P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 92006315

The administrative law judge issued his findings of fact and interlocutory order in this case on February 18, 1994, following a hearing on December 16, 1993. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $240, and a December 20, 1991 compensable injury. The respondent also conceded and paid temporary total and temporary permanent partial disability for various periods from the date of injury to December 11, 1992, resulting in an overpayment of $4,295.66 for that period. The respondent has also conceded and paid permanent partial disability at five percent compared to amputation at the knee, for a total of $2,911.25. The issues in dispute are the nature and extent of disability beyond that conceded and liability for medical expenses. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:


The applicant in this case was born on March 25, 1934. She quit school after the eighth grade and has never had any formal post-school occupational training. The employer is a car dealer and the applicant worked in its parts department. Her duties included marking parts, carrying them, and picking up and delivering them by motor vehicle.

The applicant was in a motor vehicle accident on December 20, 1991, while she was driving a pickup truck to get parts for the employer. The accident occurred when the pickup truck the applicant was driving was struck on the driver's side by another vehicle. During the accident, the applicant twisted her back and struck her right knee against the dashboard or steering wheel. The accident caused a compensable injury to the applicant's right knee and lower back.

Following her injury, the applicant was unable to continue working. She was treated at the Harwood Clinic and later was referred to Lee M. Tyne, M.D., an orthopedic specialist. She first saw Dr. Tyne on January 2, 1992.

Dr. Tyne's first impression was that the December 20, 1991 accident caused the applicant to sprain the medial collateral ligament of her right knee and strain her back. He treated the applicant's lower back and right knee symptoms conservatively until an MRI test showed "tears of both the posterior horns of the medial and lateral menisci." Exhibit A, Dr. Tyne's note of February 13, 1992. On March 12, 1992, Dr. Tyne performed arthroscopic partial medial and partial lateral menisectomies and femoral shaving at the right knee. His post-operative diagnosis was a tear of the medial and lateral menisci with degeneration and osteoarthritis of the right knee.

On March 31, 1992, Dr. Tyne released the applicant to half-time work with restrictions against stair climbing, pushing, pulling, awkward bending, or lifting over 20 pounds. He also ordered an MRI of the applicant's back on that day because of continuing back pain. The MRI showed a small disc herniation just to the left of the midline at L5-S1.

From April to October 1992, Dr. Tyne noted continuing pain in her back, thigh, groin area and knee. He took her off work on October 22, 1992, and suggested she find another job where she could:

"sit and then move around frequently but not have to do anything standing and no significant walking, pushing, pulling, lifting, [or] driving."

Dr. Tyne also opined in the October 22 note that the applicant had a 10 percent permanent partial disability at her right knee from the meniscal tears. He noted that he did not include any disability from the applicant's arthritis in her knee because that may have been pre-existing. In his note dated December 17, 1992, the doctor stated the applicant had plateaued. He stated that the applicant had a bulging disc and discogenic disease. He rated the applicant's disability from the work injury at 15% and opined that she had an equivalent amount of disability due to her pre-existing condition. He recommended she lose weight and stated that he would not attempt a spinal fusion at her current weight. He did opine that she could return to work if work was available within the restrictions he set out in a functional capacity worksheet.

Dr. Tyne completed the functional capacity report originally on December 9, 1992, and reiterated the limitations set out therein in another report dated March 25, 1993. See Exhibit C. He began by opining that, in an eight hour work day, the applicant could sit four to six hours, could stand 0-2 hours, could walk 0-2 hours and could drive 0-2 hours. He prohibited her from twisting, bending, squatting, kneeling, crawling, climbing, and pushing/pulling. He indicated she could occasionally carry less than 10 pounds and could never carry 25 or more pounds. He would allow her to use her hands or arms repetitively, but stated she could not go back to her parts work for the employer.

The independent medical examiner, William P. McDevitt, M.D., opined that the applicant had reached a healing plateau as of the date of his report, November 30, 1992. He also assessed a five percent permanent partial disability rating for the right knee and no permanent disability for the back. He noted that the applicant's problems were due to a pre-existing degenerative arthritis in the lower back and the knee. Dr. McDevitt imposed a 30-pound lifting restriction, and recommended avoiding excessive bending, twisting and turning.

The applicant's expert, Leslie Goldsmith opined that the applicant was not a suitable candidate for work on a sustained and competitive basis. He thus found that she was totally disabled and suffered a 100 percent loss of earning capacity, on an odd-lot rationale. He noted that the applicant and her doctor both associated the functional restrictions leading to her loss of earning capacity with her back disability rather than her knee disability.

