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


CHRISTINA FITZGERALD, Applicant

KOHLER CORP, Employer

KOHLER CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994055533


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 June 9, 1999
fitzgch.wsd : 175 : 5  ND � 5.39 � 8.22

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant is eligible for DVR retraining pursuant to Wis. Stat. � 102.61. The employer contends that the applicant failed to meet her burden of proof to establish that she was entitled to vocational rehabilitation benefits. However, the evidence indicates that the applicant was laid off with her restrictions due to her work injury in July 1996 and that she contacted three persons with the employer concerning other work available and that there was no other work at that time. The applicant also presented telephone records in evidence that she had made several contacts with the employer during the summer and fall of 1996 inquiring about other work available and that she was told that there was no work available, and she subsequently received a letter dated July 9, 1997 which put her on a permanent layoff and terminated her employment. The applicant underwent a vocational assessment which found that the applicant's academic achievement testing was excellent and that all academic measures which were assigned resulted in strength being noted, with the exception being mathematics, and the applicant's testing also found strong language arts abilities. The vocational assessment indicated that the applicant's testing was considered to be excellent and suggests that she would have little difficulty with printed information or reading material typically found within a community or technical college or four-year university.

In addition, Ms. Baumgart, the applicant's vocational counselor testified that she had been informed that the applicant had been put on an indefinite layoff with the employer and the applicant had made several contacts with the employer but that no work was available, and that the applicant had made a consistent work search since her indefinite layoff in July 1996. The commission credits the applicant's testimony that following her indefinite layoff in July 1996 that the employer did not have any work available for her and that she made several attempts to contact the employer over a period of several months to find out if work was available, and that she was never offered work prior to being certified for retraining in February 1997. The applicant informed the DVR of her work search and her layoff in her history and conversations with Ms. Baumgart and the commission does not find that the DVR abused its discretion in failing to contact the employer about other work available at that time.

In addition, Ms. Baumgart contacted the employer on November 20, 1996 by letter informing the employer of the applicant's claim for DVR retraining benefits but the employer did not offer the applicant any work at that time. In addition, the administrative law judge appropriately noted that the employer did not notify the applicant on her layoff that she had the potential eligibility to receive rehabilitation services pursuant to the administrative rule and that this notice triggered the process by which the employer is kept informed of the applicant's ongoing DVR retraining process.

The employer also contended that the applicant had been certified for retraining which would enhance her preinjury earning capacity. The applicant admitted that she had only earned a high school degree and had a 1.7 grade point average while in high school, and the evidence indicated that she had worked in low level service positions such as cashier or entry level production or assembly work prior to her injury. However, the applicant testified that since leaving high school her intention had been to pursue further education and that she had begun working in order to obtain life experiences. In addition, the applicant's vocational assessment in October 1996 found that her academic achievement testing was excellent and all academic measures resulted in strength except for mathematics, and that her verbal and reading comprehension scores were strong and that she would have little difficulty with printed information or reading material typically found within a university or technical college. Given the applicant's young age at the time of her injury and given the findings of her vocational assessment the commission does not find that the DVR abused its discretion in certifying the applicant for retraining toward a Bachelor's degree in counseling or psychology, or that it would improve her preinjury earning capacity. Clearly, the applicant has strong academic and reading capabilities that were identified in the vocational assessment which had been present prior to the time that she left high school despite her rather low grade point average at the time of graduation. The applicant has demonstrated that she is able to handle her course work in the retraining program in a successful manner maintaining a 2.5 grade point average.

The employer also contends that it had been denied due process by the fact that the administrative law judge was not paying attention but was reading a newspaper during the employer's cross-examination of the applicant. The administrative law judge did admit to glancing at the newspaper while the employer's attorney was cross-examining the applicant concerning her job search activities. However, the administrative law judge specifically stated that all he did was take his briefcase a foot closer and looked at the headline and as soon as he did that within a second the employer's attorney had objected. The employer's attorney did not object to the administrative law judge's explanation of what he had done or indicate that he thought the administrative law judge had been distracted for a longer time than the administrative law judge had described. Under the circumstances, a review of the transcript does not indicate that the administrative law judge engaged in any long term reading of the newspaper during the cross-examination or at any other time during the hearing. Clearly it is preferable that the administrative law judge pay attention during the testimony presented at the hearing, however, under the circumstances presented in this case the commission does not find that the administrative law judge's actions resulted in a violation of due process or that a remand for a rehearing is warranted. The employer's attorney did not make any offer of proof that the administrative law judge missed any critical information while glancing at the newspaper that would have led to a different result in this case.

Based on the applicant's testimony as well as the testimony of Ms. Baumgart and the findings of the applicant's vocational assessment the evidence was sufficient to establish that the applicant was entitled to vocational rehabilitation benefit retraining as certified by the DVR in February 1997.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY PAUL H TEN PAS
KOHLER CORP


Appealed to Circuit Court.  Affirmed February 11, 2000.

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