Wis.LIRC WC Decision: Armstrong - May 26, 1998 - ND � 5.23 - 85% Rule - Permanent Partial Disability - Wis. Stat. � 102.44.(6)(b), allowing reopening of a claim for a LOEC assessment when employe is terminated due to physical limitations, does not require that the physical limitations causing loss of employment be attributable to a work injury - but the assessment is limited to the effect of the work injury

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

BEVERLY ARMSTRONG, Applicant

HEYDE HEALTH SYSTEM INC, Employer

SECURITY INS CO OF HARTFORD, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1992034936

The respondent submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on November 26, 1997. The applicant submitted a answer to the petition. At issue is the applicant's claim for loss of earning capacity stemming from the work injury which occurred on May 19, 1992.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is December 10, 1933, was employed as a licensed practical nurse for the employer beginning in 1983. She sustained a conceded work injury on May 19, 1992, which was diagnosed as compression fractures at T- 7 and T-8. This resulted in 10 percent functional disability as found by the commission in a decision issued on August 8, 1996. A second hearing was held on October 6, 1997, to address the issue of loss of earning capacity.

The applicant went back to work almost immediately after her injury in May 1992, but only for three hours per day. She very gradually increased her hours back to full-time, but found that her back pain was too severe with the full- time schedule. On July 15, 1994, Dr. T. D. Zondag recommended permanent restrictions of working seven days out of every two-week period, with no more than two work days in a row. He also restricted her to occasional lifting up to 20 pounds, no bending, and minimal twisting and turning.

On July 21, 1994, the applicant "begged" Dr. Zondag to change her restrictions so that she could go back to full-time, due to financial considerations. Dr. Zondag complied and wrote in his clinic note that he was "changing his professional opinion" and allowing the applicant to return to full-time work. He restricted her to eight-hour days, no lifting over 20 pounds, occasional bending, and minimal twisting. A clinic note dated October 11, 1994, indicated that the applicant was reducing her full-time work schedule by taking a vacation day once every pay period.

On January 16, 1995, Dr. Zondag noted that the applicant had only been able to tolerate working nine days every two weeks, with a maximum of three days in a row. Dr. Zondag indicated that "presently" that schedule was the maximum she could tolerate.

On January 10, 1996, the applicant, who has osteoporosis, sustained nonindustrial compression fractures at T-12 and L-1. Dr. Zondag examined her on March 8, 1996, and concluded that these new fractures were not causally related to the 1992 work injury. On April 11, 1996, Dr. Zondag opined that the applicant is unable to return to LPN work, and can perform sedentary work fewer than four hours per day. He restricted her to lifting under five pounds from knees to shoulders, breaks once per hour, and no bending, twisting, or squatting. On April 2, 1996, the employer advised the applicant that it had no work available for her within these restrictions.

On October 17, 1996, Dr. Zondag wrote a letter to applicant's attorney indicating that prior to January 10, 1996, he believed the restrictions he gave on July 15, 1994, were the appropriate permanent restrictions. He further indicated that the more recent, more severe restrictions were the result of the nonindustrial injury of January 10, 1996. On April 8, 1994, Dr. Zondag had assessed ten percent permanent partial disability to each of the 1992 compression fractures, for a total of 20 percent permanent partial disability.

The applicant's vocational expert, Jeanne Krizan, assessed a 30 percent loss of earning capacity based on Dr. Zondag's restrictions of seven days work every two weeks. She assessed a 15 percent loss based on restrictions which would allow nine days of work every two weeks.

Respondent's vocational expert, Thomas Herro, found no loss of earning capacity. He reasoned that absent the nonindustrial injury, the applicant could have continued to work for the employer for nine days every two weeks, and that this would have resulted in less than a 15 percent wage loss. Pursuant to Wis. Stat. � 102.44(6)(a), when an injured employe returns to work with his employer for a wage amounting to 85 percent or more of his pre-injury wage, no loss of earning capacity is assessed.

The employer also argued that since the restrictions attributable to the nonindustrial injury were what caused the applicant to lose her employment with the employer, the applicant should not be entitled to a loss of earning capacity assessment. The employer concedes that Wis. Stat. � 102.44(6)(b), which allows a loss of earning capacity assessment when the employe's employment is terminated due to physical limitations, does not require that the limitations be those attributable to the work injury. However, the employer makes a rather convoluted argument that since compensation is payable only for service growing out of and incidental to employment (Wis. Stat. � 102.03 (1)(c)), and the applicant's nonindustrial injury does not fit within that definition, no compensation can be paid to her. The commission rejects this argument which does not rationally address the fact that Wis. Stat. � 102.44.(6)(b) does not require that the physical limitations causing loss of employment be attributable to a Chapter 102 injury.

The applicant did lose her employment with the employer due to her physical limitations. Assessment of loss of earning capacity is therefore appropriate, but the assessment is limited to the effect the work injury had on the applicant's earning capacity. In other words, in making the assessment it would be as if the applicant were left to look for work with the permanent restrictions attributable to her work injury, but without the restrictions attributable to her nonindustrial injuries.

Accepting Dr. Zondag's restrictions of January 16, 1995, the applicant would have missed one day of work every two weeks, and also had to pay an additional health insurance premium because she became classified as a part-time employe. It is a reasonable inference from the evidence that the applicant desired to work full-time for the employer, but was at best capable of a 90 percent schedule based solely on the restrictions given on January 16, 1995. These restrictions caused a significant reduction in her wages and benefits, and left her dependent to a large extent on the employer's ability to accommodate her restricted work schedule. The applicant is an older worker with a high school education and is a licensed practical nurse. She has worked as a sales clerk, pharmacy assistant, receptionist, nursing assistant, and LPN. On May 19, 1992, she was earning $9.47 per hour, and when she last worked for the employer her hourly rate (including shift differential) was $11.46. Since leaving the employer, she has worked for minimum wage in a part-time position at a hospital. She is also receiving social security disability benefits. It must be recalled that absent the restrictions attributable to the applicant's nonindustrial injuries, she would still be capable of working as an LPN, although only on a part-time schedule. Other than noting the fact that the applicant obtained the part-time job at the hospital, no testimony or other evidence was submitted concerning efforts to obtain suitable employment.

Considering all the relevant factors, including the medical and vocational opinions, the commission finds that the applicant sustained a 20 percent loss of earning capacity as a result of the work injury of May 19, 1992. The insurer previously paid 10 percent permanent partial disability leaving a balance due of 10 percent permanent partial disability, which amounts to 100 weeks of accrued compensation at the applicable rate of $144 per week. A 20 percent attorney's fee is due in the amount of $2,880, as well as $1,411 in costs.

Dr. Zondag credibly opined that additional medical treatment may be required, and therefore this order will be left interlocutory.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as accrued compensation the amount of Ten thousand one hundred forty-nine dollars ($10,149); and to applicant's attorney, Manlio G. Parroni, fees and costs in the total amount of Four thousand nine hundred twenty-one dollars ($4,921).

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

Dated and mailed May 26, 1998
armstbe.wsd : 185 : 8 ND � 5.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge and learned that it had no disagreements with his credibility impressions of the testimony given by the witnesses present at the hearing held on October 6, 1997. The commission found a 20 percent rather than a 30 percent loss of earning capacity based on analysis of the written medical and vocational opinions, as noted above; and particularly the fact that absent the nonindustrial injuries, the applicant could still have worked as a part-time LPN.

cc: Attorney David Castagna
Quartaro Castagna Even Cafaro

Attorney Manlio Parroni
Parroni Siedow & Jackson SC

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