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




Claim No. 88036712

The administrative law judge issued his findings of fact and interlocutory order in this case on March 17, 1995, following a hearing on June 15, 1994. The employer and the insurer (collectively, the respondent) have submitted a motion to vacate the administrative law judge's order, which it alternatively titled 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 $260, and a June 15, 1988 compensable injury. The respondent has also conceded and paid temporary total and permanent partial disability as set out below. The respondent has further conceded and paid certain medical expenses. At issue is the nature and extent of disability beyond that conceded, specifically for loss of earning capacity.

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 affirms his findings of fact and interlocutory order, except as modified herein:


The first eight paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The ninth through fourteenth paragraphs of the findings of fact are deleted and the following substituted therefor:

"The applicant was examined by two vocational experts. Daniel Kuemmel, the applicant's expert, examined him on May 7, 1993. Michael Ewens examined the applicant on behalf of the respondent on February 28, 1994. Both experts were aware that the applicant had sustained a scheduled ankle injury for which restrictions were set by Dr. Stone, as well as an unscheduled back injury for which restrictions were set by Dr. Flatley. Accordingly, the experts limited their analyses to the restrictions for the unscheduled back injury set by Dr. Flatley.

"The applicant's pre-injury employment history is relatively undisputed. Both vocational experts agree on the jobs and dates. The applicant graduated from high school in 1969. He worked for Victory Steel, welding I-beams, in 1971-72. He then worked as a welder of frames for Inland Ryerson Steel in 1972-73. His employment was interrupted from 1973-76 while he was in prison. Following his release, the applicant worked for Harnischfeger from 1976-78 as a welder of heavy equipment. The applicant also testified he earned $7.00 to $8.00 per hour working as a welder in his first welding job, $9.00 to $10.00 in his second, and $10.00 to $11.00 in his third job at Harnischfeger from 1973 to 1976.

"The applicant then worked for Metro Window Cleaning Corp. in 1977-78. He worked for Clear VU Windows in 1978-79. He then worked for Badger Window Cleaners from 1979 to 1988, and returned to Clear VU Windows in 1988. It was while employed for Clear VU Windows that he fell four stories and injured himself.

"The respondent's vocational expert reports the date of injury wage as $6.75 to $7.00 per hour, while the applicant's expert reports the wage to be $8.50 per hour. In fact, according to the applicant's own testimony, he was earning $6.50 to $6.75 at the time of his injury. A forty hour week at $6.50 per hour wage would result in the conceded average weekly wage of $260.

"Mr. Kuemmel described the applicant as a 41-year old man with a high school education, and no transferable skills (other than welding) who only qualifies for unskilled work. Mr. Kuemmel reported that the composite of Dr. Flatley's restrictions eliminate the applicant from his work as a window washer and from work as a welder. Mr. Kuemmel also stated that the composite of Dr. Flatley's restrictions limited the applicant to light and sedentary jobs which do not require more than occasional bending, crawling and climbing. Although the applicant can lift up to 50 pounds occasionally, which would put him in the medium category of work with respect to lifting, Mr. Kuemmel concluded the applicant's bending, crawling and climbing restrictions disqualified him from medium or heavier work.

"Mr. Kuemmel went on to assess a loss of earning capacity, noting that the applicant's post- injury restrictions limited him to the lowest paying light and sedentary work. He determined the amount of loss of earning capacity in part by comparing the jobs and salaries he was qualified for before the injury with those for which he was qualified afterward. He also considered other factors affecting his earning capacity, specifically, age, educational background, skill level, and occupational experiences. He estimated a 40 to 50 percent loss of earning capacity.

"In reaching this conclusion, Mr. Kuemmel estimated that if the applicant had received average 5% annual increases from 1988, he would have been earning $10.84 per hour as a window washer as of the date of the June 1993 report. The problem, of course, is that Mr. Kuemmel bases this on his erroneous belief the applicant was earning $8.50 as a window washer when he was injured. In fact, the applicant was earning only at most $6.75 per hour at the time of injury, and that works out to only $8.61 with five annual 5% raises.