Specifically, Mr. Goldsmith stated that Dr. Tyne limited the applicant "to a sedentary-type job for a maximum of four to six hours of sitting per day." He noted that the applicant stated she could not actually sit that long, but Mr. Goldsmith concluded that even if she could sit for four to six hours "she could not adapt to a job within Dr. Tyne's guidelines." Mr. Goldsmith went on to note that the applicant was 59, had limited skills and work experience , and had severely restricted functional abilities. He also opined that given her age, physical restrictions and potential for further injury, she was not likely to be rehired.

The respondent's vocational expert, Timothy Riley, provided a report and testified at the hearing. He noted first that IME McDevitt stated that the applicant had no permanent disability associated with her back. Thus, under Dr. McDevitt's opinion, the applicant would have no loss of earning capacity.

Mr. Riley also concluded that even with Dr. Tyne's work restrictions, the applicant would have access to "a limited number of jobs" in the general labor market. He specifically offered such positions as bench/small parts assembly, cashier, plastics trimmer, injection molding machine operator and telephone solicitor. He opined that she could earn $5.00 to $7.00 per hour doing such jobs, which was no actual wage loss from the $6.00 to $7.00 she could expect to earn at her pre-injury job (her actual wage was $6.00 per hour). He did state that she would have a 5 to 10 percent loss of earning capacity based on "lost access" to the labor market.

Mr. Riley also noted in his report that the applicant was not looking for work and had not contacted DVR . He reported her only vocational goal as applying for SSDI benefits. The applicant testified at the hearing that she has not looked for work since October 1992, which means she has not looked for work since her healing plateau. She also admitted never contacting DVR about work.

The respondent concedes that the motor vehicle accident of December 20, 1991 resulted in compensable injury. The issue is the nature and extent of the disability caused by that injury or injuries, if any. The commission finds the medical opinions of the treating physician, Dr. Tyne, to be more credible on this issue.

Dr. McDevitt does not dispute that the meniscal tears in the applicant's right knee were caused by the accident, he simply assigns a lower disability rating to them. The commission accepts Dr. Tyne's higher rating because it seems more consistent with a surgery to repair two meniscal tears, and with the applicant's continuing symptoms thereafter. The commission likewise accepts Dr. Tyne's opinion that the December 20, 1991 accident caused permanent partial disability to the applicant's back at fifteen percent compared to permanent disability to the body as a whole. The MRI showed a herniation after the accident and, while it also showed pre-existing degeneration, the fact remains that the applicant could do her relatively physical work before the December 20, 1991, accident but not after. The commission is not persuaded that the applicant's permanent disability in her back, which caused even IME McDevitt to impose work restrictions, was due a mere manifestation in the normal progression of her pre-existing degenerative condition.

The commission thus concludes that the work injury caused temporary total disability until the December 18, 1992 healing plateau set by Dr. Tyne and permanent functional disability to the knee and back thereafter. The next issue is the effect of the unscheduled back injury on the applicant's earning capacity. On this issue, the commission must decide between Mr. Goldsmith's opinion that the applicant is in effect permanently and totally disabled under the odd-lot doctrine, and Mr. Riley's opinion that the applicant suffered at most a ten percent loss of earning capacity based on the back injury.

According to the supreme court, the odd-lot doctrine is primarily an evidentiary rule. Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977). The court of appeals summarized the Balczewski decision as stating that:

"once the claimant prima facie proves 100 percent disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate 'that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity.... If the evidence of the degree of physical disability coupled with other factors 'such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available."

Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 252 (Ct. App. 1989).

Two other points are worth noting. First, Professor Larson has stated that in odd-lot cases "it is not unreasonable to place the burden of proof on [the employe] to establish the unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable effort to secure suitable employment." 1C Larson, Workmen's Compensation, sec. 57.61(d) (1993). Here, of course, the applicant did not look for work after reaching her healing plateau, apparently because she believed it futile.

Second, loss of earning capacity award must be based on the loss caused by the "unscheduled" back injury, not the "scheduled" knee injury. The schedule in sec. 102.52, Stats., is presumed to include its own an award for loss of earning capacity and the number of weeks allowed by the schedule is usually considered the exclusive remedy for that injury. Mednicoff v. ILHR Department, 54 Wis. 2d 7, 10-16 (1972). Indeed, the commission has dismissed a loss of earning capacity claim for a relatively minor unscheduled injury where the vocational expert did not separate out the physical restrictions imposed by the scheduled injury when assessing lost earning capacity. James Soper v. LIRC, Court of Appeals, District II, case no. 87-0167 (unreported decision dated August 5, 1987). On the other hand, where a scheduled injury causes pain to "unscheduled" parts of the body and interferes with their efficiency, a loss of earning capacity award may be appropriate. Mednicoff, supra, at 54 Wis. 2d 15 and Neal & Danas, Worker's Compensation Handbook, sec. 5.18 (3d ed., 1990).

