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

KATRINA BAKER-DRAYTON, Applicant

ST ANNES HOME FOR THE ELDERLY, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995-038417

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Applicant sustained a low back injury on or about April 8, 1995, while performing certified nursing assistant duties for the employer, Saint Anne's Home for the Elderly. She was treated by Dr. Lincer who diagnosed an L5-S1 disc herniation. (1) The applicant was released to return to work on April 12, 1995, with temporary light-duty restrictions. Applicant returned to work as a certified nursing assistant. The employer would post a weekly assignment based on the applicant's restrictions that the applicant would obtain before working. On May 9, the applicant spoke to her supervisor, Ms. Meyer, about her concern that the work was beyond her restrictions. Ms. Meyer indicated she was too busy to discuss the matter at that time. The next day was the applicant's scheduled day off. She reported for work just after 6:00 a.m. on May 11, 1995. Her weekly assignment was not posted. She asked the night supervisor if she had a new light duty assignment sheet. The supervisor said "no'" and told the applicant that administrative workers arrived at 8:00 a.m. The applicant told the supervisor she was leaving and would call later. The employe called the employer later that morning and advised the scheduler she had left because there was no assigned schedule. The scheduler indicated the applicant made a big mistake by leaving. On May 15, 1995, Saint Anne's terminated her for walking off the job, attendance problems and not attending physical therapy.

Applicant continued to treat with Dr. Lincer in the summer and fall of 1995. In a 16-B dated January 1, 1997, Exhibit B, Dr. Lincer indicated that the applicant could do limited work June 6, 1995 to June 26, 1995, July 10, 1995 to July 17, 1995, and August 7, 1995 until September 11, 1995. (2) Dr. Lincer indicated she could do full duty from July 17, 1995 to August 7, 1995 and September 12, 1995. She had been released to full- duty on September 14, 1995. Dr. Lincer indicated she was to be off work from June 26 through July 10, 1995.

On November 21, 1995, Dr. Lincer indicated applicant was feeling good, had rare occasional back pain and no longer had radicular symptoms. Dr. Lincer assessed three percent PPD based on the applicant's work injury and discharged her from his care. Applicant did not treat for her back problem between November of 1995 and August of 1996.

In October of 1995 applicant worked at a Firstar Bank, as a processing clerk. The position did require some lifting. That employment ended in February of 1996. The applicant began working for a pharmaceutical company, Capitol Returns, on April 30, 1996, again as a processing clerk. Her job involved lifting five to 10 pounds frequently and occasionally up to approximately 27 pounds. In September of 1996, the applicant indicated to Dr. Gerard that she was having difficulty with the lifting requirements of her position at Capitol Returns. In a letter dated September 4, 1996, Dr. Gerard suggested that a job change would be appropriate. She terminated her position on September 5, 1996.

On September 23, 1996, the applicant returned to Dr. Lincer with complaints of increased low back pain radiating to her right lower extremities with increased numbness. The applicant indicated that her back had felt good for a while but had not felt good since February 1996. She denied any new injury or trauma. An EMG of October 1, 1996 revealed right L-5 radiculopathy, mild, acute, subacute, and chronic changes. A MRI of her back revealed herniated nucleus pulposus, slightly eccentric to the right L-5/S-1 level. In an October 10, 1996, note Dr. Lincer stated "With similar findings on EMG and MRI scans now compared to before, it appears that her symptoms represent ongoing lumbar disc pathology and nerve root irritation." She was referred for an epidural steroid injection and received two such injections in October of 1996. The first injection increased her numbness and tingling. She had no relief of pain from the second injection. On October 29, 1996, Dr. Lincer upgraded her work restrictions to 40 pounds.

Dr. Lincer's 16-B indicated that she was to be off work from October 16, 1996 to October 18, 1996, and October 25 to October 27, 1996. She could do limited work from October 19, 1996 to October 25, 1996. Dr. Lincer assessed three percent whole person disability based on the disc herniation L5-S1 secondary to the April of 1995 injury. Dr. Lincer indicated there was no additional disability. He could not express an opinion as to the applicant's prognosis as she did not follow up with treatment. He likewise gave no opinion as to work restrictions.

