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

BARRY H BAUMANN, Applicant

ARCHIE MONUMENT, Employer

SECURA INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997000836

Archie Monument and Stone Company and Secura Insurance Company (hereinafter respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on November 12, 1998. The applicant submitted an answer to the petition and briefs were submitted by the parties. A compensable back injury was conceded as having occurred on August 15, 1995. Also conceded before the commission were the administrative law judge's Findings concerning respondents' liability for temporary total disability through February 17, 1997, three percent permanent functional disability, and medical expenses. Respondents' petition challenges only the administrative law judge's findings regarding their liability for vocational rehabilitation benefits beginning with the fall semester of 1998 and prospectively thereafter.

The commission has carefully reviewed the administrative law judge's Findings and Interlocutory Order, and hereby affirms his findings with regard to temporary disability through February 17, 1997, permanent functional disability of three percent, and medical expenses; but reverses his findings with regard to vocational rehabilitation benefits. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

For the sake of convenience, the commission hereinafter reiterates those findings of the administrative law judge which the commission affirms:

"The applicant is a 50 year old male. In 1995 and 1996 he was employed by Archie Monument Company as a stone setter. It was the applicant's job to deliver and install grave head stones in various cemeteries. The applicant and a coworker would set the base and seal it to the foundation and then set the head stone and seal that to the base. The head stones weighed up to 1,000 pounds. At times the applicant would use a truck-mounted hoist to lift the stones. If they could not get close to the grave site, the applicant and his partner would move and lift the stones with a handcart. The applicant sustained a compensable injury on August 15, 1995. On that date the applicant and his partner were replacing old foundations in a cemetery. While the two of them were lifting a head stone, the applicant's partner slipped and the applicant was left holding the bulk of the weight. Symptoms included a sharp back pain and some leg radiation. The work at Archie Monument was primarily seasonal. The applicant continued to perform his duties until Dec 1995. He then sought treatment from Dr. Terry Turke, his family physician. Dr. Turke treated the applicant with pain medications, physical therapy and rest. He was able to return to full time employment in April 1996. On September 5, 1996, the applicant again began treating with Dr. Turke. Treatment at that time included low back pain and pain radiation into both legs. The applicant initially did not report any additional work injuries. He later told his doctor he reinjured his back in August 1996 while lifting large head stones. Dr. Turke ordered EMG and CT scans. A diagnosis of bulging discs was given. Dr. Turke released the applicant to return to work on February 17, 1997, with restrictions. Because Archie Monument Co. had gone out of business, the applicant was unable to return to work with them. In January 1998 the applicant enrolled at Waukesha County Technical College, in a computer programmer/analyst program. Because the applicant was a dislocated worker, he received some financial support for that course work from the Private Industry Council. The applicant had also sought certification from the Division of Vocational Rehabilitation. According to their Individual Written Rehabilitation plan, they have certified the applicant as eligible for placement services. They have not certified him for retraining. The applicant has completed one semester of his four semesters of course work. He is currently in his second semester.

The applicant's main treating physician was Dr. Terry Turke. Dr. Turke indicated that the applicant reached a healing plateau on February 18, 1997. Permanent restrictions include a 25-pound lifting limitation and limitations regarding repetitive bending and lifting. Dr. Turke also indicated that the applicant should be allowed to change positions frequently, should wear a back belt and is not to work overtime. Permanent disability assigned by Dr. Turke is 3 to 5 percent of the body as a whole. An independent medical exam was done for Heritage Insurance by Dr. Richard Karr. Dr. Karr indicated that the applicant sustained a lumbar strain in August 1996, which resulted in the need for treatment at that time. Permanent disability assigned by Dr. Karr is two percent of the body as a whole. Permanent limitations include a 50-pound lifting restriction, a 25- pound repetitive lifting restriction and limitations regarding repetitive bending. It was Dr. Karr's opinion that the permanent disability and medical treatment are all related to a reinjury in August 1996. The independent medical examiner for respondent Secura Insurance was Dr. Stephen Weiss. It was Dr. Weiss' opinion that the applicant's treatment and disability are all related to the traumatic August 15, 1995 injury. He indicated that the treatment in September 1996 was merely due to a manifestation of the preexisting condition. Dr. Weiss assigned a two percent permanent partial disability. Permanent limitations included an 80-pound lifting restriction and a 50-pound repetitive lifting restriction.

On the issue of whether the applicant sustained a compensable August 1996 injury, I find for the respondent. In doing so I find most credible the opinion of Dr. Stephen Weiss. The applicant sustained a traumatic injury on August 15, 1995. Symptoms at that time included severe back pain and leg radiation. Although he returned to work after that injury he continued to have some symptoms. Those symptoms merely manifested themselves in August 1996. A key to my determination are the medical notes when the applicant first began treating in September 1996. Those notes specifically indicated that the history given by the applicant was that he did not sustain any recent injury. Although the applicant now claims he sustained a back injury in August 1996, he specifically denied a history of a recent injury in those early reports.

