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

RICHARD R WOOD, Applicant

QUARTEX INC, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998007394

A hearing was held in this case before an administrative law judge for the Worker's Compensation Division of the Department of Workforce Development on November 18, 1998. Prior to the hearing, the employer and insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $606, a compensable injury on December 9, 1997, and an end of healing as of September 1, 1998.

The issue before the administrative law judge, and now before the commission, is nature and extent of disability.

The administrative law judge issued his findings of fact and interlocutory order in this case on February 15, 1999. The employer and the insurer (collectively, the respondent) have submitted a timely petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties, and makes these:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began working for the employer in 1995. His duties included putting molds into plastic injection machines with a forklift. On December 9, 1997, he was injured when he slipped on ice in the employer's parking lot and fell on his right shoulder.

The applicant reported the injury immediately to the shift supervisor, Sharon Pratt. She made arrangements for the applicant to obtain treatment. He treated with a doctor at Aurora Health Care who prescribed ibuprofen and Tylenol 3 (a medication with Codeine), and supervisor Pratt took the applicant home. The doctor also recommended the applicant ice his arm. The doctor released the applicant to work the next day with a 10-15 pound lifting restriction.

The applicant gave the release to supervisor Pratt, who evidently conveyed it to the employer's manager, Scott Diederich. Transcript, page 35-36. Mr. Diederich did not then offer the applicant work within the restriction. However, Mr. Diederich testified that he expected the applicant to return anyway, as the employer's workers all understand that the employer will accommodate any restrictions. Transcript, pages 36-37. The employer has no written policy to that effect, however. (1)

The next day (December 10), the applicant could not move his arm. Consequently, he did not return to work, but instead made arrangements to see another doctor, W. J. LeMar, M.D., the following day (December 11). Dr. LeMar's note records the applicant's injury, and also that the applicant's pain returned when he ran out the Tylenol 3 with codeine prescription. She noted he used his right hand for lifting up to 25 pounds, and to tighten bolts on machinery.

Dr. LeMar's notes also report that the applicant told her it was difficult for him to go to work because the Tylenol made him sleepy, and that one of the Tylenol restrictions was not to drive or use machinery. Dr. LeMar prescribed a higher dose of ibuprofen, and Ultram, another prescription pain medication, to use as needed. She agreed to keep him off work for another day.

The applicant returned to Dr. LeMar the next day, December 12. He reported that the Ultram and ibuprofen were effective, and that this shoulder was slightly better. Dr. LeMar wanted to continue conservative treatment. She concluded:

"He is to return to work with restrictions of no use of the right arm. The patient continues to be off work because he states that the employer is currently unable to comply with restrictions. He will follow up again after the weekend, December 15, 1997."

Exhibit 1.

According to the applicant, he thought that because Dr. LeMar instructed him to continue using the pain medication, he could remain off work. He testified he told the doctor he did not think he could continue to do his regular job, a reasonable belief since he could not use his dominant right arm.

A copy of Dr. LeMar's work release is in the file at exhibit 1. It indeed states the applicant was released to work as of December 12, 1997 with a restriction against using the right arm. The applicant testified he gave the release to his girlfriend- roommate, Susan Cooper, to bring to the employer. The work release form also indicates that, later that same day, "BH" from the doctor's office contacted "Dwight" at the employer's place of business about the applicant's restrictions.

The employer's manager, Scott Diederich, testified he not receive the December 12, 1997 work release.

The applicant returned to Dr. LeMar on December 15, 1997. He told the doctor he had an increase in range of motion, but continued to experience deep-seated pain. She again imposed restrictions against use of the right arm, and again noted employer was unable to comply with that restriction.

Again, the applicant had his girlfriend, Susan Cooper, convey the December 15 work restrictions to the employer. BH also relayed the restriction to the employer on December 15. This time BH left a message for Dwight.

Mr. Diederich acknowledges receiving the December 15 restriction from Ms. Cooper. Indeed, Mr. Diederich testified he told Ms. Cooper to tell the applicant to return to work because the employer could accommodate the "no right arm use" restriction. Mr. Diederich testified he could not reach the applicant by phone, as the applicant did not have a phone. Transcript, page 38 and 45. (2)

The applicant testified that Ms. Cooper did not tell him of Mr. Diederich's offer of work (or instruction to return to work) on December 15. Transcript, page 14 and 31. It was not until December 18, the applicant testified, that Ms. Cooper told him that she had become aware that he was in some kind of trouble for not returning to work. Transcript, page 14.

The next day (December 19), then, the applicant saw Dr. LeMar to try to straighten the situation out. The doctor acknowledged in a note for that date that the situation was confusing and that she thought the applicant honestly misunderstood her release to work. Exhibit 1, LeMar note for December 19, 1997. Indeed, Dr. LeMar evidently called the insurer and said just that.

After talking with Dr. LeMar on December 19, the applicant testified, he clearly understood he was supposed to return to work with restrictions. He then went to work that same day, and spoke with Daryl Thomas, the employer's vice president. The applicant explained he misunderstood Dr. LeMar's release. According to the applicant, Mr. Thomas recognized that, but still fired the applicant, after suggesting the applicant use vacation for the days he missed.

Mr. Diederich, the employer's only witness, was not present at the meeting between vice president Thomas and the applicant. Mr. Diederich testified, however, that as far as he was concerned, the applicant quit when he did not come in to work within two days of the date of injury. Transcript, pages 47-50. Mr. Diederich admitted Thomas terminated the applicant's employment. Transcript, page 51.

After his separation from employment in December 1997, the applicant was diagnosed with a rotator cuff tear from the fall. The parties stipulated he was in a healing period (and hence conditionally eligible for temporary disability) until September 1, 1998.

