory with respect to medical expense, permanent disability, and vocational rehabilitation. The applicant petitioned for commission review because ALJ Collins did not pay all of the medical expenses claimed. On January 31, 1997, the commission unanimously awarded the disputed medical expenses to the applicant, citing Spencer v. ILHR Department, 55 Wis. 2d 525, 200 N.W.2d 611 (1972). The commission order recounted the fact that issue of causation had been decided in ALJ Collins' 1993 interlocutory order, and had never been appealed. On February 26, 1997, the commission modified its decision to specify that it was interlocutory with respect to "all issues," citing the possibility of future claims for medical expense as well as permanent disability and vocational retraining.

The latest hearing was held before ALJ William Phillips on August 4, 1998. Respondents attempted to resurrect the issue of causation, but ALJ Phillips recounted the procedural history and noted that the issue had been previously resolved. To make certain the issue was put to rest, he further found that upon review of the record made at all the hearings, he accepted the applicant's physicians' opinions of work causation. Respondents' primary argument on petition is that since the previous orders were interlocutory, the issue of causation can still be argued, and there was no work causation. This argument is based on the assertion that when an order has been left interlocutory with respect to certain issues, it must be interpreted as having been left interlocutory with respect to all issues. This is incorrect.

It is true that generally speaking, interlocutory orders of the department or the commission are not res judicata. But when an ultimate finding is made concerning an issue, and reservation is not specifically reserved with respect to such issue, res judicata does apply to that issue. (1)    In their 1993 and 1997 orders, ALJ Collins and the commission unambiguously found that the applicant had sustained a compensable back injury while working for the employer on June 7, 1990, and that this injury had resulted in surgery. The interlocutory aspect of these decisions was limited to extent of disability, medical expense, and retraining issues. The commission's use of the phrase "reserved on all issues" in its modified decision dated February 26, 1997, was inapt, given its intention to leave its decision interlocutory only with respect to the extent of disability, medical expense, and retraining claims. However, a fair reading of the commission's findings, as well as of ALJ Collins' findings, leaves no doubt that the issues of work causation and causation of surgery had been ultimately resolved in the applicant's favor. As did ALJ Phillips, the commission hereby reiterates its finding that the record leads to the conclusion that the applicant sustained a compensable back injury on June 7, 1990, which was the cause of the 1991 surgery and additional treatment claimed.

The commission adopts the findings of ALJ Phillips with regard to the permanent partial disability award of 14 percent to the whole body. The medical opinions of Dr. An and Dr. Gorelick are credible and support this finding. This entitles the applicant to 140 weeks of accrued compensation at the applicable rate of $131.00 per week, for a total of $18,340.00. A twenty percent attorney's fee and $412.64 in costs will be subtracted from this award.

The applicant petitioned with regard to a claim for reimbursement of $8,656.00 in medical expenses to two nonindustrial insurers, Blue Cross/Blue Shield and Meridian Resource Corporation. In consultation with the commission, the administrative law judge indicated that it was merely an oversight on his part not to have ordered reimbursement of these expenses. The expenses were reasonably required due to the effects of the work injury of June 7, 1990, and reimbursement will be ordered.

The next issue in dispute is the Department of Vocational Rehabilitation's (DVR) decision to authorize rehabilitation in the form of a masters degree in urban planning. The applicant obtained a bachelors degree in recreation and parks administration in 1980, but due to the effects of her work injury, she is unable to perform some of the key duties performed by individuals employed in that field. Also, most such jobs pay substantially less than the $33,000 per year she was earning from the employer when injured. She is also unable to return to her employment with the employer. In September 1991, the applicant obtained employment as a survey interviewer for the Southeastern Wisconsin Regional Planning Commission (SEWRPC). This began as a temporary position but evolved into permanent employment, with promotions to where the applicant is currently a planning specialist with duties including data analysis, mapping, planning, and research. She began this employment at $16,000 per year, but as of July 1998, was earning $22,000 per year. She continued this employment while going to school part-time to obtain her masters degree, which she received in December of 1997.