"The effect of this error is reduced somewhat by the fact that Mr. Kuemmel also considered the average rate of pay that the applicant could have earned in other work he was qualified and physically able to do before his injury. Examples of this type of work include: material handler, leather industry laborer, order filler in a warehouse, non union construction, food processing worker, punch press operator, and welder . This worked out to a range from $8.68 to $10.84 per hour.

"Mr. Kuemmel then opined that, given his permanent restrictions from the work injury, the applicant's earning capacity was limited to work paying in the range from $5.02 per hour to $6.85 per hour. Such work included work as assembler, hotel clerk, film developing machine operator, parking lot attendant, customer service clerk, silk screen laborer, and delivery person. Mr. Kuemmel specifically opined that the applicant could not return to either window washing or the heavy welding work he had done before the date of injury.

"The respondent's vocational expert, Michael J. Ewens submitted two vocational reports both estimating loss of earning capacity at 15 to 20 percent. He noted that the applicant was 41 at the time of evaluation and 35 on the date of injury. He noted the applicant earned a GED in the early 1970s, and had obtained an arc welding certificate in the 1960s.

"In his second report, particularly, Mr. Ewens discussed Dr. Flatley's restrictions. Considering the doctor's reports as a whole, Mr. Ewens opined the applicant had the post-injury residual capacity to perform sedentary to light work.

"In his first report, Mr. Ewens also noted the applicant had established himself as a window washer for 11 years; that although he only made $6.50 per hour washing windows at the time of injury, window washers generally made $7.70 per hour when the applicant reached an end of healing in 1993; and other similar medium duty, unskilled work (such as production clerk, class C assembler, hospital cleaner, hand packager and warehouse worker) paid in the range from $6.05 to $8.04 per hour. Based on all of this, Mr. Ewens estimated a pre-injury earning capacity in the range from $15,000 to $16,000 per year. Mr. Ewens did not consider work as a welder in fixing the applicant's pre-injury wage range.

"Mr. Ewens opined that, after his injury and subject to Dr. Flatley's restriction to sedentary work with occasional standing, the applicant could work as a customer service clerk, a security officer, an assembler, a delivery driver, a car sales lot attendant or helper, and a variety of temporary help positions. Based on these occupations and contacting employers who actually had work available within the applicant's restrictions, Mr. Ewens estimated the applicant's earning capacity after the injury was between $12,000 and $14,000 annually. Comparing pre-injury earning capacity to post-injury earning capacity, Mr. Ewens estimated a loss of earning capacity at 15 to 20 percent.

"It is concluded that the applicant sustained a 30 percent loss of earning capacity. This figure is reached after considering the applicant's young age, his relatively low educational level (which emphasizes the importance of an ability to do heavy work to increase his potential for relatively higher paying jobs), and his lack of transferable skills particularly since he can no longer do welding work. On the other hand, the applicant's efforts to find work after reaching a healing plateau seem somewhat lacking, especially since both experts agree that work is available within his restrictions.

"In addition to the factors set out in sec. Ind 80.34, Wis. Adm. Code, the reports of both vocational experts, and their estimates of loss of earning capacity, were also considered. See sec. 102.17 (7)(a), Stats. Mr. Kuemmel's range is not to be accepted outright because it is based in part on the erroneous assumption that the applicant was earning $8.50 at the time of his injury and would have earned $10.84 by 1993. Although the effect of this error is diminished by Mr. Kuemmel's consideration of the applicant's pre-injury capacity to do other types of work, his significant overstatement of the applicant's actual pre-injury wage cannot be lightly disregarded.

"In addition, Mr. Kuemmel's wage figures for work within the applicant's post-injury restrictions are questionable. Mr. Ewens' post-injury figures, based on actual employer contacts in the Milwaukee area, seem a more reliable basis for computation. Because Mr. Kuemmel's figures for the applicant's post-injury earning capacity are understated, he in effect over-estimates the applicant's loss.

