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

STEVEN MAND, Applicant

QUAD GRAPHICS, Employer

HOME INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93004055

The administrative law judge issued his findings of fact and interlocutory order in this case on April 4, 1994, following a hearing on July 13, 1993. The applicant submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $366.09, and a February 15, 1991 compensable injury. The issues heard at the hearing included the applicant's entitlement to vocational rehabilitation benefits under sec. 102.43, Stats., for the first 40 weeks of instruction, and to additional vocational rehabilitation benefits beyond 40 weeks. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting with the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact, conclusions of law and order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began working for the employer in August 1990. He was a "jogger," which involved repetitive lifting of stacks of books on to pallets and loading presses with paper. The applicant's work involved "lots" of bending, twisting and lifting according to the employer's job description. About a month after starting work, in September 1990, the applicant began experiencing pain along the "ulnar borders" of both hands. The applicant was placed on light duty sweeping floors at his normal rate of pay in November 1990. He understood this was to be a temporary assignment.

EMG testing was done in November 1990 and January 1991. The November test was normal. However, the January 1991 test showed prolonged sensory latencies and was compatible with sensory neuropathy. Exhibit A, pages 37-40.

On February 15, 1991, he saw John Welsch, M.D., on referral from the respondent. Dr. Welsch noted decreased sensation along the ulnar nerve distributions, some tenderness in the wrist and a positive Tinel's sign at both elbows. He diagnosed bilateral ulnar nerve entrapment with irritation certainly associated with his work activities. He allowed the applicant to work, provided he did no repetitive work with his hands and did not lift more than 20 pounds. The restrictions applied for a month.

The applicant continued on light duty sweeping floors and cleaning presses. On March 18, 1991, the applicant again saw Dr. Welsch, who noted a definite improvement since a change in job positions. However, the applicant still experienced some pain and persistent numbness and tingling. Tinel's sign was still positive. Dr. Welsch diagnosed resolving bilateral ulnar nerve neuritis, secondary to work. He released the applicant from his care with indefinite restrictions against lifting more than 20 to 50 pounds and against work involving repetitive use of his hands. In a note dated March 18, 1991, Dr. Welsch stated:

"I believe that it would be in this patient's best interest not to return to the repetitious type of work that initially caused this, also, to be more careful in the future with other repetitious work.

"There should be no permanent residual associated with this, as long as he can avoid activities which would cause ulnar nerve irritation."

Dr. Welsch also completed a practitioner's report dated May 11, 1992. In his report, he stated that the applicant could not use his hands for repetitive work or lift more than 20 pounds. He referred to attached notes for a description of the work accident or exposure that the applicant attributed to his conditions and for a description of the applicant's disability and diagnosis. The notes describe the applicant's work as a jogger, and include the March 18, 1991 note quoted above. Another attached note, dated March 9, 1992, gives a diagnosis of "overuse syndrome involving the flexor tendons of both wrists with a transient ulnar neuritis bilateral." Finally, Dr. Welsch opined that the applicant's work directly caused his disability and that an appreciable period of workplace exposure was either the sole cause or a material contributory factor in the onset or progress of the applicant's condition.

Meanwhile, the employer laid the employe off in March 1991 because it had no work available within the restrictions imposed by Dr. Welsch on March 18, 1991. Exhibit A, page 29. The employer told him he would receive long term disability benefits and advised him that worker's compensation was not necessary. The applicant received disability of $702 per month for one year from CNA Insurance Companies, the employer's long term disability insurer (not the worker's compensation insurer). He also received unemployment compensation, beginning in March 1991. As part of the unemployment compensation program, the applicant sought work. He testified he applied at six employers each week, looking for work everywhere within an hour's drive of his home.

The applicant saw another doctor, M. J. Rieder, M.D., again at the request of CNA in August 1991. Dr. Rieder noted that the normal November 1990 EMG "does not rule out mild ulnar nerve involvement" (but he did not mention the January 1991 EMG that was compatible with ulnar neuropathy.) He stated that the applicant was not disabled "in that he is capable of performing many occupations for which he is suited by his education, training and experience." The doctor went on to note:

"With respect to his job as a jogger, however, the following comment is made. Steven could return to this job and would be able to carry it out physically, but should he do so, his symptoms will most certainly return and he might well sustain permanent ulnar nerve damage. Therefore, it would be highly advisable for him not to return to his job as a jogger. . . The activity that should be avoided is any activity where he is flexing and extending the forearms which results in repetitive bending at the elbows. The only other restriction I would offer would be with respect to lifting and carrying . . . [which] might also aggravate the ulnar nerve problem. I would put some minimal restrictions, therefore, in this regard to frequently lifting and carrying weights of 20 to 50 pounds, and occasionally carrying and lifting weights of 50 to 100 pounds."

