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

MYA JOHNSON, Applicant

VISITING NURSE ASSOCIATION OF APPLETON, Employer

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91051562

The administrative law judge issued his Findings of Fact and Order in this case on September 27, 1994, following a hearing on April 8, 1994. The applicant submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, the applicant submitted a brief on its petition. The employer and the insurer (collectively, the respondent) chose not to respond, and informed the commission it did not object to a decision rendered on the record.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $253.15, and an August 15, 1991 compensable injury. The respondent conceded and paid temporary disability to May 11, 1992 in the amount of $1,711.33, and permanent partial disability at 3 percent compared to permanent disability to the body as a whole in the amount of $4,110.

The issues are the whether the applicant is entitled to benefits under sec. 102.43 (5) and 102.61, Stats., and the respondent's liability for certain medical expenses.

The commission has carefully reviewed the entire record in this case. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby reverses his Findings of Fact and Order and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant suffered a work injury to her back on August 15, 1991. On April 1, 1992, she was released to return to work as a nursing assistant by her doctor, Dale Eggert, M.D. In issuing the release, Dr. Eggert adopted the terms of a functional capacity report prepared by K. Linskens, OTR, of Workers' Rehabilitation Program on March 25, 1992. The functional capacity report stated the applicant could at least occasionally bend, stoop, squat, twist, crawl, climb stairs and ladders, push or pull up to 40 pounds, and kneel. The report also stated that the applicant could occasionally lift and carry weights up to 60 pounds. The employer then offered the applicant nursing assistant work, which it contended would be within this restriction. The applicant refused most of these assignments, and instead accepted only a couple of light duty home companion assignments.

Mara Proft is a vocational counselor who works for Workers Rehabilitation Program and was apparently part of the team that prepared the functional capacity report for Dr. Eggert's eventual signature. In a letter dated March 27, 1992, Ms. Proft opined that the applicant would be able to return to work as a nursing assistant within the restrictions set out in the report. In reaching her opinion, Ms. Proft noted that the nursing assistant work is considered medium duty work.

The applicant applied for services from the division of vocational rehabilitation (DVR) in the department of health and social services in April 1992. At the time, the DVR had the functional restriction report from Workers Rehabilitation Program, but it is not clear whether it had the letter from Ms. Proft. At any rate, the DVR counselor, Kristine Mazur, concluded that the employer had no work for the applicant within her restrictions, other than the part-time assignments she was given. After a work search turned up no full time work for the applicant, DVR counselor Mazur eventually certified her for retraining as a occupational therapist assistant pursuant to an individualized written rehabilitation report dated December 22, 1992.

Ms. Mazur testified that she disagreed with Ms. Proft's opinion that the applicant could do nursing assistant work for the employer with her restrictions. She stated that, given her knowledge of nursing assistant work from the Dictionary of Occupational Titles and contact with other clients, such work is very strenuous. She stated the work requires frequent bending, stooping and lifting, with occasional kneeling.

Ms. Mazur also testified that the employer's nursing assistant work would require lifting over 60 pounds. She testified that this was backed up by the "work history" completed by the employer's extended care supervisor. See Exhibit A. Counselor Mazur's characterization of the work history as establishing lifting over 60 pounds is not completely accurate. However, the history does indicate "frequent" lifting of 50 pounds, which appears to be beyond the applicant's restriction to occasional lifting of that weight.

The extended care supervisor, Geri Cooper, RN, testified that she believed the work the employer offered the applicant was within her restrictions. Ms. Cooper admitted stating on the "work history" that the applicant would have to be able to lift 50 pounds frequently, but testified that nurse's aides are not required to lift more.

Once the department or the commission finds a work injury causing permanent disability or restrictions, those agencies must generally defer to DVR's determination as to whether the injured worker is eligible for vocational retraining. Thus, if DVR certifies a worker for retraining, the worker is eligible in most cases for vocational rehabilitation benefits under sec. 102.43 (5) and 102.61, Stats. Massachusetts Bonding & Ins. Corp. v. Industrial Commission, 275 Wis. 505, 512 (1957).

There are two circumstances under which the commission or the department may still deny vocational rehabilitation maintenance benefits to a worker who has suffered permanent disability or restriction from a work injury, even if he or she is certified for retraining by DVR:

1. DVR's interpretation of the vocational rehabilitation law is entirely outside the scope of reasonable interpretation and so a clear abuse of administrative power; or

2. Highly material facts were misrepresented to, or withheld from, DVR during the certification process.

The Supreme Court set out these guidelines in Massachusetts Bonding based on its belief that the legislature did not intend to give the Industrial Commission (and its successors, the department and the commission) more than limited power to review decisions under the federal rehabilitation laws made by DVR's predecessor agency. The court went on to state:

"Unless it is shown before the commission that highly material facts were misrepresented to or withheld from the state board [DVR] or that the state board has applied an interpretation of the rehabilitation laws which is entirely outside the reasonable scope of interpretation and hence a clear abuse of administrative power, the Industrial Commission must find that any applicant who is receiving aid from the state board is also entitled to it."

Massachusetts Bonding, 275 Wis. 512.

