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

DEXTER R RIVERS, Applicant

PACIFIC INTERMOUNTAIN, Employer

HOME INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88011883

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
riverde.wsd : 101 : 3  ND § 5.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In his briefs supporting his petition for review, the applicant argues that the report of his expert, Brent C. Evans, Ph.D., is more credible than that of the respondent's expert, Dennis E. Gross, with respect to the applicant's transferable skills. The applicant argues that Dr. Evans' opinion is supported by the expert opinion of a colleague of Mr. Gross, Beth Slayton.

a. Vocational experts.

In addressing the applicant's argument, the commission believes it useful to set out the opinions of the vocational expert in some length.

Dr. Evans, the applicant's expert, focuses on the social security regulations dealing with an assessment of transferable skills and relevant work experience. Dr. Evans reported that he examined the 12,471 jobs in the Dictionary of Occupational Titles and attempted to find "matches" in terms of (i) jobs in terms of the applicant's transferable skills (which would have included jobs of the same or lesser degree of skill), and (ii) sedentary work which did not require stooping, crouching or reaching as critical components for job security. Dr. Evans concluded:

"The above analysis failed to identify any potential job matches. This would indicate that, consistent with the analytical procedures specified in [a Social Security Administration manual] it can be reasonably concluded that Dexter, therefore, does not have access to semi-skilled or skilled employment based on a vocational rehabilitation plan which would primarily use transferable skills in an attempt to directly obtain employment."

Evans report, page 4, Exhibit B. After discussing the applicant's unsuccessful DVR efforts, Dr. Evans opined that the applicant is permanently and totally disabled and incapable of returning to the competitive labor market force. He states his opinion is based on the severity of the applicant's multiple vocational handicaps, and consistent with the finding of the Social Security Administration that the applicant was eligible for SSDI.

The applicant was also assessed by Beth Slayton of Intracorp. In her report of August 12, 1994, she concluded that the applicant's competitive employability was questionable and warranted further investigation. She recommended a "situational assessment." However, the applicant's attorney, Robert Ward, was not comfortable with a situational assessment. Thereafter, at the insurer's request, the applicant's case was referred to a colleague, Dennis Gross, for loss of earning capacity assessment. See Exhibit F.

Mr. Gross's loss of earning capacity assessment is offered by the employer as Exhibit 3. Mr. Gross acknowledged that with Dr. Stoll's restrictions, the applicant would be unable to perform as a dockman or a truck driver. Mr. Gross opined that, with the applicant's transferable skills in prior employment, he could compete for occupations such as TV/radio advertising sales representative, cashier, class C assembler (select), telemarketer, order filler (select), and hand packager (select). As this work paid between $5.75 and $7.40 per hour and the applicant would have earned $14.22 to $16.44 per hour had he not been hurt, Mr. Gross opined the applicant's loss of earning capacity was between 55 and 65 percent. Those figures assumed the applicant could not be retrained.

b. Odd-lot doctrine generally.

The applicant's assertion that he is permanently and totally disabled on a vocational basis turns on the applicability of the "odd-lot rule." 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 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, 251-52 (Ct. App. 1989). Professor Larson has noted 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 Law, sec. 57.61(d) (1993).

The court of appeals has recently emphasized in two unpublished opinions that once the applicant has made his prima facie showing under Balczewski, the burden is on the employer to show that work is available for the applicant; merely saying the applicant is available for certain types of work is not enough. Stated another way, the commission may not assume that simply because a vocational expert opines that the applicant may do certain types of select work, that such positions are actually available. Cabral v. LIRC, court of appeals case no. 94-3309-FT, district I unpublished slip opinion at pages 10-11 (December 12, 1995); Morey v. LIRC, court of appeals case no. 95-0673-FT, unpublished slip opinion at page 4 (December 21, 1995).

c. Did the applicant make a prima facie case?

The commission cannot conclude Dr. Evans' report makes a prima facie case of odd-lot unemployability. Instead, Dr. Evans opines that the applicant cannot find skilled or semi-skilled work using transferable skills from prior employment. That is not the same as showing that he is unable to secure gainful and continuing employment. Specifically, Dr. Evans does not exclude the possibility of the applicant securing precisely the type of unskilled work which Mr. Gross states the applicant can compete for.

The commission also acknowledges that the Ms. Slayton opined that the applicant's employability was questionable. However, Ms. Slayton wanted to undertake further investigation, including a "situational assessment." This was not done on the advice of the applicant's attorney, however. Under these circumstances, the commission does not believe Ms. Slayton's report establishes a prima facie case.

Viewing the record as a whole, then, the commission concludes that the applicant has failed to make a prima facie case of odd-lot unemployability. The commission also concludes that the ALJ properly accepted the report of Mr. Gross as most credible, and awarded loss of earning capacity on that basis.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD

ATTORNEY STANLEY J LOWE
WHITE & LOWE

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