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

DEBBIE KAINZ, Applicant

JH COLLECTIBLES INC, Employer

HOME INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94009986

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 February 29, 1996
kainzdo.wsd : 101 : 8 ND § 5.39

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In its petition, the employer does not contest that part of the ALJ's order requiring payment of temporary total disability to February 28, 1995 or payment of permanent partial disability at five percent compared to permanent total disability. The only issue here is eligibility for, and extent of, vocational rehabilitation benefits under secs. 102.43 (5) and 102.61, Stats. Specifically, the employer asserts that the applicant should be ineligible for vocational rehabilitation benefits for refusing an offer of work and that, in any event, the benefits should be limited to the first forty weeks of retraining.

a. The law.

Sections. 102.43 (5), Stats., have recently been amended by 1993 Wis. Act 370. That act's general effective date is May 4, 1994. With one exception, the act sets out no special initial applicability or effective date provisions for specific statutory amendments. Under the single exception set out in new sec. 102.61 (1m)(b), Stats., a worker whose injury occurred before May 4, 1994 may be referred to a private rehabilitation counselor. Otherwise, changes are governed by sec. 102.03 (4), Stats., which provides that the right to and amount of compensation is to be determined on the basis of the law in effect on the date of injury. In this case, the date of injury was January 20, 1994, so the changes under 1993 Wis. Act 370 do not apply.

Section 102.61 (1), Stats., states that "an employe who is entitled to receive and has received compensation under this chapter and who is entitled to and is receiving instruction under the vocational rehabilitation act shall be paid travel and maintenance expenses." Under sec. 102.43 (5), Stats., an employe also is considered to be temporarily disabled while receiving instruction as part of vocational rehabilitation under sec. 102.61, Stats. Benefits under both sections are subject to a 40-week limit (1), but limit may be extended if the department determines further training is warranted.

The department and the commission determine whether a worker is entitled to and has received compensation under ch. 102, Stats. The next question is whether the employe is entitled to instruction under the federal vocational rehabilitation act, as amended. Absent special circumstances, the department and the commission are bound by determination of the Division o Vocational Rehabilitation (DVR) (2) on this issue. In Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 2d 505, 512 (1957), the court wrote:

"... it does not seem that that legislature intended to give the Industrial Commission any power to interpret the rehabilitation laws. We conclude that any power of review given to the Industrial Commission is limited.

"Unless it is shown before the commission that highly material facts were misrepresented to or withheld from the state board [now 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 & Ins. Co. v. Industrial Commission, 275 Wis. 505, 512 (1957). This limit on the power of the department and the commission vis-à-vis DVR applies only to the first forty weeks of vocational rehabilitation benefits under sec. 102.43 (5), Stats.

The primary purpose of vocational rehabilitation in worker's compensation cases is to restore earning capacity and potential, not simply replace lost wages. Section Ind 80.49, Wis. Adm. Code. The fact that a worker's vocational retraining may result in higher wages than he had before the injury does not mean it was an abuse of discretion to authorize such retraining. In Beloit Corporation v. LIRC, 152 Wis. 2d 579, 590 (Ct. App., 1989), the court noted that while the vocational retraining may increase an applicant's earning capacity above the pre-injury level, that alone did not make it unreasonable. The court specifically noted that vocational retraining is undertaken to restore earning potential, as well as earning capacity. Beloit, at 591.

b. Abuse of discretion in this case?

In this case, the commission sees no abuse of administrative power by DVR counselor Dahl. She adequately explained why she chose paralegal retraining. True, the average wage for paralegals is somewhat of an increase over the applicant's pre-injury wage, but the starting wage of MATC-trained paralegals is in fact lower than the applicant's pre-injury wage. In light of Beloit Corporation, the commission is not inclined to find an abuse of administrative power simply on the fact that the applicant might one day make more than her pre-injury wage for the employer. The commission also notes that retraining choices offered by the employer's expert, Ms. Engebose, all paid less than the applicant's pre-injury hourly wage. In short, the fact that Ms. Engebose may disagree with the DVR counselor Dahl's choice of paralegal retraining for the applicant does not make that choice an abuse of administrative power.

Nor can the commission conclude DVR counselor Dahl acted in abuse of administrative power based on the employer's March 28, 1995 letter offering the applicant a job. As part of her duties, Ms. Dahl had contacted the employer in October 1994 and been told it was unlikely the employer would rehire the applicant. Thereafter, the applicant, with DVR assistance, looked for work with other employers. Further, counselor Dahl provided convincing reasons why the applicant should not take the temporary job. Finally, the job offer was dated after counselor Dahl wrote her individualized written rehabilitation plan (IWRP) on March 27, 1995.

Under these circumstances, an offer of re-employment, particularly temporary employment coming after a certification for vocational retraining, need not be accepted by the applicant or risk losing vocational retraining benefits. In reaching this decision, the commission also emphasizes this aspect of the case does not involve "regular" temporary total disability paid while an applicant is still healing from a work injury. This case involves vocational retraining benefits under sec. 102.43 (5) and 102.61, Stats.

The next issue is whether the commission should limit the applicant's benefits to 40 weeks. On this point, the commission is not bound by the DVR's determination. The commission also appreciates Ms. Engebose testimony that the applicant could complete paralegal training more quickly in a private school. On the other hand, the commission is not willing to conclude that the five semester program offered by MATC is unreasonably long, and the ALJ carefully limited the employer's liability to five semesters during each of which the applicant must meet certain academic standards. Further, the fact the vocational rehabilitation law, as amended, provides a mandatory 80 weeks indicates that five semesters is a reasonable period for vocational retraining.

cc: ATTORNEY ISRAEL RAMON
SHNEIDMAN MYERS DOWLING & BLUMENFIELD

ATTORNEY STANLEY J LOWE
WHITE & LOWE

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Footnotes:

(1)( Back ) This is increased to 80 weeks under the new law.

(2)( Back ) DVR is currently a subunit of the Department of Health and Social Services. See generally, ch. 47, Stats.