The applicant saw Dr. Baruah for a second opinion on November 8, 1996. Upon physical exam there was noted tenderness of the L-5/S-1 spine, palpable muscle spasms in the right L5/S1 paraspinal area, with positive straight leg raises on the right side at 75 degrees. Dr. Baruah's impression was of L5/S1 radicular pain. Participation in a pain institute was recommended and medication prescribed.

Dr. Baruah completed a WC-16-B (Exhibit C), which indicated that the applicant could return to work with a 15-pound lifting restriction. The healing plateau was reached on January 6, 1997. Dr. Baruah assessed a permanent restriction of 15 pounds lifting, with limited repetitive actions such as bending and squatting, and pushing/pulling was not to exceed 50 pounds. Permanency was assessed at three percent as a result of the April 1995 back injury. Dr. Baruah indicated that future treatment would not be necessary. Dr. Baruah also indicated that the applicant did not have any permanent disability prior to the accident. This is an error and Dr. Baruah was aware of Dr. Lincer's prior assessment of three percent PPD by virtue of Dr. Baruah's November 8, 1996 note.

IME Dr. Zeman examined the applicant on March 12, 1997, and his report was introduced at hearing as Exhibit 1. Dr. Zeman agreed that applicant had an L5- S1 herniation referable to her period of employment with St. Anne's, i.e. onset around April 8, 1995, and which arose directly out of her employment with St. Anne's. Dr. Zeman found a healing plateau on September 12, 1995. Dr. Zeman found that applicant sustained a 5% PPD as a result of the injury and that no further treatment was necessary. He set a maximum lift at 40 pounds.

Dr. Zeman also found that the onset of pain reported beginning in August of 1996 was a new injury in the nature of an aggravation, acceleration and precipitation of her pre-existing herniated nucleus pulposus at L5-S1 with right L5 radiculopathy beyond normal progression. Dr. Zeman opined that this new injury was the result of her employment with Capitol Returns. Dr. Zeman found no evidence of increased PPD resulting from the August 1996 injury. Dr. Zeman filed a supplemental report on October 17, 1997, after reviewing the imaging studies of June 9, 1995 and October 2, 1996. IME Zeman opined that the August of 1996 injury was a temporary aggravation that did not result in any structural change nor did it increase permanent disability or require a change in work restrictions. (3) Dr. Zeman indicated that he expected temporary disability "along with time required for diagnostic measures and treatment through October of 1996 would be appropriate." Dr. Zeman could not state when applicant reached a healing plateau from the August 1996 injury.

1. TTD

The applicant sought three discrete periods of TTD in 1995. The first is from May 11 to June 24, the second from July 10 to July 17, and the third from August 7 to September 11, 1995. St. Anne's paid TTD from April 9, 1995, through April 11, 1995, at which time she returned to work. St. Anne's also paid TTD from June 26, through July 10, 1995, which is the period after the separation during which Dr. Lincer removed her from work. The ALJ denied TTD for periods in 1995 stating "it appears that had the applicant not been terminated for cause, the respondents would have provided work for her within her restrictions. It is for that reason, and lack of clear medical support for several of the periods claimed, that I do not award temporary disability for those periods."

In general, an employer is liable for temporary disability until an injured worker has reached an end of healing; assuming the worker sustains an actual wage loss. An injured worker's injury is temporary, i.e. still healing, until "there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence." Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

A return to work does not necessarily mean a worker has reached an end of healing, and a doctor's release to work, particularly when the release is restricted, does not mean that healing is completed. The end of healing, or the healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. However, if a worker in fact returns to work while she is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wis. Stat. � 102.43(2). The burden of providing such work is on the employer under Wis. Admin. Code � DWD 80.47 which provides:

"DWD 80.47 Medical release of employe for restricted work in the healing period. Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period."

Wis. Admin. Code � DWD 80.47 does not directly address the question of what happens if an employer offers work to an injured worker, but the worker refuses it. One may infer from the rule that refusing suitable work will have consequences, as TTD is payable "unless" such work is offered. The commission has issued a number of decisions on the subject, and the related subject of quitting work.

