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


RICHARD L HALL, Applicant

CONSOLIDATED THERMOPLASTICS, Employer

NATIONAL UNION FIRE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995022808


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 by the employer.

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 September 29, 1999
hallri.wsd : 175 : 2 ND § 5.18  § 8.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in awarding the applicant 30 percent permanent partial disability as a result of his work-related back injury in April 1995. Following his work injury the applicant came under the care of Dr. Rankin, who performed surgery in the nature of a laminectomy and discectomy at the L4-5 and L5-S1 levels with associated foraminotomy at the L5 and L4 levels. The applicant continued to report severe back pain and did not have good results from his initial surgeries on June 5, 1995. The applicant sought further treatment with Dr. Manz, who performed subsequent surgery on April 22, 1996. Dr. Manz performed an interior lumbar discectomy and inner body fusion at the L4-5 and L5-S1 levels with instrumentation. The applicant underwent a subsequent surgery on June 18, 1998, for removal of the instrumentation. The applicant reported ongoing back pain and problems between his surgery in 1996 and the removal of instrumentation in 1998. The applicant's medical notes indicate that he reported improvement following his last surgery. However, the applicant testified at the hearing that he needed the surgery in June 1998 due to swelling in his back and pain down the legs which were constant.

The employer notes that the applicant's initial laminectomies were done at the L4-5 and L5-S1 levels and that his subsequent discectomy and fusion surgery in 1996 was done at exactly the same levels. The employer states that under Wisconsin Administrative Code § DWD 80.32(1) it is provided that minimums contained in the code assume that the member, for example the back, was previously without disability and therefore there should be an appropriate reduction made for any preexisting disability. The employer states that there should be some reduction from the applicant's award since there was a preexisting disability in his back based on his original laminectomies at the time that he had the fusion. Therefore the employer contends that the total would not add up to 30 percent permanent partial disability based on his four surgeries, but rather would be 20 percent permanent partial disability.

However, the applicant testified that he had no prior problems with his back before his work injury in April 1995. The applicant's initial laminectomies were done specifically in relation to his work injury. The commission does not find that the language contained in the Wisconsin Administrative Code § DWD 80.32(1) referring to a back previously without disability was intended to provide a reduction made for a prior laminectomy that was done to cure and relieve the effects of the same work injury. The commission interprets § DWD 80.32(1) to refer to a back which was previously without disability prior to the work injury, and not some disability which may have occurred due to surgery to cure and relieve the effects of that same work injury. The applicant's laminectomies in this case were done specifically in relation to his April 1995 work injury and there should be no deduction from the amount awarded for the subsequent fusion procedures based on his prior laminectomies.
The fact that the fusion procedures were done at the same level is irrelevant. The commission agrees with the administrative law judge that the applicant's minimum award based on his two laminectomies as well as his two fusion surgeries which included a discectomy and fusion, amounts to 30 percent under § DWD 80.32(11).

The employer also contends that the administrative law judge erred in entering an interlocutory order on the issue of loss of earning capacity. The hearing notice indicated that the issues to be heard at the hearing were primary compensation and medical expense which included the applicant's claim for a loss of earning capacity. The employer states that it had gone through the effort and expense to obtain a vocational expert report on the issue of loss of earning capacity and was prepared to litigate that issue at the hearing, and that it is important to come to some finality and not postpone the issue until a later date. However, the applicant's attorney pointed to the fact that his own vocational expert, Ms. Mathson, had opined that the applicant had suffered a 30 percent loss in earning capacity and that the employer's vocational expert had opined that the applicant had loss of earning capacity somewhat less. The applicant's attorney stated that there would be no point in going ahead and pursuing the loss of earning capacity at that time under these circumstances.

The commission is sympathetic to the employer's argument that he had made the expenditure to obtain a vocational report and was prepared to litigate the issue at the hearing. However, the applicant's attorney also persuasively argued that since the loss of earning capacity awarded at that time was no more than the amount awarded for functional disability that there would be no use proceeding on that issue at that time. The evidence also indicated that the applicant was having trouble with his current job working 12 hours per day due to his back problems and may have to leave his employment due to his work problems. Ms. Mathson opined that the applicant would have a higher loss of earning capacity rating if in fact he was no longer working. The applicant's attorney also pointed to the fact that the applicant was further inquiring into the possibility of retraining which was supported by the applicant's testimony. Any retraining that the applicant underwent could change the amount of loss of earning capacity assessment and the employer's vocational expert, Mr. Smith, also stated that the applicant's loss of earning capacity claim could change based on any vocational retraining.

The applicant testified to his continuing disability and back problems as a result of his work injury and subsequent surgeries. Given the fact that the applicant continues to have problems with work and continues to suffer back problems and given that both vocational experts noted that the applicant's loss of earning capacity assessment could change if he underwent vocational rehabilitation training, and also given the fact that the applicant's loss of earning capacity assessment could change if he was no longer able to perform his current work, the commission does not find that the administrative law judge abused his discretion in entering an interlocutory order on loss of earning capacity. Given the severity of the applicant's injuries and the number of surgeries that have been performed to cure and relieve his work injury, the commission finds that the administrative law judge appropriately entered an interlocutory order and reserved jurisdiction as to future medical expense and for any and all possible future claims.

cc: ATTORNEY THOMAS A SIEDOW
PARRONI SIEDOW & JACKSON SC

ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI SC


Appealed to Circuit Court.  Affirmed April 13, 2000.

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