On the issue of the extent of permanent disability I find that the applicant is entitled to a total of three percent permanent partial disability. The respondents two doctors indicate the applicant sustained a two percent disability. The applicant treating doctor said that the permanent disability is three to five percent. Since the applicant's doctor is saying three to five percent, he essentially is saying that the applicant has a definite three percent disability and is speculating on disability up to five percent. I find credible his assessment that the applicant has sustained a three percent permanent disability. The applicant has relatively constant pain. That pain increases, and radiates into the lower extremity, when the applicant performs excessive activities. Based on the Worker's Compensation guidelines I find a three percent assessment to be credible. The permanent disability shall be paid at the 1995 rate.

As to end of healing, I find credible that the applicant reached a healing plateau on February 17, 1997. In doing so I find most credible the opinion of the applicant's treating physician regarding end of healing. The applicant was actively treating with his doctor until that time. It was independent medical examiner Stephen Weiss that indicated that the applicant reached a healing plateau on December 20, 1996. At that time the applicant was still in active treatment and Dr. Weiss reported that the applicant was still suffering from muscle spasms when he examined the applicant. The respondent shall be liable for temporary total disability through February 17, 1997."

With regard to the issue of vocational rehabilitation, the administrative law judge correctly found that the applicant was not certified for DVR services until after he had begun his schooling at Waukesha County Technical College, and then the DVR certified him for job placement rather than retraining. At the hearing held on October 28, 1998, DVR counselor Ron Rew acknowledged these facts but testified that the DVR "will be completing" an addendum to the applicant's Individual Written Rehabilitation Plan to support retraining. However, as of the date of hearing no such addendum had been completed. Without such written certification for retraining being issued by the DVR, no individual could be found eligible for retraining benefits pursuant to federal law and as contemplated in Wis. Stat. § 102.61(1). Such certification is a prerequisite to receiving vocational rehabilitation benefits under Wis. Stat. § 102.61(1) and 102.43(5).

Accordingly, the administrative law judge erred when he found that if the DVR did issue a retraining certification (on a date not specified by the administrative law judge), respondents would be liable for vocational rehabilitation benefits retroactively to the beginning of the 1998 fall semester, and prospectively until the training ended. As of the date of hearing, October 28, 1998, no retraining certification had been issued by the DVR, and therefore no vocational rehabilitation benefits can be paid to the applicant for any schooling he undertook through that date. It appears that retraining certification may have been issued by the DVR subsequent to October 28, 1998, but that respondents would assert that the DVR abused its discretion in issuing such certification. Accordingly, the issue of the applicant's eligibility for vocational rehabilitation benefits for any date subsequent to October 28, 1998, remains open, and will be a part of the interlocutory nature of this order.

The temporary total disability owed is $7,080.83. The permanent disability owed is $4,920. Minus the $9,624.03 previously paid, the total owed is $2,376.80. Of that amount, $475.36 in fees and $919.86 in costs shall be paid to Attorney Carl Dubin. The remaining $981.58 in compensation shall be paid to applicant Barry Baumann.

The respondents shall also be liable for the applicant's medical expenses. They shall reimburse to the applicant $52.30 for medical expenses paid by him, and shall pay unpaid medical expenses of $422.19 to Dr. Terry Turke, $81.50 to Watertown Radiology, S.C., $75 to Dr. Kevin O'Halloran, $729.95 to Watertown Memorial Hospital, $667 to Dr. A. Clar and $288 to the Dean Medical Clinic. This order shall be final as to temporary disability, medical expenses to date, and functional permanent disability. Jurisdiction will be reserved with respect to all other issues.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within thirty days from this date respondents shall pay to Attorney Carl Dubin, Four hundred seventy-five dollars and thirty-six cents ($475.36) as fees, and Nine hundred nineteen dollars and eighty-six cents ($919.86) as costs; and to the applicant, Nine hundred eighty-one dollars and fifty- eight cents ($981.58) as compensation. In addition, they shall pay unpaid medical expenses of four hundred twenty-two dollars and nineteen cents ($422.19) to Dr. Terry Turke; Eighty-one dollars and fifty cents ($81.50) to Watertown Radiology, S.C.; Seventy-five dollars ($75) to Dr. Kevin O'Halloran; Seven hundred twenty-nine dollars and ninety-five cents ($729.95) to Watertown Memorial Hospital; Six hundred and sixty-seven dollars ($667) to Dr. A. Clar; Two hundred and eighty-eight dollars ($288) to the Dean Medical Clinic; and Fifty-two dollars and thirty cents ($52.30) to the applicant.

Dated and mailed August 13, 1999
baumaba.wrr : 185 : 5 ND §5.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission's partial reversal of the administrative law judge's order was done as a matter of law, and was not based on any disputed fact requiring a credibility determination.

cc: ATTORNEY SUSAN VAN SCHAIK
DUBIN & BALISTRERI LTD

ATTORNEY JAMES G NOWAKOWSKI
HALLING & CAYO SC

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