In Rand v. Ampco Metal, Inc., WC Claim No. 93010320 (LIRC Apr. 5, 1995), the employe was laid off because the employer had no one-handed work available. When the employer's workers went on strike, the employe was offered one-handed work. The employe refused the work because he did not wish to cross the picket line. (4) The employe's doctor on two separate occasions after the job refusal revoked the release to one-handed work. The commission denied TTD from the time the employe refused the work offer, except for the two occasions when the employe was unable to perform the previously offered one-handed work.

In Melvin v. Belt Line, Inc., WC Claim Nos. 93044101, 94037949 (LIRC Feb. 8, 1995) the employer provided the employe work within his restrictions. The employe quit work due to a personality conflict with his supervisor. The commission denied TTD for the period from the employe's last day of work until he had surgery for his work-related back injury when his doctor indicated he was totally disabled. The commission reasoned that the employe could have continued working had he not quit.

The aforementioned decisions did not address situations where an employe returns to work while in a healing period and is discharged by the employer. That issue was addressed by the Wisconsin Supreme Court in Brakebush Brothers Inc. v. LIRC, 210 Wis. 2d 624 (1997). In Brakebush, the applicant was off work due to his work injury. He represented to the employer that he was at home taking it easy. The employer discovered the employe had been playing pool and bow hunting. The employer discharged the employe. Applicant's doctor had allowed applicant to do anything that did not hurt. Further, even after learning of the applicant's activities, the applicant's doctor did not change his opinion on the applicant's date of reaching a healing plateau. The employer argued that the employe should be ineligible for TTD because he was not disabled and because he was discharged for misconduct. The commission declined to deny TTD during the healing period. The Supreme Court affirmed noting that what was important was that applicant was in fact still healing. In concluding that LIRC could not deny TTD simply because of the employe's misrepresentations concerning his medical condition, the Court noted Wisconsin's history of providing benefits despite misconduct. The court noted the commission's conclusion that the WCA contains no provision for terminating compensation when employment is terminated so long as the employe is still disabled. The court quoted the commission's memorandum opinion:

"[W]hile the employer appears to have had sound reasons for terminating the applicant, this does not relieve the employer/insurance carrier from the obligation to pay temporary total disability benefits for the period in question. . . . To the employer and its insurance carrier, it may seem inequitable that the applicant is able to receive temporary disability benefits after having been discharged for good cause. However, worker's compensation is a statutory program and there is no provision in Chapter 102 which would allow the cutoff of temporary disability benefits as long as the work injury continues to cause disability . . . The only medical evidence of record leads to the conclusion that up until April 6, 1992, the applicant continued to be temporarily totally disabled to the effects of the work injury."

After quoting the commission's decision the court stated "We agree with LIRC's interpretation of the Act. Wisconsin has a long history of providing benefits to employees despite their misconduct." The Court further stated:

"[A]n injured employee who has been terminated is nonetheless entitled to disability benefits because the employee continues to be limited by the work-related injury. It is the injury, not the termination, that is the cause of the employee's economic loss. Accordingly, Engel's misrepresentations are of no moment to us unless they are relevant to the extent of his injury. We have concluded that they are not. 2"

2 An unemployment compensation proceeding is the proper forum for a discussion of employee behavior. On February 6, 1992, the Unemployment Compensation Division concluded that Engel was ineligible for unemployment benefits because he was terminated for cause, i.e., for his misrepresentations to his employer about his activities while on disability leave.

The Court concluded:

"The purpose of worker's compensation disability benefits is to compensate employees who have lost the ability to work, temporarily or permanently, due to a work-related injury, regardless of whether they are good or bad employees. It contravenes public policy to allow an employer to avoid paying disability benefits to a disabled employee without evidence that the employee's activities are inconsistent with his or her injury. Without such a requirement, the law would leave employees suffering from legitimate work-related injuries in grave danger of being left both unemployed and unable to work due to their work-related disability, without compensation and potentially with a lower earning capacity.

