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

ROBERT J ANDERSEN, Applicant

TELEMARK RESORT, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1993031020

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

The applicant was born February 23, 1919. He had worked for 20-plus years for the employer as a maintenance worker. On May 13, 1993, he incurred an injury to his back while lifting a tank and stool on a toilet at the employer. CAT scans taken after the incident showed a disc herniation at L4-5. The applicant received chiropractic and medical treatment. Three weeks later he returned to work for the employer without any restrictions. However, applicant was restricted in his physical activities and was assigned to less strenuous work and given more assistance to perform tasks. He returned to the same wage he had been receiving on the day of his injury. Subsequently he received pay increases. From November of 1993 to January 1997, he sought no medical treatment for his back.

On January 3, 1997, the applicant sustained a second back injury while at work. He received permanent restrictions after that back injury by Dr. Van Fossen of frequently carrying 25 pounds with a maximum lift of 50 pounds. The applicant had problems standing after the 1997 injury that he did not have prior to that injury. The applicant was terminated on or about March 20, 1997.

The commission finds that applicant sustained two percent permanent partial disability attributable to the 1993 injury. It is clear the applicant had a herniated disc following the May of 1993 injury. While no permanent restrictions were assessed at that time, the doctors did later attribute disability and restrictions at least in part to the 1993 injury. Some permanency is in fact due to that injury. However, given that fact, the applicant is also entitled to a loss of earning capacity as the employer no longer employs him. Wis. Stat. § 102.44(6)(b), provides:

"If, during the [12-year statute of limitations] in s. 102.17(4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity."

The applicant's employment did in fact end within the 12-year statute of limitations as the employer discharged the employe.

A number of medical professionals have given opinions in this case. Dr. Van Fossen and Dr. Premer gave the two that commission to be the most credible. Dr. Van Fossen assessed work restrictions allowing the applicant to lift 20 pounds frequently and occasionally lift 50 pounds. Dr. Van Fossen apportioned the applicant's disability as resulting 62.5 percent from his 1997 injury and 37.5 percent from his 1993 injury. Based on such apportionment, the applicant's vocational expert, James Hill, found that the applicant had sustained a loss of earning capacity of 15 to 25 percent. Based on a percentage of 37.5 attributable to the 1993 injury this would equal a loss of earning capacity attributable to the 1993 injury based on Dr. Van Fossen's restrictions of 5.625 to 9.375 percent. The respondent's vocational expert, Mr. Smith, based on Dr. Van Fossen's restrictions, found a loss of earning capacity in the range of 10 to 15 percent total or 3.75 to 5.625 percent attributable to the 1993 injury.

Both vocational experts also considered the opinion of Dr. Premer who restricted the applicant to light category work lifting no more than 20 pounds occasionally. Using Dr. Premer's opinions, who attributed 50 percent disability to the 1993 injury and 50 percent disability to the 1997 injury, Mr. Hill found a loss of earning capacity of 15 to 20 percent, or 7.5 to 10 percent attributed solely to the 1993 injury. Also based on Dr. Premer's restrictions, Mr. Smith found a loss of earning capacity in the range of 15 percent to 25 percent total or 7.5 to 12.5 percent attributed solely to the 1993 injury.

The only vocational opinion offered in the case finding no loss of earning capacity was given by Mr. Smith. However, he premises this opinion on the assumption that because the employer went bankrupt the applicant does not have a right to a loss of earning capacity award. This is an incorrect interpretation of the law. Simply because the employer goes bankrupt does not mean that the applicant cannot bring a claim for loss of earning capacity. There is no requirement in Wis. Stat. § 102.44(b), that the employer terminate the applicant because of his injury. All that is required is that at least a 15 percent wage loss occurs within the 12-year statute of limitations.

There is no dispute that the applicant is elderly and the applicant has a number of physical problems unrelated to the 1993 injury including his knee and his shoulder. It is also true, however, given the assessment of a permanent partial disability award on a functional basis, some loss is reasonably attributed to the 1993 injury. The commission finds that applicant sustained a 3.75 percent loss of earning capacity. The commission believes that the applicant's advanced age warrants a minimal award in this case. Applicant is thus entitled to 17.5 weeks of benefits at the permanent partial disability rate of $152.00 for total accrued benefits of $2,660.00. Respondent has already paid benefits due based on 2 percent functional disability.

With respect to the claimed medical expenses detained in Exhibit G, these cannot be allowed, as the charges from the Hayward Family Chiropractic and the Duluth Clinic of Hayward were not for the applicant's back. The charges from the Lakeview Medical Center Diagnostic Radiology and the Marshfield Clinic were for a 1997 injury which has been compromised shortly prior to the hearing.

ORDER

The findings and order of the administrative law judge are affirmed and part and reversed in part. Within thirty days of the date of this order the respondents shall pay to the applicant the sum of two thousand one hundred twenty-eight dollars ($2,128.00) and to applicant's attorney, Mark Seifert, the sum of five hundred thirty-two dollars ($532.00) as fees.

Dated and mailed September 2, 1999
anderro . wrr : 132 : 7 ND § 5.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission disagrees with the rationale used by the ALJ for denying a loss of earning capacity award.

cc: ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

ATTORNEY MARK A SIEFERT
STILP & COTTON

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