Exhibit 1. The employer did not offer the applicant work within these restrictions.

The applicant did see one more doctor, T. J. Park, M. D., in April 1992, on referral from DVR. Dr. Park diagnosed chronic tendinitis of flexors of both wrists and probable right ulnar compression neuropathy at the elbow. He opined that the condition was caused by cumulative trauma, noting the applicant's repetitive work as a jogger. Dr. Park believed the applicant had not yet plateaued, but that with "aggressive treatment" he could clear up the ulnar compression neuropathy or at least increase his functional capacity.

Meanwhile, at CNA's recommendation, the applicant applied for vocational rehabilitation at DVR in July 1991. He stated on his evaluation that he suffered an industrial injury but did not receive workers' compensation. Exhibit B, page 79, question 31. He was evaluated, and testified at the hearing that his DVR counselor told him he tried to find work for the applicant. The counselor, Gary Liebert, apparently thought CNA was a worker's compensation insurer following his contact with the applicant on August 28, 1991. Exhibit B, page 41. Counselor Liebert wrote to CNA on September 21, 1991, and told them about the pending evaluation for DVR services. Exhibit B, page 31. He eventually learned that the applicant was not receiving worker's compensation from CNA. Exhibit B, page 40.

The applicant was given vocational and physical capacity evaluations. The vocational testing put him the 99th percentile by intelligence and rated his reading, vocabulary, spelling, and arithmetic skills as high. The physical capacity testing showed the applicant capable of medium duty work, although the ulnar problems were also noted.

On December 10, 1991, DVR counselor Gary Liebert prepared an individualized written rehabilitation program (IWRP). The program's objective was to complete training leading to baccalaureate degree and competitive employment. Tuition fees and books were to be paid for four years. The applicant's goal is to be a physical science teacher.

However, counselor Liebert did not follow DVR's normal procedures for worker's compensation cases, even though the applicant noted on his application for DVR services that he had a work injury and Mr. Liebert initially thought CNA was a worker's compensation insurer. Counselor Liebert testified he did not treat the applicant's case as a worker's compensation case because of a mix-up. Specifically, if Mr. Liebert had treated the applicant's case as a worker's compensation case he would have:

1. Contacted the worker's compensation insurer (Home Indemnity Company) and the employer;

2. Determined whether the applicant could have returned to work for the employer with restrictions;

3. Conducted a job search; and

4. Undertaken a training program and transferable skills evaluation.

Mr. Liebert did not ascertain the applicant's pre-injury and post-injury earning capacity and potential. He further admitted that he was attempting to maximize the applicant's earning potential rather than restore it, and that he could not say for certain he would have provided the same IWRP if he followed DVR's standard procedure for worker's compensation cases.

The applicant eventually applied for worker's compensation, but his claim was denied by the Home Indemnity by letter dated January 27, 1992. The denial was based on Dr. Welsch's report that the applicant had plateaued in March 1991 and would not have any residual permanent disability. The letter denying the claim also noted that the applicant could play darts and volleyball as of December 1991.

To the date of the hearing, the applicant has completed three semesters at the University of Wisconsin Center at Fond du Lac. He maintained a 4.0 grade point average at UW-Fond du Lac, while earning 42 credits. He intends to continue at Marian College after completing two years of coursework at the UW-Fond du Lac.

The hearing in this case was limited to the applicant's eligibility for vocational rehabilitation under secs. 102.43 (5) and 102.61, Stats. The parties have stipulated to the amount of benefits due, should the applicant be found eligible. See Exhibit J.

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, but limit may be extended if the department determines further training is warranted.

The department determines 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. Absent special circumstances, the department is bound by DVR's determination 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 [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).

In this case, the applicant never received disability benefits from the worker's compensation insurer. Instead, he received the long-term disability payments from CNA. An argument could be made that the CNA disability payments are not "compensation" under ch. 102, Stats., but sec. 102.30 (7), Stats., indicates otherwise. Regardless, the payment of medical expenses is "compensation" for the purposes of sec. 102.61 (1), Stats. In this case, the administrative law judge found without contradiction that the respondent paid medical expenses under the worker's compensation act.