In sum, we hold that LIRC's finding that Engel was entitled to temporary disability benefits until April 6, 1992, for his work-related injury is sustained by credible and substantial evidence, and Brakebush failed to submit adequate proof rebutting the extent of Engel's injury. We further hold that the Worker's Compensation Act does not provide an exception to an employer's liability when an employee is terminated for misrepresentations relating to his or her medical condition. Accordingly, we affirm."

Since Brakebush, the commission has addressed the consequences of an employe being discharged during the healing period.

In Kowalchuk v. Sunny Slope Grading Inc., WC Claim No. 93053333 (LIRC July 29, 1998), the employe had returned to work for the employer following his work injury with a restriction on the number of hours he could work. He was later discharged for attendance violations. A day after his discharge he told his doctor, whom he had not seen for months, that the employer was making him work excess hours and his back was hurting. His doctor initially removed him from work but later released him to work when medical tests found no abnormality. The commission found that the employe had invented the re-injury claim to justify his failure to report for work for personal reasons. The commission found that the employer was not liable for temporary disability for treatment after the employe's discharge. This reflects a defense that was available to employers before and remains available after Brakebush-rebutting the employe's case that he was disabled due to a work injury.

In Wellsandt v. Chippewa County, WC Claim No. 93050745 (LIRC Nov. 28, 1997), the employe had returned to restricted work following an injury. The employe was discharged for failing to replace the oil in a sheriff's deputy's car while working under a last-chance agreement. The employer argued that the fact that the employe had returned to work distinguished the case from Brakebush and that the employe's economic loss was clearly from the termination not the work injury. The commission stated:

"On this basis, the respondent argues that this case is distinguishable from Brakebush, at least for the limited period after the discharge that the applicant was able to work under the same restrictions as he had while working on light duty prior to the discharge. Certainly, there is support for reducing or denying TTD in the analogous situation of a refusal of suitable light duty work, for reasons unrelated to the work injury, during a healing period. See Neal & Danas Workers Compensation Handbook � 5.10 (4th ed. 1997). Such an exception to Brakebush in this case must rest on the conclusion that the applicant's conduct with respect to the oil change was the analytic equivalent of refusing an offer of work. [Footnote omitted]

The commission declines to deny TTD on that basis in this case. First, the commission cannot conclude that the applicant's failure to properly change the oil in the deputy's vehicle may be viewed as the analytic equivalent of a refusal of an offer of work within the applicant's restrictions, despite the fact the applicant was working under a last chance agreement. In other words, even if the commission were to fashion an exception to the supreme court's holding in Brakebush for certain misconduct discharges amounting to refusals of suitable work during a healing period, the commission cannot conclude the discharge in this case fits that hypothetical standard.

Moreover, the holdings of both supreme court and court of appeals in Brakebush may be read to state the commission lacks the authority to eliminate TTD based on misconduct discharges, regardless of the circumstances. Indeed, the court of appeals in Brakebush ended its decision with the flat statement "compensation continues during the healing period even if the employee is fired for cause." Brakebush Brothers, Inc., v. LIRC, no. 95-2586, slip op. at 4 (Wis. Ct. App. April 25, 1996). Moreover, Wis. Admin. Code � 80.47 states that compensation for TTD continues during a healing period even if an applicant can return to light duty work, unless the light duty work is furnished to the applicant. Certainly, the cases cited in the supreme court's decision supports its conclusion that the workers compensation law contains no provision for terminating compensation so long as worker remains disabled, and that Wisconsin has a long history of providing benefits to workers despite their misconduct. Brakebush, at 210 Wis. 2d 635-38."

In Olson v. Johnson Controls Inc., WC Claim No. 1997-035080 (LIRC Nov. 30, 1998), the employe was off work due to a back injury. An IME indicated the employe could return to a light clerical position with certain restrictions, including a ten-pound lifting restriction. The employer offered clerical and light assembly work. The applicant consulted her doctor representing, among other things, that she could not drive and that the employer did not have sedentary work. Applicant's doctor found she was unable to work "in light of the requirements of her job at this point." Later, applicant's doctor refused to release the applicant to work, despite numerous requests to do so from the employer, because due to pain she was unable to drive. Thereafter, the applicant was seen driving a riding lawn mower for at least an hour and twenty minutes. The next day applicant again told her doctor she could not drive. The IME found that the employe's ability to mow the lawn showed she was able to work. The commission found that the employe did not procure her doctor's advice to stay off work in good faith. That is, the commission essentially found that the employe misrepresented her physical condition to her doctor. The commission further found that the employe misrepresented to her doctor that the employer did not have sedentary work. The commission found that the employe's right to TTD ended based on a determination that applicant's reliance on her treating doctor's work restrictions was not in good faith and based on employer's offer of work within the IME's work restrictions.