"On the other hand, Mr. Ewens' report, considered in its entirety, underestimates the applicant's loss of earning capacity. First, he fails to consider the applicant's ability to perform welding, including heavy welding, prior to his work injury. True, the applicant's wages as a welder in the 1970s are not the determinative factor in assessing loss of earning capacity following his injury in 1988. However, although the passage of time since the applicant did welding work may seem to justify excluding welding from his pre-injury 'job mix,' a permanent disability rating must consider loss of capacity. It is not based simply on the loss of ability to do the types of work that are most similar to the job the applicant did at the time of his injury. The fact remains that the applicant is no longer able to do either of the jobs he has held through out his adult life: welding and window washing. Finally, Mr. Ewens' opinion is accorded relatively less weight because he did not give much specific consideration to the factors set out in sec. Ind 80.34, Wis. Adm. Code, in the 'vocational impact' discussion of his report.

"In sum, the applicant sustained a 30 percent permanent partial disability on a vocational basis with respect to his injury to his spine on June 15, 1988. The unscheduled disability rated by Dr. Flatley on a functional basis is merged into this figure.

"The 30 percent rating for loss of earning capacity is applied to the 1000-week base set out in sec. 102.44 (3), Stats. However, before doing so, the one hundred weeks attributable to the conceded scheduled disability of 40 percent compared to amputation of his ankle must be subtracted from the 1000-week base. Section Ind 80.50 (2), Wis. Adm. Code. Consequently, the applicant is entitled to 270 weeks of permanent partial disability at the weekly rate of $121 per week (the statutory maximum for injuries suffered in 1988) for the unscheduled disability, totaling $32,670.

"The permanent partial disability for the applicant's unscheduled injury began accruing as of August 7, 1995 when the respondent finished paying the 120 weeks of permanent partial disability attributable to the scheduled ankle injury and the multiple injury statute. As of October 2, 1995, therefore, eight weeks of the unscheduled permanent partial disability awarded under this order have accrued, totalling $968. The sum of $31,702 (262 weeks at $121 per week) remains unaccrued.

"The applicant also approved the deduction of an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional permanent partial benefits awarded under this decision. It appears from documents in the file that Dr. Flatley's 12 percent functional rating was for practical purposes not disputed (see particularly letter from Helen O'Dywer of the insurer to the applicant's attorney, dated April 7, 1993, and letter from the respondent's attorney to ALJ Phillips dated March 15, 1994). Consequently, no attorney fee is awarded for the first 108 weeks (12 percent of 900-week base) of benefits that accrue under this order. Rather, the attorney fee is limited to the 162 weeks (18% of the 900-week base) of benefits that begin to accrue on September 1, 1997 (108 weeks after August 7, 1995).

"The future value of the attorney fee is $3,920.40 {20 percent of (162 weeks at $121 per week)}. However, because the fee will not begin to accrue until September 1, 1997, it is subject to an interest credit of $842.63. This reflects its present value of $3,077.77, calculated as of October 2, 1995. Costs of $558.66 are also awarded. The fee and costs shall be paid within 30 days.

"As noted above, the total awarded to the applicant under this order is $32,670, of which $968 has accrued to October 2, 1995. The $968 in accrued benefits, however, has been retained by the respondent toward its prior overpayment of $15,263.80 in permanent partial and temporary total disability due to the social security offset under sec. 102.44 (5), Stats. The respondent is entitled to a credit against the unaccrued permanent partial disability awarded hereunder in the amount of the remaining overpayment, $14,295.80.

"In addition, certain other amounts are protected in the payment of the unaccrued benefits. These are $3,077.17 as the present value of unaccrued attorney fees, $843.23 as interest credit for advance payment of the fees, and $558.66 in legal costs. Applying these protected amounts to the $31,702 in unaccrued permanent partial disability benefits leaves $27,222.94. From this amount, the respondent is also entitled to the $14,295.80 credit for the overpayment due to the social security offset. After deducting the credit, the amount remaining to be paid to the applicant is reduced to $12,927.14.

