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

FRANK LUKSIC JR, Applicant

HARNISCHFEGER CORPORATION, Employer

HARNISCHFEGER CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1997-000124, 1997-033353

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 8, 1999. The employer submitted an answer to the petition and briefs were submitted by the parties. Although it did not submit a petition, in its brief, the employer asserted that the administrative law judge erred in awarding 60 percent loss of earning capacity.

At issue are whether the applicant sustained a cervical injury arising out of and in the course of his employment with the employer, and nature and extent of disability attributable to the conceded low back injury of October 14, 1996.

The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is May 24, 1952, was employed as loader and overhead crane operator. This included heavy lifting and frequent bending, stooping, and reaching. On March 13, 1989, he was using a crowbar to separate wood from a railroad flatcar. He was bent over and pounding on the crowbar when he felt a "shot" through his left arm. He was seen by Dr. M. Shivaram on April 10, 1989, and the complaint recorded was a left wrist injury while using a crowbar at work on March 13, 1989. Symptoms recorded were left wrist and forearm pain. Dr. Shivaram subsequently ordered EMG and nerve conduction studies of the upper extremity and they were positive for C7-8 nerve root irritation.

On June 5, 1989, Dr. Shivaram noted the applicant was feeling "a lot better" and discharged him from follow-up. However, the applicant returned on June 27, 1989, with a complaint of recurrent pain on the right side of the neck. Another EMG nerve conduction study performed on November 24, 1989, was interpreted by Dr. Shivaram as evidence of borderline cubital tunnel syndrome.

The applicant testified that he has experienced intermittent neck problems from March 13, 1989 forward. He complained to the employer's nurse about neck problems in September 1995, but continued to work. On September 9, 1996, he saw Dr. James Leonard for evaluation of left neck and shoulder pain. Dr. Leonard recorded that "increasing pain" started in September 1995, but that his original injury was in 1989. Dr. Leonard ordered a cervical MRI on October 21, 1996, which was normal.

The applicant stopped working on October 14, 1996, primarily due to low back and left leg pain. He began treatment with Dr. Harvey Kohn and a herniated disc was diagnosed at L5-S1. Dr. Kohn referred the applicant to Dr. James Stoll, who performed a left L5-S1 hemilaminotomy and discectomy on January 24, 1997. This is conceded as a work-related injury. The result of this surgery was good, and on September 15, 1998, Dr. Stoll completed a functional capacities evaluation which allowed continuous lifting up to 20 pounds and frequent lifting between 21 and 50 pounds.

The applicant reported increasing neck pain after starting physical therapy subsequent to the lumbar surgery. Dr. Stoll ordered EMG/nerve conduction studies which showed evidence of chronic C6-7 radiculopathies. Dr. Stoll opined that this indicated an old injury with no active, ongoing process. An MRI done on May 5, 1997, showed possible mild narrowing of the neural foramina at C3-4, but no disc herniation. Dr. Stoll referred the applicant to a pain clinic.

On August 14, 1997, the applicant began treating with Dr. Dennis Maiman. Dr. Maiman diagnosed cervical instability at C3-4, and on October 8, 1997, performed a cervical fusion procedure with wiring from C3 to C5. The result of this surgery was not good, and the applicant has continued to experience significant neck pain. He returned to limited, part-time work for a short period after the neck surgery, but was permanently laid off on February 27, 1998. He subsequently sought employment without success.

In January 1998, the applicant was referred by Dr. Maiman to Dr. Diane Braza for postoperative rehabilitation. Dr. Braza opined that assuming the applicant's history is correct, the applicant's neck condition is a work-related injury.