Finally, in Rea v. Kenosha Beef International, WC Claim No. 1990-070904 (LIRC May 5, 1999), the employe, an undocumented alien, was performing light- duty work following a work injury. He was unable to work at the end of his employment because of his immigration status. After his employment ended he was released to perform full duties. The employer argued that the employe lost his employment with the employer due to his immigration status, and therefore temporary disability payments were not due. The commission acknowledged that the applicant was unable to obtain employment during the time he was released to perform light duty work due to his immigration status. However, the commission also found that the employe was functionally disabled due to the effects of the work injury until released with no restrictions, and that his disability also affected his ability to obtain employment. The commission noted the Court's decision in Brakebush and stated:

"Neither is there a provision in the Act which provides for the withholding of temporary disability benefits to a disabled employe whose ability to work is compromised by an illegal alien status; nor, from an employer's perspective, is there any practical difference between an individual who has been terminated for good cause and one who has been terminated due to an illegal alien status. Neither of such individuals will be rehired by the employer."

The commission awards TTD for all periods claimed by the applicant in 1995. The applicant had been returned to restricted duty. The applicant lost her employment. She was still within her healing period. This is not a case where the employer established that the employe misrepresented her physical condition or abilities ala Kowalchuk or Olson. This case is most similar to Wellsandt and the commission believes the same question should apply: Were the employe's actions the analytic equivalent of a refusal of an offer of work. Like Wellsandt, the commission finds they were not. The employe was not discharged for leaving work on her last day, but for leaving work and her prior attendance violations. Whether in an Unemployment Insurance forum her actions would constitute a voluntary termination is not the issue here. (5)

The respondent St. Anne's argues that it is not fair to award the applicant TTD as it had work available for the applicant but because of her actions she was unemployed. True, the employer had work and, putting aside the fact that it was ultimately the employer's decision to end the employment, the fact is the applicant was still healing and was restricted from working in positions she could have held with this employer, and other employers, but for the injury. Further, the benefits involved are temporary. The employe's right to benefits will end with the end of healing or if she finds work with this or another employer at a certain wage level. Finally, such arguments should be addressed to the Worker's Compensation Advisory Council and/or the Legislature, not the commission, particularly in light of Brakebush.

Dr. Zeman did not opine that the applicant reached a healing plateau until September 12, 1995, which is after the periods of TTD in 1995 sought by the applicant in this case. There is no medical evidence that she reached a healing plateau prior to September 12, 1995.

The ALJ awarded TTD for the time applicant was off work in 1996 due to the aggravation of her work injury, until she ceased treating with Dr. Lincer. The ALJ reasoned that by that time she had worked for another employer and there was clear medical support for that period of disability. The ALJ further reasoned that it was not unusual for an employe not to remain with the same employer and a year and one-half had passed since the original injury. The commission agrees that TTD should resume both because of the re-injury and new limitations and because it should not have been cut-off previously. Applicant was again submitting to treatment, had sustained an aggravation of her prior injury, and was subject to new and changing restrictions. Further, at some point it becomes too far removed from the separation to argue that but for the termination the employer would have been providing the applicant with work. The commission believes that a change in the applicant's physical condition, related to the original work injury, which necessitates treatment and additional restrictions, justifies resuming the applicant's entitlement to TTD benefits, whether or not TTD should have been ended before September of 1995.