"Consistent with department practice, the applicant shall receive one-half of the permanent partial disability rate, and the respondent may retain the other half to apply toward its credit. One half payment will be made in this manner until one of the following first occurs:

(a) the applicant has received all of the amounts due him, in which case payment ends and the respondent retains the remainder; or

(b) the respondent has fully recovered its credit, in which case payment resumes to the applicant at the full monthly rate until he recovers all that is due him.

"In this instance, the applicant will recover the $12,927.14 amount due him before the respondent has recovered its credit of $14,854.46. Thus, payments at the one-half rate will be made to the applicant until he has been paid $12,927.14 and the respondent has retained the same amount toward its credit. At that point, payments end, and the respondent may retain the remainder ($1,368.66) to recover completely its credit.

"The weekly permanent partial disability rate in this case is $121, which works out to a monthly rate of $524.33. Fifty percent of the monthly rate equals $262.165, which is rounded up to $262.17. Therefore, beginning with November 2, 1995, the applicant shall be paid the amount of $262.17 per month until the sum of $12,927.14 has been paid."

The fifteenth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.

The administrative law judge's Interlocutory Order is deleted and the second, third, fourth and fifth paragraphs of the Modified Interlocutory Order set out below are substituted therefor:

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


The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days from the date of this order, the employer and the insurer shall pay the applicant's attorney, Thomas Jacobson, the sum of Three thousand seventy-seven dollars and seventeen cents ($3,077.17) as attorney fees, and Five hundred fifty-eight dollars and sixty-six cents ($558.66) as costs.

Beginning on November 2, 1995, and continuing on the second day of each month thereafter, the employer and the insurer shall pay the applicant, Jeffrey Brazeau, the sum of Two hundred sixty-two dollars and seventeen cents ($262.17) per month until the sum of Twelve thousand nine hundred twenty-seven dollars and fourteen cents ($12,927.14) has been paid.

Jurisdiction is retained for such further findings and orders as may be warranted.

Dated and mailed October 9, 1995
ND 5.35 8.32

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner


a. Amount and calculation of LOEC.

The primary issue briefed by the parties in this case is the extent of the applicant's loss of earning capacity. As part of its consideration of this case, and specifically of this issue, 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 saw nothing in the record that led him to doubt the applicant's testimony about his work experience and wages, except the reference to the $8.50 per hour wage in Mr. Kuemmel's report. He did agree, however, that the applicant did not appear to be a good historian. The administrative law judge emphasized, however, that he believed the applicant was extensively restricted following his very serious work injury.

The commission does not disagree with the administrative law judge's impressions of the applicant's credibility, or his characterization of the applicant's undisputed work restrictions. However, for the reasons explained above, the commission believed the applicant's loss of earning capacity was lower than the amount awarded by the administrative law judge.

The commission's order also provides for payment of only fifty percent of the applicant's award as it accrues to repay an overpayment of temporary total and permanent partial disability. The commission understands that the fifty percent award is consistent with department practice in cases where accrued benefits are significantly less than the amount of overpaid benefits. If the commission applied the full amount of the benefits toward the overpayment as they accrued, the applicant would not receive any benefits for three years.

The administrative law judge's order did not provide for a similar one-half payment. This is because, in the calculation of the award, it was assumed that the applicant's award for the loss of earning capacity for the unscheduled back injury began accruing with the end of temporary total disability back in early 1993. Thus, the calculation assumed that enough (or almost enough) permanent partial disability had accrued to the date of the order to "cover" the overpayment.

However, when the applicant's temporary disability ended in April 1993 the respondent began paying the conceded permanent partial disability benefits for the scheduled ankle injury. Those payments ended on August 7, 1995. The permanent partial disability awarded for loss of earning capacity in this case in fact did not begin to accrue until then. Thus, only eight weeks of accrued disability have accrued to October 2, 1995 to apply to the overpayment.