The administrative law judge properly found that it was not shown that the DVR's choice of the masters degree program was an entirely unreasonable interpretation of the rehabilitation law. Massachusetts Bonding Insurance Company v. Industrial Commission, 275 Wis. 505, 512, 82 N.W.2d 191 (1957). Respondents argue that it was unreasonable because the DVR allowed the applicant to go to school part-time, so that she could keep her job with SEWRPC. Where circumstances have justified it, the commission has previously allowed part-time schooling. See Guy Robert Ambler v. IBM & Liberty Mutual, WC Claim No. 84019814 (LIRC, May 28, 1997); Victoria Martinelli v. Allessee Orthodontic, WC Claim No. 91054736 (LIRC, March 19, 1997). Enabling an individual to retain a job which helps support her and provides experience in the field in which her schooling is directed is reasonable. Even respondents' vocational expert opined that if you accept the medical opinions of the applicant's physicians, the applicant was "appropriately referred" to the masters degree program in urban planning.

However, the administrative law judge awarded temporary total disability for the periods of schooling without considering the wages the applicant earned while working for SEWRPC. Wis. Stat. § 102.43 (6)(c) provides that such wages shall be considered in computing temporary disability. Based on the wages shown to have been earned by the applicant in respondent's Exhibit 2, the applicant was entitled to temporary partial disability for her periods of retraining as follows:

From September 30, 1994 to October 31, 1994, a period of four weeks and four days, at the applicable rate of $197.31 per week, yielding $920.78; from November 1, 1994 to December 23, 1994, a period of seven weeks and four days, at the applicable rate of $193.65 per week, yielding $1,484.65; from January 17, 1995 to May 13, 1995, a period of 16 weeks and five days, at the applicable rate of $193.65 per week, yielding $3,259.77; from September 5, 1995 to December 23, 1995, a period of 15 weeks and five days, at the applicable rate of $174.39 per week, yielding $2,761.17; from January 16, 1996 to March 30, 1996, a period of ten weeks and five days, at the applicable rate of $174.39 per week, yielding $1,889.22; from September 3, 1996 to December 21, 1996, a period of 15 weeks and five days, at the applicable rate of $162.54 per week, yielding $2,573.55; from January 13, 1997 to May 10, 1997, a period of 17 weeks, at the applicable rate of $162.54 per week, yielding $2,763.18; and from September 2, 1997 to December 20, 1997, a period of 15 weeks and five days, at the applicable rate of $130.93 per week, yielding $2,073.06. A twenty percent attorney's fee will also be subtracted from these amounts.

The final issue in dispute is whether the temporary disability rate should have been escalated each time the applicant started a new semester in a new year, while obtaining her masters degree. In the past, it was department policy to escalate certain vocational rehabilitation students' rates in conjunction with the annual raising of the temporary total disability rate, when a new semester of training began in a new year. (2) This policy was overruled by Wis. Stat. § 102.43 (7)(c)3., effective May 4, 1994. That statute provides that semester or other scheduled breaks in a course of training cannot result in "renewed periods" of training.

The administrative law judge appropriately accelerated the temporary total disability rate to the 1994 rate ($466 per week) when the applicant first started her retraining in September 1994. This was done in accordance with Wis. Stat. § 102.43 (7)(a). He did not escalate the rate during the applicant's schooling in 1995, 1996, or 1997. The applicant argues that he should have, arguing that the "triggering event" for application of Wis. Stat. § 102.47 (7)(c)3., should be seen as the commencement of the applicant's schooling in September 1994, and that none of the subsequent semester break periods should be seen as a "triggering event." The commission rejects this convoluted argument.