The applicant also seeks TTD from September 6, 1996 to January 6, 1997. The ALJ found that applicant reached a healing plateau when she stopped seeing Dr. Lincer in October of 1996. The commission disagrees based on the medical evidence. Dr. Baruah indicated that the applicant reached a plateau in healing on January 6, 1997. Dr. Lincer had not set a healing plateau. (6) Further, IME Dr. Zeman indicated in his supplemental report of October 31, 1997, that he was not able to state when the applicant reached a healing plateau for the August 1996 aggravation. Returning to work without restrictions is not the same as reaching a healing plateau. Returning to work does not mean that applicant is no longer in need of, or applicant in the future will not need, medical treatment for the effects of the injury. Therefore, the commission finds that the applicant reached a healing plateau on January 6, 1997, as indicated by Dr. Baruah. Finally, the commission finds that Dr. Gerard's September 4, 1996, letter is insufficient medical support for TTD. Rather, per Dr. Lincer, applicant's period of TTD in 1996 began on October 16.

2. Medical Expenses

The ALJ denied payment of medical expenses for treatment by Dr. Baruah on the grounds that it was not reasonable or necessary. The ALJ indicated that Dr. Lincer had released applicant to work with restrictions in October of 1996 and that Dr. Baruah's treatment did not improve applicant's condition in any way. First, as previously indicated, there is no medical evidence that the applicant had reached a healing plateau. Second, Dr. Lincer released applicant to work in October of 1996, with restrictions, which does not establish an end of healing. Third, the employer is liable for all the treatment rendered in good faith to treat the work injury, even if another doctor subsequently opines that some of the treatment was not necessary. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). The Spencer court wrote:

"Where an employee, in good faith, accepts the recommendation of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment [additional temporary disability, greater permanent disability, and further medical expense] because it finds the treatment was either unnecessary or unreasonable."

Thus, under Spencer, even unnecessary and unreasonable medical treatment is compensable if it is sought in good faith to treat the work injury. There is no evidence that applicant was acting in bad faith and no other injury or preexisting condition that the treatment can be attributed to. Finally, there is no medical opinion that Dr. Baruah's treatment was unreasonable or unnecessary or unrelated to the work injury.

3. Employer Liability-St. Anne's Petition

St. Anne's petitions the finding that it is liable for applicant's 1996 disability. IME Dr. Zeman originally opined that applicant sustained a new injury by aggravation beyond normal progression. However, Dr. Zeman's supplemental report opines that applicant merely sustained a temporary aggravation of her preexisting condition. He logically found this based on the fact that radiographic studies from 1995 and 1996 were almost identical. Further, both Dr. Lincer and Dr. Baruah attribute permanency to the 1995 injury. Based on the opinion of Dr. Zeman, 5% disability is attributable to the 1995 employer and insurer.

The commission therefore awards additional TTD in 1995 and 1996 and expenses for treatment by Dr. Baruah. The commission finds applicant reached a healing plateau on January 6, 1997 as indicated by Dr. Baruah, and accepts Dr. Zeman's assessment of five percent PPD. Finally, based on the opinions of Drs. Baruah, Zeman and Lincer, all PPD is attributable to the 1995 injury.

The applicant petitions the denial of a loss of earning capacity award. The vocational expert only opined a minimal loss of earning capacity from 5 to 10 percent, with the larger award dependent on accepting Dr. Baruah's opinion as to medical restrictions. Even doing so, the 5% PPD award takes up the lower end of the vocational award. Further, the vocational expert found that if one considered that applicant was terminated from her position by the employer, for reasons unrelated to her work injury, there has been no LOEC. (7) Applicant has demonstrated no vocational loss in excess of the PPD awarded.

The applicant's average weekly wage was $272.00 resulting in a TTD rate of $181.33. The applicant is entitled to TTD for the periods of April 9, 1995 to April 11, 1995 (2 days) and June 26, 1995 to July 10, 1995 (2 weeks). The respondents paid $326.50 for those periods resulting in an underpayment of $96.61. The applicant is entitled to TTD for the periods of May 11, 1995 to June 24, 1995 (6 weeks, 2 days); July 10, 1995 to July 17, 1995 (1 week); August 7, 1995 to September 11, 1995 (5 weeks); and October 16, 1996 to January 6, 1997 (11 weeks, 4 days). The TTD due and owing is 24 weeks at $181.33 per week or $4,352, plus the $96.61 underpayment, for a total of $4,448.61. Applicant's attorney is entitled to a fee equal to 20% of the TTD award and costs in the amount of $215.20.