Lastly, the commission awarded the attorney fee based only on the amount that the loss of earning capacity exceeded the functional disability assessed by Dr. Flatley. As explained more fully in the text of its amended findings, the commission reduced the attorney fee on the belief that the functional disability, if not expressly conceded by the respondent, was never in serious dispute. True, the respondent did not start paying the benefits for the functional disability for the unscheduled back injury when the payments for the scheduled ankle injury ended in August 1995. However, the respondent retained those benefits to protect the overpayment due to the social security offset under sec. 102.44 (5)(a), Stats.

b. Amount of overpayment of TTD and PPD from social security offset.

In its reply brief on its petition for review, the respondent disputes certain figures underlying the calculation of that overpayment. If the overpayment was calculated incorrectly, that, in turn, would affect the calculation of the award for loss of earning capacity. The respondent offers a revised WC-13 as the basis for a recalculation. 

The department originally calculated the total overpayment to be $14,845.63 in its April 7, 1994 computation worksheet. In determining the overpayment, the department assumed that the respondent paid temporary total disability in the amount of $43,245.84 through March 28, 1993, and that permanent partial disability began to accrue on March 29, 1993.

This assumption was well-founded: the department's file indicates the respondent's attorney submitted a WC-13 by letter dated February 10, 1994 showing payment of temporary total disability from June 15, 1988 to March 29, 1993. This is a period of 249 weeks and 3 days, during which the respondent stated it paid $43,245.84, at the rate of $173.42 per week. The correct temporary total disability rate is $173.33 (two-thirds of $260), and it appears the respondent actually paid at this rate, since 249.5 weeks at $173.33 per week equals the represented total payment of $43,245.84. The respondent's attorney later reiterated a payment in that sum to the administrative law judge in a pre-hearing letter dated March 15, 1994.

The department determined that, because of the social security offset, the respondent only owed $28,400.21 during the period from June 15, 1988 to March 29, 1993. Subtracting that sum from the $43,245.84 that the respondent had represented it paid in temporary disability yields the department's overpayment figure of $14,845.63.

Together with its petition for review, the respondent's attorney submitted a revised WC-13 prepared on or after August 7, 1995. In its revised WC-13, the respondent now claims it paid temporary total disability to April 22, 1993, rather than March 29. Specifically, the respondent asserts that it paid temporary total disability from June 15, 1988 to April 22, 1993, or 253 weeks, again at the rate of $173.42 per week. The respondent states that the total payments equaled $45,008.92.

However, 253 weeks at $173.42 weekly rate in fact equals $43,875.26. Based on the earlier WC-13, the commission doubts that the respondent actually paid at the erroneous rate of $173.42 per week, or that it paid a total of $45,008.92. Instead, the commission reads the revised WC-13 to mean the respondent paid 253 weeks of temporary total disability at the correct rate of $173.33 per week, for a total of $43,852.49. Thus, during the 3 week and three day period from March 29 to April 22, 1993, the department assumed the respondent paid permanent partial disability at $121 per week, but the respondent contends it actually paid temporary total disability, apparently at $173.33 per week.

During this period, the applicant's disability benefits were limited to $115.10 by virtue of the social security offset under sec. 102.44 (5), Stats. If the respondent in fact paid the applicant temporary total disability between March 29 and April 22, 1993, it "overpaid" $203.81 during this period {($173.33 per week minus $115.10 per week) times 3.5 weeks.} As explained more fully below, the department did not calculate any overpayment during this period because it thought the applicant was receiving permanent partial disability payments. Consequently, the respondent asks the commission to increase the overpayment determined by the department in the full amount of $203.81.