Finally, the commission notes that the applicant had sustained a prior work injury. According to the employer's witness Diederich, he returned to work from that injury in light duty. Transcript, page 37. The applicant testified that when he returned, it was at full duty or nearly full duty. Transcript, page 24-25. The applicant admitted he was aware, however, that the employer provided light duty to injured workers.

At issue is the applicant's eligibility for temporary disability. On this question, the commission, like ALJ Phillips, notes 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."

The commission, like Dr. LeMar, concludes that the applicant genuinely misunderstood his restrictions. Nonetheless, the employer was aware of the applicant's restrictions, as the restrictions were submitted to the employer by Ms. Pratt, Ms. Cooper, and Dr. LeMar's office. The commission also concludes that the applicant indicated his willingness to return to work by submitting the restrictions to the employer through Ms. Pratt and Ms. Cooper. This conclusion is supported also by the applicant's fast action in contacting the employer once he understood that Dr. LeMar had released him to work subject to the no-right-arm- use restriction.

On appeal, the respondent contends it is not liable for temporary total disability because the applicant never directly communicated his restrictions to the employer. Alternatively, the respondent contends that even if it is charged with knowledge of the restrictions, it should not be liable for temporary total disability because it offered work through Ms. Cooper. In response, the applicant disputes both of the respondent's assertions, and goes on to argue that since the employer fired the applicant during his healing period, he is entitled to benefits automatically under Brakebush v. LIRC, 210 Wis. 2d 624 (1997).

The commission cannot accept the respondent's position. First, the employer, through manager Diederich, admitted receiving the December 9 and December 15 restrictions which were given by the applicant to Ms. Pratt and Ms. Cooper. Dr. LeMar's December 12 note indicates her office contacted the employer with the restrictions from that date directly. The commission has previously held that a face-to-face meeting between the injured worker and the employer is not necessary when the employer is aware of the restrictions through a doctor's report or other means. Wanda Bloor v. Hillsborough Enterprises, WC Claim no. 90070531 (LIRC, June 29, 1994). In short, the employer, having been aware of the restrictions, has the duty to provide work within them or pay temporary disability.

The next question, then, is whether the employer offered work within the applicant's restrictions. The commission must conclude it did not.

First, given Wis. Admin. Code § 80.47, the commission is not persuaded that an employer may simply rely on a past practice of accommodating work restrictions, or try to shift the burden of inquiring about limited duty to the injured worker by raising such a policy. However, even if the commission allowed the employer to shift the burden in that fashion, though, there is no real proof that the employer had such a policy in this case; certainly no written rule was shown to exist.

Second, the commission is not willing to find an offer of work was made based on Mr. Diederich's testimony that he told Ms. Cooper to tell the applicant to return to work. Since it is the employer's burden to provide work, the commission concludes the employer has the burden of proving it offered work. (3) In this case, there is no testimony from Ms. Cooper indicating she relayed the offer to the applicant or told him to return to work before December 18. Certainly, the applicant testified no such offer was made through Ms. Cooper.

Accordingly, the applicant was temporarily totally disabled from December 9, 1997 to September 1, 1998, both dates inclusive, a period of 39 weeks and one day. He is entitled to compensation for temporary total disability for that period at the weekly rate $404 (two-thirds of his conceded average weekly wage of $606), or $15,419.33.

The employe consented to a twenty percent attorney fee under Wis. Stat. § 102.26. The fee is thus $3,083.87 (twenty percent of $15,419.33), which shall be deducted from the applicant's award. The amount due the applicant is thus $12,335.46.

Because the applicant needs additional medical treatment and may be entitled to other benefits under ch. 102, Wis. Stats., jurisdiction is reserved for such further findings and awards as may be warranted.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Richard R. Wood, Twelve thousand three hundred thirty-five dollars and forty-six cents ($12,335.46) in disability compensation.

2. To the applicant's attorney, John A. Becker, Three thousand eighty- three dollars and eighty-seven cents ($3,083.87) in attorney fees.

Jurisdiction is reserved for such further findings and awards as may be appropriate.

Dated and mailed July 29, 1999
woodri.wrr : 101 : 5  ND § 5.10

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY JOHN A BECKER
BECKER FRENCH & DE MATTHEW

ATTORNEY ROLAND C CAFARO
CASTAGNA EVEN CAFARO & SOULE

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Footnotes:

(1)( Back ) The employer's attorney asked Diederich if the employer's handbook contained the policy, but withdrew the question. Transcript, exhibit 55-56. The handbook was not submitted into evidence.

(2)( Back ) There is some testimony that the employer could not have reached the applicant by letter either as the applicant had changed addresses. The testimony on this point is confusing, but three things are evident: (a) the employer did not have the applicant's current address at the time of the injury, (b) but the employer did not know the applicant had moved, and (c) the reason it did not try to contact him by letter was because it would take too long and it was satisfied with Ms. Cooper as a go- between.

(3)( Back ) An injured worker has the burden of proving "all facts essential to recovery of compensation." Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). The applicant has met that burden in this case by proving he was temporarily disabled from a work injury. At issue here is the employer's assertion that it does not have to pay temporary disability compensation by virtue of an offer of work within the applicant's restrictions. The commission believes it is reasonable to require the employer to prove it made such an offer, given its consistent holdings that the burden of providing work under Wis. Admin. Code DWD § 80.47 is on the employer. See for example, Baker-Drayton v. St. Anne's Home, WC case no. 1995-038417 (LIRC, July 12, 1999), and the cases cited therein. The respondent also argues that the applicant's claim must be denied under Wis. Stat. § 102.44(6)(g). That statutory paragraph applies to permanent disability based on loss of earning capacity, however, not to temporary disability under Wis. Stat. §. 102.43. 5