ORDER

The findings and order of the administrative law judge are reversed in part and affirmed in part. Within 30 days of this order the respondents St. Anne's Home for the Elderly and United Wisconsin shall pay to the applicant the sum of three thousand three hundred forty three dollars and sixty nine cents ($3,343.69); to applicant's attorney the sum of eight hundred eighty nine dollars and seventy two cents ($889.72) as fees and two hundred fifteen dollars and twenty cents ($215.20) as costs. In addition, St. Anne's Home for the Elderly and United Wisconsin shall pay the unpaid medical bills of two hundred sixty one dollars and twenty three cents ($261.23) to Diagnostic Radiology, Ltd.; one thousand one hundred seventy dollars and twenty five cents ($1,170.25) to Columbia Hospital; two thousand three hundred thirty dollars and seventy five cents ($2,330.75) to Concentra; and one thousand two hundred ninety three dollars and thirty one cents ($1,293.31) to Primecare as reimbursement for medical expenses paid by it. Credit may be taken for any amounts previously paid. Jurisdiction is reserved for such further findings and awards as may be warranted.

Dated and mailed July 12, 1999
draytka.wrr : 132 : 1 ND �5.9 �5.50

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ. The commission's award of additional TTD and medical expenses is not due to any credibility difference with the ALJ. The commission affirms the award of 5% PPD but does so based on Dr. Zeman's opinion. Both Dr. Baruah and Dr. Lincer assessed 3% PPD related to the April of 1995 injury, both indicating, using medical shorthand, that disability was "secondary" to, the April 8, 1995, injury.

cc: ATTORNEY DANIEL R SCHOSHINSKI
SHNEIDMAN MYERS DOWLING BLUMENFILED EHLKE HAWKS & DOMER

ATTORNEY JAMES P REARDON
KASDORF LEWIS & SWIETLIK SC

ATTORNEY PHILIP LEHNER
CAPWELL & BERTHELSEN

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Footnotes:

(1)( Back ) Confirmed by MRI of June 09, 1995 and EMG of June 10, 1995. (Exhibit E)

(2)( Back ) An August 17, 1995, treatment note indicates her work restrictions were upgraded to medium work.

(3)( Back ) While Dr. Zeman claimed to be giving the same opinion on causation as he had in March of 1997, he actually changed his opinion from the 1996 exposure constituting a new injury by acceleration beyond normal progression to what he called a "new" injury that was merely a temporary aggravation of the applicant's preexisting condition.

(4)( Back ) The commission found that strike-replacement work within a worker's restrictions is "suitable," noting the commission's policy to apply the WC law in neutral fashion in cases of labor disputes.

(5)( Back ) See footnote 2 in Brakebush.

(6)( Back ) Indeed Dr. Lincer was unable to set a healing plateau because the applicant did not continue to treat with him. At the hearing the applicant testified "Dr. Lincer gave two or three epidural injections. I quit treating with him when there was no money for the medical bills." Syn., p. 3.

(7)( Back ) A worker's discharge may be considered in determining a loss of earning capacity award. When an employe returns to work at less than 85 percent of pre-injury wage, the wage loss caused by discharge ordinarily would be relevant to a worker's loss of earning capacity. The commission has found an exception to the award of LOEC for discharge under circumstances in which the worker's actions leading to the discharge may be equated with refusing work without reasonable cause. Thus, in cases where the commission finds that the worker's actions which led to the discharge from the time-of-injury employer were tantamount to an unreasonable refusal to work which he could have or she could have performed, the commission will refuse to "reopen" the loss of earning capacity award based on the separation. Likewise, if the applicant's discharge was due to action tantamount to work refusal, the effect of the resulting separation on the applicant's earning capacity will not be considered, and the estimate of loss of earning capacity will be calculated as if the applicant were still working. See e. g. Kowalchuk and Wellsandt, supra.