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

CHRISTINE SCHULTZ, Applicant

SERVICE AMERICA CORPORATION, Employer

ORTHOPAEDIC ASSOCIATES OF WAUKESHA

HOME INSURANCE COMPANY OF AMERICA, Insurer

THRESHERMENS MUTUAL INSURANCE COMPANY

WORKER'S COMPENSATION DECISION
Claim Nos. 89034766, 93007271

The administrative law judge issued her Findings of Fact and Interlocutory Order in this case on May 9, 1994, following a hearing on March 10, 1994. 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 $274.00, and a May 30, 1989, compensable injury. The respondent conceded and paid $493.21 for temporary disability and $3,750 for permanent partial disability at 3 percent compared to total disability the body as a whole. The issues are the nature and extent of disability beyond that conceded, liability for additional medical expenses, and liability for vocational retraining benefits. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. The commission hereby affirms the administrative law judge's Findings of Fact, Conclusions of Law and Interlocutory Order, except as modified herein:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

2. The fourteenth and fifteenth paragraphs of the administrative law judge's Findings of Fact and Conclusions of Law is deleted and the following substituted therefor:

"The next question is whether or not the applicant is entitled to retraining benefits beyond the first 40 weeks. The Massachusetts Bonding limitation on the scope of review of DVR's findings with respect to vocational rehabilitation does not apply after the first 40 weeks of retraining. Section 102.43 (5), Stats., specifically indicates the legislature's intent that the department of industry, labor and human relations determine whether training after the first 40 weeks is warranted before deciding whether to award temporary disability benefits or travel and maintenance expense beyond that period.

"In this case, the commission agrees that training beyond forty weeks was warranted. The retraining program will increase the applicant's chances to obtain work she can physically perform, and so help restore earning capacity and potential that she lost as a result of her work injury. The applicant is highly motivated, doing well in school, and her chances of success are good. The applicant's disability is serious, making it likely that she would not find work paying her prior wages with out retraining. These factors rebut the presumption against additional weeks of retraining under sec. IND 80.49 (3), Wis. Adm. Code.

"However, the commission cannot conclude that training beyond the two years the applicant would have needed to become an occupational therapist's assistant is warranted. The applicant's program was changed from training as an occupational therapist assistant at a technical school to coursework at a four-year college leading to certification as an occupational therapist because the later position better fit her physical restrictions. Specifically, a DVR counsellor testified that the assistant work required too much bending. However, the commission does not find this explanation particularly persuasive. The DVR counsellor did not explain why the applicant could not have been switched to another two-year program that both eliminated bending and restored the applicant's earning capacity and potential.

"In sum, the course of training beyond the two years she would have received at a technical school exceeds the training warranted to restore the applicant's pre-injury earning capacity and potential. Accordingly, the applicant is entitled to retraining benefits for up to 104 weeks total (64 weeks beyond the 40-week period set out in 102.43 (5), Stats."

The remaining paragraphs of the administrative law judge's Findings of Fact and Conclusions of Law are affirmed and reiterated as if set forth herein. The administrative law judge's Interlocutory Order is affirmed and reiterated as if set forth herein.

Dated and mailed January 31, 1995
§ 5.35

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). The commission did not modify the administrative law judge's order because of a different impression of witness credibility, but rather because it reached a different legal conclusion on the substantially the same set of facts.

The respondent requested the commission to apply the social security offset against the benefits paid for vocational rehabilitation under sec. 102.43 (5), Stats. However, the commission declines to do so, consistent with the department's policy against such allocation. This policy is set out in a letter from Chris M. Faulhaber, Worker's Compensation Division Administrator to all insurance carriers and self-insured employers, dated August 1, 1987. See: Allen Roofing and Construction v. LIRC and Matthew J. Flynn, Court of Appeals case no. 93-0892, District IV unpublished decision (March 31, 1994); and Neal & Danas, Worker's Compensation Handbook, sec. 5.35 and appendix 4, Exhibit G (3d ed., 1990). The rationale behind this policy is simple: the amounts paid for vocational retraining are not, strictly speaking, temporary disability benefits, but rather benefits for vocational rehabilitation paid at the temporary total disability rate.

cc: ATTORNEY STANLEY J LOWE
WHITE & LOWE

ATTORNEY JULIE J DARNIEDER
MUELLER GOSS & DARNIEDER SC

ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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