The revised WC-13 also shows payment of $14,520 in permanent partial disability for the period "from April 1993 until August 7, 1995." The commission infers this to reflect the 120 weeks of permanent partial disability at the weekly rate of $121 for the conceded permanent partial disability associated with the 40 percent disability to the ankle, as enhanced by the sec. 102.53, Stats., multiplier. The parties do agree that the respondent has stopped paying permanent disability entirely on August 7, 1995.

The record also indicates that, upon determining the amount to be paid under ALJ Phillips' award, the department did not calculate a social security offset against the permanent partial disability paid to the applicant in 1993 or thereafter. The department determined that no offset could be taken in 1993 because, after deducting the 20% attorney fee, the amount of permanent partial disability paid to the applicant before the offset ($96.80) was less than the "weekly balance to the employe" ($115.10) for calendar year 1993. However, the permanent partial disability benefits paid in 1993 are attributed to the conceded 120 weeks of disability associated with the scheduled ankle injury, so no attorney fee was in fact awarded on those benefits. See sec. Ind. 80.43, Wis. Adm. Code.

Thus, because the applicant was entitled to and received the full $121 in weekly permanent partial disability benefits before the offset in 1993, and because the amount the respondent was required to pay under sec. 102.44 (5)(a), Stats., was limited to $115.10 per week in calendar year 1993, the respondent overpaid $5.90 for each week it paid permanent partial disability in 1993. On January 1, 1994, the "weekly balance to employe" figure increased to $141.40, so the social security offset ended. However, if the respondent began paying permanent partial disability on April 22, 1993, it would have overpaid benefits from then through December 31, 1993 (a period of 36 weeks and 2 days) in the sum of $214.36.

The commission does not generally recalculate awards based on revised payment figures provided by an insurer after hearing, since this obviously could lead to requests for revised numbers on a weekly or monthly basis. Instead, the commission usually instructs insurers to simply take a credit against the amounts awarded to reflect post-hearing payments.

This case, of course, is not so simple. First, the payments shown in the revised WC-13 were allegedly made well before the hearing was held. Second, the social security offset is involved; this is not the simple matter of just subtracting a payment made from what is ordered paid. Third, the applicant does not, as far as the commission can tell, directly contest the revised WC-13. Fourth, the revised WC-13 shows permanent partial disability payments through August 7, 1995 in the sum of $14,520. The commission infers this represents 120 weeks of permanent partial disability at $121 per week, which would have had to start in the week of April 22, 1993 to end in the week of August 7, 1995. Fifth, the commission considers it extremely unlikely the respondent would intentionally misrepresent its payment of benefits on a WC-13 form, although this record amply demonstrates the potential for unintentional miscalculations. Finally, the commission is concerned that by not addressing the matter at this point, it will simply delay the resolution of an already complicated issue.

For these reasons, the commission accepts the revised post-hearing WC-13, and will recalculate benefits accordingly. The commission feels it must point out that the recalculation with respect to temporary total disability is required because as late as March 1994 the respondent told the department it paid temporary disability only through March 29, 1993. The first instance the respondent's revised figures appear in the file, as far as the commission can tell, is with the August 11, 1995 reply brief on the petition for review. Even the revised WC-13 contains mathematical errors. If the department relied on "incorrect assumptions" in its calculations, the respondent need not look very far for the origin of the error. At any rate, the commission leaves its order interlocutory in part to allow the applicant the opportunity to contest the revised WC-13 if he chooses.

The commission therefore recalculates the overpayment of disability payments as a result of the social security offset to equal $15,263.80. This is determined by adding to the department's original figure of $14,845.63, the adjustments of $203.81 and $214.36 explained above.

