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

ROBERT J DAVIS, Applicant

FLINT INK CORP, Employer

AMERISURE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1991051225

The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 10, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of July 9, 1991.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order except as herewith modified:

MODIFIED FINDINGS OF FACT

Delete the third sentence on page 5 of the administrative law judge's decision and substitute the following sentence therefor:

"The MRI was performed on July 31, 1991, and revealed a central disc herniation at L4-5."

All the other findings made by the administrative law judge are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the forgoing, and as modified are affirmed.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed June 29, 2000
davisro.wrr : 185 : 3  ND § 5.23

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission modified the administrative law judge's decision to eliminate reference to the 1991 MRI as showing an L4-5 disc herniation "to the left of midline," since the record does not contain such a description. The record does contain several descriptions of the L4-5 herniation as found in the 1991 MRI, including one from Dr. Aschliman describing a small, left-sided central disc herniation at L4-5.

The factors enumerated by the administrative law judge to explain why she found that the applicant sustained an L4-5 disc herniation in the work incident of July 9, 1991, are adopted by the commission. The disc herniation was documented by objective testing on July 31, 1991, and the applicant did continue to experience new back and left leg symptoms after the work incident. The medical opinions of Dr. Benson, Dr. Robbins, and Dr. Suberviola credibly link the applicant's surgeries to the work-related disc herniation and its sequelae.

Respondents argue that the applicant should not be found to be permanently and totally disabled due to his back condition, because he was allegedly permanently and totally disabled due to his skin condition before he had the second back surgery. The administrative law judge correctly found that no permanent disability or permanent restrictions were assessed for the applicant's skin condition prior to the final period of temporary disability for his back condition, which extended from July 1, 1996 to August 6, 1997. Furthermore, the only permanent restrictions ever assessed for the skin condition were proffered by Dr. Herzenson in response to respondents' request for an independent medical opinion. Even Dr. Herzenson's restrictions are not those which would lead to a finding of permanent total disability, i.e., avoiding thick or waterproof boots, avoiding heavy gloves, avoiding hot environments and chemical exposure and a minimum of strenuous work.

The commission's review of the record indicates that the applicant had a good deal of trouble with his skin/foot condition, missed much work because of it, and certainly continued to have problems with it. But he also managed to continue working until the employer laid him off in May of 1994, and none of his physicians ever said that his skin condition would prevent him from tolerating all work environments. Dr. LeFeber, whom respondents rely upon in their brief, opined at one point:

""We are finding that if we continue treating his feet to control his hyperhidrosis which contributes to recurrence of his rash, that he can remain at work and may only have periodic flare-ups, or may have no flare-ups at all in the future."

The commission concurred with the administrative law judge that it was not demonstrated that the applicant's skin condition permanently and totally disabled him.

Respondents next argue that no temporary total disability is due for the period between July 1, 1996 and August 6, 1997, because as of July 1, 1996, the applicant had been unemployed for over two years and was therefore not entitled to a "wage replacement benefit." This argument is closely related to the assertion that the applicant was unemployable at this time anyway, due to his skin condition. On July 1, 1996, Dr. Suberviola opined that the applicant could not work due to his back condition, and whether or not he had been employed for the previous two years, he was temporarily totally disabled due to his back condition as of that date. Respondents refer to Exhibit 27 for support for their assertion that the applicant was totally disabled during this period due to his skin condition, but review of that exhibit does not show any medical support for this argument.

Next, respondents argue that Dr. Hackett's report assessing ten percent permanent partial disability is not in the record, so the administrative law judge erred by referring to that assessment. However, Dr. Goldsmith and Dr. Aschliman both refer to Dr. Hackett's ten percent assessment in their opinions, thus supporting the administrative law judge's finding.

Respondents argue that the applicant's claim for loss of earning capacity is barred by Wis. Stat. § 102.44(6), because the applicant was laid off in May 1994 due to economic downsizing, which respondents assert amounts to good cause. However, Wis. Stat. § 102.44(6)(b) allows for reopening of the loss of earning capacity award if a wage loss of 15 percent or more occurs for any reason. The applicant's layoff caused such a loss. The defense of "good cause" may be applicable to a discharge for misconduct or a refusal of work, not to a layoff.

Finally, respondents argue that the applicant should be ineligible for loss of earning capacity under Wis. Stat. § 102.44(6)(g), because he "refused" an alleged offer of employment from the employer on July 18, 1994. This alleged offer was made in a letter found at Exhibit 46. It contains notification of the fact that a position is open for shipping/receiving/driver, and that an applicant must show the appropriate aptitude in order to qualify for the position. It advises the applicant to notify the branch manager if he would like to be "considered" for the position. An actual offer of employment requires more than mere notification of a job opening. This is particularly true of an opening which requires that undefined qualifications be met before an applicant would be accepted for the job. Based on the facts of record, the applicant did not refuse an offer of employment from the employer.

cc: ATTORNEY LISA C PAUL
CROEN & BARR LLP

ATTORNEY CHRISTOPHER D WALTHER
WALTHER LAW OFFICES SC

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