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

SUZANNA CZEREN, Applicant

DEPARTMENT OF REVENUE, Employer

DEPARTMENT OF ADMINISTRATION, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1996019120, 1996019122, 1999011426

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 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 October 29, 1999
czerens.wsd : 101 : 5 ND 5.13  5.6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant claims a psychological injury or disability after a bilateral injury to her shoulders from repetitive work. The ALJ credited the psychological disability claim itself. He awarded about 20 weeks of temporary total disability, but ordered the compensation to be used to reimburse a non-industrial disability carrier. The ALJ also awarded permanent partial disability at five percent compared to disability to the body as a whole. The applicant appeals, contending she is entitled to additional temporary disability or, alternatively, that she is entitled to permanent total disability. She also challenges the ALJ's reimbursement of the non-industrial insurer.

The commission first considers the extent of disability. Although the applicant's repetitive strain injury to her shoulders occurred in 1995, her last day of work was February 23, 1996. The ALJ found she reached a healing plateau with respect to her psychological injury about 20 weeks later on July 19, 1996. This finding is based on a 10 percent permanent partial disability rating given by her treating psychologist (Paul Thoresen, Ph.D.) as of June 20, 1996 on a diagnosis of "chronic pain disorder," and on a two percent permanent partial disability rating for myofascial pain given by a rehabilitative medicine doctor (Arthur Rodriguez, M.D.) on July 19, 1996.

It is true neither doctor actually says "The applicant reached a plateau of healing on July 19, 1996." But the commission and the department have uniformly held that the ability to rate a definite permanent partial disability for a given disability ends the healing period for that disability. In other words, when a doctor gives a permanent partial disability rating, the commission and the department infer that he or she is also saying that "there has occurred all of the improvement that is likely to occur," which is the standard definition for the healing plateau or end of healing. Larsen Co. v. Industrial Commission, 9, Wis. 2d 386, 392 (1960).

It is also true that Dr. Thoresen changed his mind and later rated permanent disability at 100 percent. However, a changed permanent disability rating does not necessarily equate to continued healing. Beyond that, Dr. Thoresen does not explain why he changed his permanent disability rating, nor does he explain whether or how her condition changed between the time he rated permanent partial disability at 10 percent and the time he rated 100 percent. Certainly, Dr. Thoresen did not indicate her condition was continuing to improve or heal during that interval.

It is also true that the opinions other doctors who treated the applicant rendered might support a larger temporary disability claim. For example, Frank J. Salvi, M.D., opined that the applicant had not yet reached a plateau with respect to her shoulders when he last examined her in 1998 (exhibit Z). However, Dr. Salvi was primarily concerned with the applicant's shoulder itself, not the psychological condition at issue here. In any event, the ALJ's conclusion regarding temporary disability is grounded in reasonable inferences drawn from the opinions given by the applicant's own doctors, and the commission adopts it as its own.

For similar reasons, the commission affirms the ALJ's award of permanent partial disability at 5 percent compared to permanent total disability. The ALJ's award is between the 2 and 10 percent estimates rated for the myofascial pain/chronic pain diagnosis given by Drs. Rodriguez and Thoresen respectively. True, there are other higher ratings in the record, but, again, the commission notes that the 2 to 10 percent range was set by the applicant's own doctors.

The applicant also asserts that the ALJ improperly used her temporary disability benefits to reimburse a non-industrial insurer for disability payments made during her healing period. However, the ALJ's order was entirely appropriate under Wis. Stat. 102.30(7). The applicant argues that repayment is barred by Wis. Stat. 102.30(2), but that section merely states that if the employer obtains other insurance to compensate death or disability, the employer is still liable under the Workers Compensation Act if the death or disability is caused by work.

Indeed, Wis. Stat. 102.30(2) must be read in conjunction with Wis. Stat. 102.30(7) which specifically requires the reimbursement of insurers who inappropriately pay disability to cover work injuries. In this case, the state introduced the non-industrial disability policy which specifically provides that benefits should be reduced dollar-for-dollar by workers compensation payments. For the non-industrial insurer to pay the full amount would be improper under its insurance contract.(1)

Finally, the applicant argues that she should not have to repay the non-industrial insurer, as Wis. Stat. 102.30(7) allows reimbursement for "payments made under a non-industrial policy covering the same disability and expenses compensable under s. 102.42." The applicant points out that temporary disability is paid under Wis. Stat. 102.43, not Wis. Stat. 102.42. However, the reference to s. 102.42, while perhaps ambiguous, is most reasonably construed as modifying only the word "expenses," not "disability." Indeed, that is the only construction that makes sense, as Wis. Stat. 102.42 does not provide for compensation of disability at all, but only medical expense.

A similar question was discussed in Vandervelde v. Green Lake, 72 Wis. 2d 210, 215 (1976), where the court resolved the issue by reviewing legislative history. Here, the legislative history is evident from the department's footnote to Wis. Stat. 102.30(7) which states the law was intended to cover "all covered benefits provided" which would include temporary disability under Wis. Stat. 102.43 as well as medical expense under Wis. Stat. 102.42. (2) Thus, the statutory language supports the commission and department practice of ordering repayment of nonindustrial payments out of a temporary disability benefit award, if the nonindustrial policy so provides. See Neal & Danas, Workers Compensation Handbook 5.13 (4th Ed 1997).

cc: ATTORNEY RICHARD J WARD
STERN SKILES & WARD

LOWELL E NASS
ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE

Appealed to Circuit Court.  Affirmed July 28, 2000.     

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Footnotes:

(1)( Back ) The commission does not find the payments were improper in the sense that the applicant did anything "wrong."

(2)( Back ) See footnote 122 in DWD's Workers Compensation Act of Wisconsin, with amendments to January 1, 1998, publication WKC-1-P(R.2/99). As to the authoritative value of DWD's annotation of the workers compensation statutes, see Pigeon v. DILHR, 109 Wis. 2d 519, 524-25 (1982).