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


ROBERT J BLASCZYK, Applicant

SCHOOL DIST OF ELMBROOK, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-068747


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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.

INTERLOCUTORY ORDER

The findings and interlocutory order of the administrative law judge are hereby affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed February 28, 2001
blascro.wsd : 185 : 8   ND § 5.27

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission carefully reviewed all of the facts presented in this case. This review included consideration of the prior back injuries in 1979 and 1981, the injury and laminectomy in 1991, and the additional injury in 1992 resulting in an additional permanent partial disability award of five percent. It also included full review and consideration of the records from Dr. Stoll, Dr. Vasudevan, Dr. Vosters, and Dr. Bolt. The applicant takes issue with the conclusions Dr. Stoll drew in his report dated February 4, 1998, but Dr. Stoll was the applicant's primary treating physician and he found himself "completely baffled" by the applicant's upper extremity complaints, and noted that the applicant's symptom complaints far outweighed any expectation of an organic explanation. The fact that Dr. Stoll did not mention the records of Dr. Vosters or Dr. Bolt does not undercut Dr. Stoll's firsthand medical assessment of the applicant's condition.

It is also significant that while Dr. Vosters included the applicant's disc herniations at T9-10 and T10-11 in his assessment of permanent partial disability, no physician in the record ever attributed these herniations to the applicant's employment. In fact, Dr. Stoll specifically opined that they were not work related. Dr. Bolt was the only physician who opined that the applicant was so disabled as to be unable to do any work, and this opinion was based on a single examination, with Dr. Bolt relying substantially on the applicant's subjective statements concerning how long he could continuously sit or stand. When weighed against the other medical reports, all of which find that the applicant is physically capable of working, Dr. Bolt's opinion is not credible. Accordingly, the commission concurred with the administrative law judge that the applicant had not presented a prima facie case for permanent total disability, but that considering his physical limitations, age, education, work experience and training, previous wage, and efforts to seek suitable employment, he has sustained a 70 percent loss of earning capacity.

Respondents asserted that the applicant's loss of earning capacity award should be based on 900 weeks instead of 1000 weeks, because due to his two previous permanent partial disability awards of five percent each, he was not a "whole person" as contemplated in Wis. Stat. § 102.44(3). But Wis. Stat. § 102.44(3) provides that unscheduled permanent partial disability awards ". . . shall bear such relation to 1000 weeks as the nature of the injury bears to one causing permanent total disability . . . not to exceed 1000 weeks." There is no authority in this statute, or anywhere else in Chapter 102, for reducing the 1000-week basis by previous permanent partial disability awards. Were such reduction to be applied, after an initial award for five percent had been made, 50 weeks would have to be subtracted from the 1000-week base. Then a second award for five percent would be calculated using a 950-week base yielding a 47.5-week award and a 902.5-week base, and so on for subsequent awards. An employee could never exceed 1000 weeks of compensation because the base would diminish with each award, and this would make the last clause of Wis. Stat § 102.44(3) superfluous (the clause which provides that weekly indemnity cannot exceed 1000 weeks). Even were there authority in the statutes for using something other than the 1000-week basis to calculate loss of earning capacity, there is no indication that either the respondents' or the applicant's vocational expert contemplated any other basis when arriving at their estimated percentages of loss.

cc:
Attorney Michael J. Hicks
Attorney Peter L. Topczewski


Appealed to Circuit Court. Affirmed November 20, 2001.  Appealed to Court of Appeals.  Affirmed (summary disposition) July 3, 2002. 

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/03/02