At the employer's request, Dr. Charles Klein examined the applicant and submitted a report dated May 5, 1999. He diagnosed chronic neck pain post C3 to C5 fusion, chronic low back pain post L5-S1 discectomy, and psychological factors affecting the applicant's physical condition. Dr. Klein opined that the applicant did not sustain a significant injury to his cervical spine as a result of the work injury of March 13, 1989. He questioned whether the applicant had any significant instability in his cervical spine, and opined that any such instability was not likely the source of the applicant's complaints. He also opined that the current neck pain was likely of myofascial origin with a psychosomatic component. Dr. Klein further stated that he did not have the applicant's job description, but if it is a job of a heavy or very heavy nature, it is possible the job exposure represents a contributing, causative factor in the onset of the applicant's neck condition. Subsequently, Dr. Klein was provided with a job description and opined that the applicant's neck condition was not caused by occupational exposure. Dr. Klein assessed 10 percent permanent partial disability to the cervical spine and 5 percent to the lumbar spine. He also assessed medium work restrictions (occasional lifting up to 50 pounds, frequent lifting up to 25 pounds) attributable to the neck injury, and the same restrictions attributable to the low back injury.

Dr. Maiman wrote a letter dated July 30, 1999, in which he disagreed with Dr. Klein's opinion. Dr. Maiman stated that he and Dr. Stoll concurred that the neck injury was "precipitated by" the applicant's employment. As previously noted, Dr. Braza also opined that the applicant's neck condition was work-related, based on the history she was given. The commission, consistent with the findings made by the administrative law judge, is left with a legitimate doubt that the applicant's cervical condition is causally related to his employment with the employer. The medical records dating back to the 1989 incident are not consistent with a permanent cervical injury. The applicant was able to return to work without restrictions after the 1989 incident. The medical causation opinions concerning this condition, and submitted on behalf of the applicant, are vague with regard to the alleged link between the condition and the applicant's employment with the employer. Dr. Klein's opinion is credible.

Dr. Stoll's low back restrictions assessed on September 19, 1998, allow frequent lifting of 21 to 50 pounds, and frequent bending and twisting. These are medium work restrictions. They are the restrictions attributable only to the low back injury. Applicant's vocational expert, Jackie Roman, assessed 60-65 percent loss of earning capacity based on Dr. Stoll's restrictions, but she did so based on Dr. Stoll's 1997 restriction of a 30-pound lifting limit. Respondent's vocational expert, Ronald Iwinski, assessed 25 percent loss of earning capacity based on Dr. Stoll's medium work restrictions.

The applicant was earning $19.50 per hour when injured in 1996. Therefore, he lost a high paying job in which he had invested 20 years of his working life. He emigrated from Croatia to the United States at the age of 17, and had attended eight years of school in Croatia. He obtained U.S. citizenship in 1974 and successfully completed the high school equivalency test in 1995 or 1996. Testing shows average intelligence but low reading and math scores. He worked as a carpenter's helper, grinder, janitor, and forklift operator before coming to the employer. He enrolled in a remedial education program at Milwaukee Area Technical College in January 1999, but withdrew after being informed that he would need three to four years of remediation prior to achieving levels required for starting an associate degree program. He conducted job searches in conjunction with his unemployment insurance claims, but was not successful. The applicant has little in the way of transferable skills, poor English language skills, and a bad low back. It is inferred that he is likely to continue having difficulty finding work within his medium restrictions, and that when he does find work, it will be at a significantly lower rate of pay than he earned with the employer. The commission recognizes that Ms. Roman's assessment of 60-65% loss of earning capacity was based on an incorrect functional capacity rating. However, after considering all the applicant's circumstances, and assuming only the medium work restrictions attributable to the low back injury, the commission finds that he sustained a 60 percent loss of earning capacity as a result of his low back injury of October 14, 1996.

The administrative law judge offset the compensation paid for the applicant's neck claim against the compensation due for the low back claim. There is no authority in Chapter 102 for making an offset of compensation paid for one claim against compensation due for a different claim. Offsets of temporary disability against permanent disability, or vice versa, are routinely made when the payments represent compensation due for the same claim. This is done under the statutory authority to compute the amount of compensation due for a particular claim. But there is no authority to subtract compensation mistakenly paid for one claim (which in the applicant's case was not determined to have been a compensable claim) from the compensation due for a separate (and in this case compensable) claim. In fact, to make such an offset would be contrary to Wis. Stat. § 102.27(1).