The commission cannot conclude that the applicant has made a prima facie showing of unemployablity under Balczewski in this case. First, the opinion of Dr. Tyne does not clearly delineate which of his restrictions are attributable to the unscheduled back condition or to an interference with the efficiency of the unscheduled back condition caused by the knee injury. Second, the record does not indicate that the applicant sought work within her restrictions, despite the December 17, 1992 work release from her treating physician.

Finally, even if the applicant could be considered to have made a prima facie under Balczewski, it was rebutted by the opinion of the respondent's vocational expert. While Mr. Riley's estimate of the loss of access to the labor market is low, his opinion credibly sets out a number of jobs available to the applicant within her restrictions. The commission therefore concludes that some kind of suitable work is regularly and continuously available to the applicant, and that she does not fit the odd-lot category of permanent total disability.

After considering the applicant's age, education, and previous experience, the commission concludes that her loss of earning capacity, based on lost access to work does not exceed 15%. Thus, the applicant's permanent partial disability award associated with her unscheluded back injury is no greater than the functional rating given by Dr. Tyne.

The commission therefore finds that the applicant was temporarily and totally disabled through December 17, 1992, or 4 days beyond that conceded. The applicant's temporary total disability compensation rate is 160 per week (two-thirds of her average weekly wage of $240.) The additional four days of temporary total disability ($106.66) is subtracted from the overpayment of temporary total disability for the periods already conceded, leaving a net overpayment of $4,189.00.

The commission further finds that the applicant has a permanent partial disability at 10% compared to amputation of the right knee (for the right knee injury) and at 15 percent of permanent total disability to the body as a whole (for the back injury). A ten percent rating at the right knee works out to 51 weeks (42.5 weeks under sec. 102.52 (11), plus 8.5 weeks under sec. 102.53 (4), Stats.). A fifteen percent rating for the body as a whole works out to 143.625 weeks {0.15 multiplied by (1000 weeks minus 42.5 weeks)}. The applicant is therefore entitled to a total of $26,664.31 for permanent partial (194.63 weeks times $137 ). As of December 5, 1994, the sum of $14,362.17 (104.83 weeks at 137 per week) has accrued.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional temporary total and permanent partial benefits awarded beyond what was conceded. The future value of the fee is thus $3,912.81 {20 percent of ($26,664.31 awarded in permanent partial disability, plus $106.66 awarded in temporary total disability, minus the $2,911.25 conceded for permanent partial disability and minus the overpayment of temporary total disability of $4,295.66)}. Only part of that fee has accrued as of December 5, 1994, resulting in an interest credit $144.06 which reflects the fee's present value of $3,768.75. The fee shall be deducted from the applicant's award and paid to his attorney within 30 days.

The amount of $5,809.54 is due to the applicant within 30 days. This is determined by adding the total amount of permanent partial and temporary total disability accrued as of December 5, 1994 ($14,362.17 plus $106.66). From this amount ($14,468.83) are subtracted the conceded overpayment of temporary total disability benefits ($4,295.66), the permanent partial disability already paid ($2,911.25) and the accrued attorney fees ($1,452.38) fees, leaving the amount due as set out above.

The amount remaining to be paid to the applicant it accrues beginning on January 5, 1995 is $9,841.71. This is determined by starting with the total award for permanent partial disability ($26,664.31), subtracting the amount of permanent partial disability accrued to December 5, 1994 ($14,362.17), and subtracting the unaccrued portion of the attorney fee without deducting the interest credit ($2,460.43). This amount shall be paid to the applicants in monthly installments of $593.67, January 5, 1995.

The respondents have apparently paid all medical treatment expenses as of the date of the hearing. However, because further treatment of the applicant's lower back condition may be necessary, jurisdiction is reserved on the issue of future medical expenses.

NOW, THEREFORE, the Labor and Industry Review Commission makes


Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Pearl Sterberger, the sum of Five thousand eight hundred nine dollars and fifty-four cents ($5,809.54).

(2) To the applicant's attorney, Ronald Bornstein, the sum of Three thousand seven hundred sixty-eight dollars and seventy-five cents ($3,768.75) as attorney fees.

On January 5, 1995, and continuing on the fifth day of each month thereafter, the respondent shall pay the applicant Five hundred ninety-three dollars and sixty-seven cents ($593.67) per month until the sum of Nine thousand eight hundred forty-one dollars and seventy-one cents ($9,841.71) has been paid. Jurisdiction is retained to issue such further orders as may be warranted.

Dated and mailed December 31, 1994
ND 5.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner


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 administrative law judge found the applicant to be a credible and forthright witness, and that she could not return to her former work. The commission does not dispute this, but rather concludes from the evidence summarized above that the applicant did not establish that she was totally and permanently disabled.



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