A subpart of the issue of compensability is the question of whether the disability which makes the vocational rehabilitation necessary is caused by the injury for which compensation is paid. The commission answers this affirmatively. Dr. Welsch's practitioner's report states that the work activity or exposure caused the applicant's condition and resulting disability. He goes on to limit, for the indefinite future, the applicant from repetitive work and lifting over certain limits. The commission read Dr. Welsch's report to mean that the work exposure or activity caused the injury giving rise to the indefinite restrictions. Certainly, the indefinite restrictions were not imposed until after the applicant began his jogger duties leading to the conceded work injury.

In sum, the applicant has been paid compensation for the conceded work injury. The injury in turn caused the restrictions imposed by both Drs. Welsch and Rieder. It is these restrictions which led DVR to determine that the applicant was eligible for vocational rehabilitation. Consequently, the applicant meets the threshold test for eligibility under secs. 102.43 (5) and 102.61, Stats.

The next question is whether DVR properly determined that the applicant is entitled to instruction under the federal vocational rehabilitation act. As noted above, the department and this commission must defer to the determination of DVR on this point, unless either highly material facts were misrepresented or withheld or DVR's interpretation of the vocational rehabilitation laws amount to an abuse of administrative power.

No highly material facts were withheld from DVR in this case. Rather, the respondent argues that DVR abused its administrative power. The commission sees two possible bases for abuse of administrative power by DVR: The first would be if DVR's implicit finding, that the applicant's work restrictions made him eligible for services in the absence of a rating for permanent disability, were "entirely outside the reasonable scope of interpretation" of the vocational rehabilitation law. The second would be if DVR's failure to follow its own procedures for providing services to individuals with worker's compensation claims amounted to an abuse of power.

The vocational rehabilitation laws require some disability as a condition of receiving vocational rehabilitation benefits. The federal law dealing with vocational rehabilitation, 29 USC 701, et seq., conditions eligibility on being an "individual with handicaps". See particularly, 29 USC 701 and 723. In addition, the state statutes governing DVR and vocational rehabilitation apply only to handicapped and severely handicapped individuals under sec. 47.02 (2), Stats.

The state vocational rehabilitation statutes provide the following definitions:

"Handicapped person" means any person who has a physical or mental disability which constitutes or results in a substantial handicap to employment and who can reasonably be expected to benefit in terms of employability from the provision of vocational rehabilitation services.

"Employability" means that the provision of vocational rehabilitation services is likely to enable an individual to obtain or retain employment consistent with his or her capacities and abilities in the competitive labor market,...."

Section 47.01 (2) and (3), Stats. These definitions closely track the definitions under the federal vocational rehabilitation act, 29 USC 706 (6) and (8)(A). Given state and federal definitions of handicap and employability, the commission concludes that the vocational rehabilitation law requires some long term, if not permanent, impairment of function as a prerequisite to receipt of services including instruction.

In this case, none of the doctors have assigned permanent partial disability to the applicant. On the other hand, both Drs. Welsch and Rieder imposed permanent restrictions against repetitive hand movement following the work injury. The commission argues that the indefinite restriction against repetitive hand movements constitutes a substantial handicap to employment, particularly for an unskilled laborer like the applicant. Finding the applicant eligible for rehabilitation services based on this record is not "entirely outside the reasonable scope of interpretation" of the vocational rehabilitation laws.

However, the administrative law judge found a clear abuse of administrative power in DVR's failure to follow its procedures in deciding what type of services to provide. The administrative law judge focused on the fact that Mr. Liebert did not estimate the applicant's pre-injury and post-injury earning capacity.

The administrative law judge sensibly did not find abuse of power based on Mr. Liebert's failure to contact the employer about placement or conduct a job search for the applicant. The employer laid the applicant off when it learned of his restrictions, and the applicant credibly testified that he conducted an extensive job search. Mr. Liebert testified that the applicant's job search efforts would have been sufficient even if he had been following the worker's compensation guidelines.

Under these circumstances, the commission and the courts have held that DVR's failure to follow its own rules is not an abuse of administrative discretion. In Sommer v. Peter Pirsch & Sons Company & LIRC, Court of Appeals case no. 87-1333 District II unpublished decision (March 30, 1988), the court considered DVR's failure either to contact an employer about placement and retraining progress or to conduct a general job search. The court acknowledged that DVR had not followed its policy, but pointed out that Sommers had self-referred to DVR, had been laid off by the employer because it had no work for him, and had conducted his own job search. The court found no abuse of administrative power.