The overpayment may also be determined in summary form by subtracting what the respondent should have paid as a result of the social security offset from what it actually did pay. As noted above, the respondent apparently paid, according to its revised figures, $43,852.49 in temporary disability from June 15, 1988 through April 21, 1993 (253 weeks at $173.33 per week), and $14,520 from April 22 to August 7, 1995 (120 weeks at $121 per week), for a total of $58,372.49. The amount the respondent was obligated to pay during this same period may be calculated as follows:

1. From June 15 through November 30, 1988 (24 weeks at $173.33 per week), $4,159.92.

2. From December 1, 1988 through December 31, 1990 (108 weeks and 4 days at $99.32 per week), $10,792.79.

3. From January 1, 1991 through April 21, 1993 (120 weeks and 2 days at 115.10 per week), $13,850.33.

4. From April 22 through December 31, 1993 (36 weeks and 2 days at $115.10), $4,181.93.

5. From January 1, 1994 to August 7, 1995 (83 weeks and 4 days at $121), the sum of $10,123.71).

Thus, the respondent was obligated to pay a total of $43,108.68 during the relevant time period. That amount, subtracted from $48,248.79, equals $15,263.81. That figure (or rather $15,263.80) is used by the commission as the "overpayment" component in calculating the amount due on the award for loss of earning capacity.

The respondent also suggests that the department erred in calculating permanent partial disability in its computation worksheet of April 7, 1994. The department's figure is based on a rating of 20% compared to permanent total disability for the applicant's unscheduled back injury. The respondent suggests the figure should have been based on a 12% rating, as that was the functional assessment given by Dr. Flatley for the unscheduled injury.

However, recalculation based on this point is unnecessary. The commission orders payment of permanent partial disability calculated on a 30 percent loss of earning capacity in this case. Dr. Flatley's functional rating is merged into this figure. The department's pre-hearing effort in April 1994 to gauge the amount of conceded permanent partial disability is no longer relevant.

c. Mitigation of damages.

The respondent also argues that applicant failed to "mitigate his damages," seeking vocational retraining or undertaking a more active job search. The commission specifically considered the applicant's efforts to find work in assessing the loss of earning capacity, as is required under sec. Ind 80.34(1)(h), Wis. Adm. Code. Other than sec. 102.44 (6)(a), Stats., which clearly does not apply since the employer did not offer the applicant re-employment, the commission is not aware of any other provision allowing for the reduction of loss of earning capacity benefits based on an allegedly inadequate job search.

The department may require vocational retraining prior to a permanent disability award, but it is a matter of discretion. The supreme court has stated:

"All that we do here is not to judicially close and lock the door to the possibility that, in appropriate cases, the ILHR Department would be warranted in, at the least, postponing the determination of permanent partial disability for a reasonable period of time until after a claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages."

Transamerica Ins. Co., supra., at 54 Wis. 2d 280 (1972).

As a practical matter, the commission and the department do not normally require evaluation by the division of vocational rehabilitation (DVR) when neither the vocational experts nor the examining doctors recommend it. Further, the record does not indicate that the respondent sought DVR evaluation for the applicant before the hearing. Finally, the applicant testified that the DVR found him not eligible for services. The commission see no basis for requiring retraining under Transamerica in this case.

d. "Ninety day" statute.

The respondent also requested the commission to vacate the administrative law judge's decision and remand this case for further hearing because a decision was not issued within 90 days of the close of the record. However, while sec. 102.18 (1)(b), Stats., does require the department to make its findings within 90 days, it does not provide for rehearing the case or somehow deprive the department of jurisdiction if a decision is not issued within that time. Because no consequences are specified for failing to comply with sec. 102.18 (1)(b), Stats., and because depriving the department of jurisdiction or remanding for additional hearing would only add to the delay, the commission has consistently construed the statute as "directory" rather than "mandatory." Consequently, the commission went ahead with its review in this case.

The court of appeals has recently affirmed the commission's position on this issue in an unpublished case, Wilbur Fish v. LIRC, court of appeals case no. 94-2831-FT, district IV (unpublished decision dated February 9, 1995). See also: State v. Industrial Commission, 233 Wis. 461, 466 (1940); State v. Perry, 181 Wis. 2d 43, 53-54 (Ct. App., 1993); and Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 193-94 (Ct. App., 1985).



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