Wis. Stat. § 102.03 (4) provides that the right to compensation and amount of compensation shall in all cases be determined by the law in effect on the date of injury, except with regard to compensation as provided in Wis. Stat. § 102.43 (7), and another statute not relevant to our purposes. Pursuant to Wis. Stat. § 102.03 (4), the compensation rule of Wis. Stat. § 102.43 (7)(c)3., applies regardless of the date of injury. This conclusion is consistent with the holding of Chappy v. LIRC, 136 Wis. 2d 172, 401 N.W.2d 568 (1987). There, the court was concerned with the escalation of the temporary disability rate more than two years after the date of injury, but not during rehabilitation training. The court held that pursuant to Wis. Stat. § 102.03 (4), it was clear that the Legislature intended the escalation of the temporary disability rate to apply even though the date of injury was prior to the passage of the escalation statute (102.43 (7)(b)). By analogy, it is clear that the Legislature intended the non-escalation of the temporary disability rate for new semesters to apply even though the date of injury was prior to the passage of 102.43 (7)(c)3.

By stipulation of the parties, the applicant is also entitled to mileage expenses for vocational retraining in the amount of $4,141.78.

In addition to the reimbursements due Blue Cross/Blue Shield and Meridian Resource Corporation, reasonably required medical expenses are due as follows: to the applicant for reimbursement of medical and mileage expense the sum of $2,354.29; to MCW Physicians and Clinics the sum of $319.04; and to Pro Active Health Care the sum of $455.00.

Because the applicant may require additional medical treatment and may be entitled to other benefits pursuant to Chapter 102, jurisdiction will be reserved for such further findings and orders as may be warranted.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant as compensation for temporary partial disability and permanent partial disability the total amount of twenty-eight thousand four hundred thirty- nine dollars and sixty-six cents ($28,439.66); to applicant's attorney, Ahmed J. Quereshi, fees in the amount of seven thousand two hundred thirteen dollars and eight cents ($7,213.08), and costs in the amount of four hundred twelve dollars and sixty-four cents ($412.64); to the applicant as compensation for mileage expense for vocational retaining the sum of four thousand one hundred forty-one dollars and seventy-eight cents ($4,141.78); to the applicant as reimbursement for medical mileage expense the sum of two thousand three hundred fifty-four dollars and twenty-nine cents ($2,354.29); to MCW Physicians and Clinics the sum of three hundred fourteen dollars and four cents ($314.04); to Pro Active Health Care the sum of four hundred fifty-five dollars ($455.00); to Blue Cross and Blue Shield United of Wisconsin the sum of four thousand four hundred seventy-three dollars and thirty cents ($4,473.30); and to Meridian Resource Corporation the sum of four thousand one hundred eighty-two dollars and seventy cents ($4,182.70).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed May 5, 1999
reekjen.wrr : 185 : 1 ND § 5.39, § 8.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The administrative law judge's findings were reversed only with respect to the reimbursement of the nonindustrial insurers, and with respect to the offset of wages earned during the applicant's part-time vocational retraining. These reversals were made as matters of law and did not involve any disagreements with the administrative law judge regarding credibility or demeanor impressions of the witnesses.

cc: ATTORNEY AHMED J QUERESHI
CRIVELLO CARLSON MENTKOWSKI & STEVES SC

ATTORNEY DAVID L. STYER
KASDORF LEWIS & SWIETLIK SC

Appealed to Circuit Court.

[ Search Decisions ] - [ LIRC WC Decisions - Main Index ] - [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) This rule is consistent with the fact that future medical expenses not addressed in a decision remain an open issue (see Lisney v. LIRC, 172 Wis. 2d 499, 493 N.W.2d 14 (1992)); and with the fact that unaddressed or overlooked occupational disease claims also remain open (see Wis. Stat. § 102.18(1)(b) and Wis. Stat. § 102.18(6)).

(2)( Back ) This was pursuant to Wis. Stat. § 102.43 (7)(a), which provides that when an employe has a "renewed period" of temporary disability commencing more than two years after the date of injury, and has worked for at least ten days preceding the "renewed period," the temporary disability rate is escalated to the current rate.