The commission recently addressed the same issue itself in another case: Terri Strzyzewski v. Jerome Foods, Inc., claim no. 92012367 (LIRC, October 19, 1994). In that case, the DVR counselor did not realize that the applicant was applying for worker's compensation training, and therefore did not follow the steps outlined in the DVR's procedures for someone applying for worker's compensation retraining benefits. The commission found no abuse of administrative discretion, noting Ms. Strzyzewski's efforts to stay abreast of employment opportunities with her employer.

Moving beyond the job search issue, though, the facts in Strzyzewski are somewhat distinguishable from the case now before the commission. In Strzyzewski, after the DVR counselor found out that the applicant had a worker's compensation claim he completed his evaluation accordingly. Strzyzewski's counselor could say for certain that Ms. Strzyzewski's IWRP was the same as it would have been had proper procedures for a worker's compensation case been followed from the beginning. In this case, counselor Liebert testified he did not know that for certain.

Nonetheless, the commission finds no abuse of power by DVR. First, 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 testimony of the respondent's vocational expert in this case compared the applicant's wages at the employer at the time of the injury with wages he could receive in various jobs thereafter. Indeed, the vocational expert testified that she did not think that the applicant had any loss of earning capacity, because he is now earning as a department manager at Target about what he made at Quad Graphics.

However, the vocational expert admitted at the hearing that the applicant had the mental ability to progress further at Quad Graphics had he not been injured. Top end laboring jobs at Quad Graphics make $35,000 per year. This is considerably more than the applicant is now making at Target, and more in line with what a starting science teacher might make.

The fact that the applicant'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 accepted the commission's finding that virtually any retraining will result in some increase beyond the pre-injury earning capacity. The Beloit Corp. case dealt with DVR vocational rehabilitation training that sent a young laborer to college to become an engineer. The court noted that while the training increased the applicant's earning capacity above the pre-injury level, that 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. The court approved of the commission's finding that the purpose of the training was to use his ambition, intellect and remaining natural assets to restore his pre-injury capacity. It affirmed the commission's finding of vocational rehabilitation benefits.

Further, the "blame" (to the extent there is blame) for DVR not following its worker's compensation procedure does not lie with the applicant. He informed DVR he had had an industrial injury. He told DVR he had not received worker's compensation because the employer encouraged him to apply for long-term disability from CNA instead. Moreover, even if DVR had followed its procedure, the commission infers that the applicant still would have received vocational retraining. Finally, Massachusetts Bonding indicates that the commission should give a high degree of deference to DVR, and the commission does not believe this case involves an abuse of administrative power by that agency.

The last issue is the amount of the award. The parties have stipulated that the applicant's average weekly wages were $366.09, resulting in a compensation rate for temporary total disability of $244.06. The parties also stipulated that the applicant is entitled to $4,149.02 for the period from January 21 to May 23, 1992, inclusive; $2,177.02 for the period from August 30 through December 26, 1992, inclusive; and $2,113.70 for the period from January 18 through May 2, 1993, inclusive. This amounts to a total of $8,439.74. See Exhibit J.

The applicant authorized a twenty percent attorney fee on the award, which amounts to $1,687.95. The applicant's attorney has also established $91 in costs. These amounts shall be deducted from the total amount awarded to the applicant.

This order relates to, and is final only with respect to, the applicant's claim for vocational rehabilitation benefits during the period covered by the parties' stipulation. The commission does not decide whether the applicant is eligible for compensation during any additional periods of instruction, and leaves this decision interlocutory on that issue. Jurisdiction is reserved on all other claims arising from the injury on February 15, 1991.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is reversed. Accordingly, within 30 days from the date of the decision, the employer and its insurer shall pay all of the following: (1) To the applicant, Steven Mand, the sum of Six thousand six hundred sixty dollars and seventy- nine cents ($6,660.79) for permanent partial disability. (2) To the applicant's attorney, John A. Neal, the sum of One thousand six hundred eighty-seven dollars and ninety-five cents ($1,687.95) as attorney fees, plus Ninety-one dollars ($91) in costs. Jurisdiction is retained to issue such further orders as may be warranted consistent with this decision.

Dated and mailed January 18, 1995
ND § 5.39

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not confer 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). Rather, the commission reached a different legal conclusion than the administrative law judge based on an essentially undisputed set of facts. Indeed, the administrative law judge indicated in his synopsis of the hearing testimony that he did not believe witness credibility was at issue in this case.

cc: ATTORNEY STANLEY J LOWE
WHITE & LOWE

ATTORNEY JOHN A NEAL
CURTIS WILDE & NEAL

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