Accordingly, the applicant is entitled to 600 weeks of permanent partial disability at the rate of $169.00 per week, less a 20 percent attorney's fee and $836.01 in costs. To date, the employer has paid an undetermined amount of permanent partial disability towards its liability for the low back injury. The record before the commission indicates that an amount equivalent to 5 percent permanent partial disability was conceded and paid as attributable to the low back injury, and that there have been ongoing payments of permanent partial disability. Rather than speculate as to the exact amount currently owed the applicant and his attorney, the commission will remand the matter to the Worker's Compensation Division for calculation of the exact amounts due in accordance with the commission's findings.

Jurisdiction will be reserved with respect to additional medical treatment which may be reasonably required by the applicant's low back injury, and with respect to any dispute which may arise over the amount the employer has paid towards permanent partial disability attributable to the applicant's low back injury.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The administrative law judge's Findings and Interlocutory Order are affirmed in part and reversed in part. The matter is remanded to the Worker's Compensation Division for calculation of the accrued and unaccrued permanent partial disability due the applicant, less attorney fees and costs, in accordance with the above findings.

Jurisdiction is reserved with respect to additional medical treatment which may be required due to the applicant's low back injury, and with respect to any dispute which may arise over the amount the employer has paid towards permanent partial disability attributable to the applicant's low back injury.

Dated and mailed February 23, 2000
luksifr.wrr : 185 : 2 ND § 5.42

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission affirmed the administrative law judge's decision, except with respect to his offset of compensation mistakenly paid for the applicant's cervical claim against compensation due for the low back claim. This reversal was done as a matter of law and did not involve any credibility impressions of the hearing witnesses.

 

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT LIEB & WEIR SC

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The administrative law judge and the commission have found that the applicant's back injury was work related but that his neck injury was not work related. Exhibit C is the applicant's vocational report of March 16, 1999. Jackie Roman found that "Mr. Luksic has sustained both low back and neck injuries as a result of his employment at Harnischfeger.On the basis of the back injury, Dr. Stoll has advised that he may lift no more than 30 pounds and should avoid repetitive bending and twisting activities. These restrictions limit Mr. Luksic to sedentary and light work. On the basis of the neck injury, Dr. Dennis Maiman recommended that Mr. Luksic perform limited bending/twisting of the neck, repetitive lifting over 20 pounds, or pushing/pulling, and carrying over 20 pounds. These restrictions are also compatible with the performance of sedentary and light work.In limiting Mr. Luksic to employment of a sedentary and light nature (Dr. Stoll, Dr. Maiman, Dr. Pollack) and further considering his age, education, work experience, and transferable skills, it is my opinion that he would be an appropriate candidate for occupations such as a small parts assembler, cashier, light cleaner, file clerk, hotel clerk, mail clerk, courier/messenger, packager, retail sales clerk, security guard, telemarketer, etc.it is my opinion that he has sustained a loss of earning capacity in the range of 60-65 percent."

The majority finds that the applicant's loss of earning capacity is at 60% or the lower number of Roman's report which included the neck injury and limited the applicant to sedentary and light work. She also used an early report of Dr. Stoll which was more restrictive than his later report which allowed the employe to lift 21-50 pounds on a frequent basis and allowed frequent bending and twisting. Those restrictions would be medium work.

Exhibit 7 by Ronald Iwinski, the respondent's vocational expert found a 25-30 percent loss of earning capacity using Dr. Stoll, Dr. Klein and Dr. Braza. Mr. Iwinski did not mention his education as a factor so I would be willing to add 10% to his loss of earning capacity based on his educational and language problem even though he did successfully complete his high school equivalency test. Thus, I would allow a 40% loss of earning capacity which includes loss of access to jobs he had previously been able to do. I believe the applicant's neck problem which restricts him more than his back may be a major factor in why he has been unable to find work.

For these reasons, I would modify the loss of earning capacity to 40%.

_________________________________________
Pamela I. Anderson, Commissioner

Appealed to Circuit Court. Affirmed January 29, 2001.

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