After the Massachusetts Bonding decision, the department promulgated sec. Ind 80.49 (3) Wis. Adm. Code, which provides that "the determination of whether an industrial injury creates a necessity for vocational rehabilitation training is the responsibility of the workers compensation division." The code goes on to state that a worker whose permanent partial disability rating entitles him to 100 weeks or more would be eligible for maintenance benefits during vocational rehabilitation, while a worker whose injury entitled him to less than 100 weeks is presumptively ineligible.

However, the court of appeals has stated that sec. Ind 80.49 (3), Wis. Adm. Code, may not be interpreted in a manner that conflicts with DVR's authority under the vocational rehabilitation laws or with sec. 102.61 as construed by the supreme court in Massachusetts Bonding. The court of appeals suggested that application of sec. Ind 102.49 (3), Wis. Adm. Code, was limited to determining eligibility for maintenance benefits after the first 40 weeks under sec. 102.43 (5), Stats. Dane County Hospital and Home v. LIRC, 125 Wis. 2d 308, 325-26 (Ct. App., 1985).

The commission has consistently followed this line of reasoning, and declined to apply sec. Ind 80.49 (3), Wis. Adm. Code "presumptions" to determine eligibility in the first 40 weeks. John J. Clark v. Norplex Oak Inc., claim no 91061666 (LIRC, March 23, 1994); Virgil Smith v. Ashley Furniture Industries, claim no. 88057224 (LIRC, April 30, 1992).

The commission sees no evidence that highly material facts were misrepresented or withheld from DVR. The initial question before the commission, therefore, is whether Counselor Mazur acted in abuse of administrative power by certifying the applicant for retraining.

The first possible basis for abuse would be Ms. Mazur's opinion that the applicant could not return to work for the employer. This is not answered simply by Dr. Eggert's release to work as a nurse's aide; the doctor conditioned that release on the work not exceeding the applicant's restrictions. The issue of whether the work the employer had for the applicant in fact exceed those restrictions is a matter of disagreement between Ms. Mazur, Ms. Proft and Ms. Cooper.

The commission concludes Ms. Mazur did not abuse administrative power in determining the applicant should not return to work for the employer. First, the record indicates that Ms. Mazur's decision on this point was carefully considered. It was also supported by Ms. Cooper's testimony and written work history to the effect that the type of work offered the applicant required frequent lifting of up to 50 pounds.

The commission also considered the applicant's efforts to find work within her restrictions, the record indicates that the applicant and DVR conducted an unsuccessful search for such work. After reviewing the record on this point, the commission cannot conclude that Ms. Mazur abused administrative power by not requiring the applicant to undertake a more aggressive job search.

The next question is the extent of vocational rehabilitation benefits appropriate to award. Counselor Mazur's IWRP provided for retraining as an occupational therapy assistant, and the applicant had begun that coursework at a technical college as of the date of the hearing. Given the applicant's vocational history, the nature of her injury and restrictions, and her aptitude for the retraining certified under the IWRP, the commission concludes training beyond forty weeks is warranted. The commission therefore concludes that the applicant should be eligible for maintenance costs under sec. 102.61, Stats., and disability payments under sec. 102.43 (5), Stats., for a period of not more than 80 weeks. However, the record does not contain enough information to permit the commission to calculate the exact amount of temporary disability or maintenance costs accrued to the date of hearing. Therefore, the applicant shall submit to the insurer a claim for the accrued benefits, which the employer shall pay within 30 days of receipt, unless it disputes the dollar amount claimed.

The final issue is the reimbursement of medical expenses. The applicant incurred and paid $84 for treatment at the Orthopedic Clinic of Appleton which was reasonable and necessary to cure and relieve the effects of the work injury. She is entitled to reimbursement in that amount. The commission declines to award reimbursement of expenses incurred or paid from the Valley Ortho Clinic or Shopko Pharmacy for the same reason they were denied by the administrative law judge: the applicant has not established they were related to the work injury. Further, the applicant did not raise this issue in her petition.

Jurisdiction is retained to permit the department to review and reevaluate the applicant's claim under secs. 102.43 (5) and 102.61, Stats., including the dollar amount of the benefits awarded hereunder, subject to the 80-week limit in this decision. Jurisdiction is also retained for future medical expenses and to provide the applicant an opportunity to prove additional permanent disability following the completion of vocational retraining.

NOW THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is reversed. Accordingly, the applicant is eligible for temporary disability and maintenance costs under secs. 102.43 (5) and 102.61, Stats., while receiving instructions under the vocational rehabilitation act, as amended, for a period of not more than 80 weeks. The temporary disability and maintenance costs shall be computed by the applicant and paid by the respondent as set out above.

Within 30 days from the date of this order, the respondent shall pay the applicant the sum of Eighty-four dollars and no cents ($84.00) as reimbursement of medical expenses.

Jurisdiction is retained to make further orders and awards consistent with this decision.

Dated and mailed June 30, 1995
ND � 5.39

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The commission, however, does not reverse on the basis of a different assessment of witness credibility or demeanor, but rather on the degree of deference owed to DVR's certification decision under Massachusetts Bonding.

cc: ATTORNEY STUART J SPAUDE

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

Appealed to Circuit Court. Affirmed June 4, 1996.

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