Wis.LIRC WC Decision: Critchley, Randall - October 17, 1990 - ND � 5.23 - 85 percent rule - to avoid appearance of partisanship in labor disputes, LIRC interprets � 102.44 (6) to allow suspension of determination of eligibility for LOEC while a strike is in progress at an injured employe's employer; once strike has ended, if employe does not have job paying 85 percent of earnings with the employer, then LOEC must be assessed

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

RANDALL B. CRITCHLEY, Applicant

BRENNER TANK, INC., Employer

FIRE & CASUALTY INSURANCE OF CONNECTICUT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 86-006890

The employer/insurer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued on July 19, 1989. The applicant submitted an answer to the petition. At issue is nature and extent of disability and liability for medical expense attributable to the conceded work injury of February 3, 1986.

The Commission has carefully reviewed the entire record in this matter, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, hereby sets aside his Findings and Interlocutory Order and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began his employment with the employer in November of 1975. He worked as a grinder and metal finisher. He began to experience pain in his low back and buttocks which became so severe that he had to stop work on February 3, 1986. He initially sought treatment from a chiropractor, Dr. Craig Wink, and then was referred to an orthopedist, Dr. Everett Bragg.

Dr. Bragg first examined the applicant on March 18, 1986, and diagnosed lumbosacral strain with early disc degeneration at L4-5. On October 26, 1986, Dr. Bragg noted the applicant had shown some improvement since his last exam, and made the same diagnoses. He indicated the applicant was available for light duty with a 30-pound lifting restriction. On March 12, 1987, Dr. Bragg noted there had been little if any overall improvement since October 1986. He again diagnosed chronic lumbosacral strain with mild disc degeneration. He assessed 5 percent permanent partial disability attributable to the injury of February 3, 1986. He assessed lifting restrictions of up to 20 pounds frequently, and 40 pounds occasionally. He recommended only limited bending with no frequent or full twisting.

Subsequent to February 3, 1986, the applicant never returned to work for the employer. On July 30, 1986, the employer offered him work within his then-current restrictions, but he refused it because his union was on strike against the employer. On August 8, 1987, the union terminated its strike against the employer, which was by that time a nonunion employer. On August 20, 1987, the employer sent the applicant a letter requesting him to indicate whether he wished to be considered available for recall. He sent notification that he did wish to be so considered. On January 8, 1988, the employer sent him another letter to "update" its files with regard to those who still wished to be considered for recall. The letter requested the applicant to return a postcard indicating his intentions within three days. The applicant was in Minneapolis looking for other work when this letter arrived at his residence. When he came home on January 19, 1988, he found a letter of termination which had been issued because he had not responded to the letter of January 8, 1988. He immediately telephoned the employer to explain the situation and was told he would be reinstated for eligibility for reemployment. The employer has not offered him reemployment.

On July 29, 1988, the applicant found full-time employment as a custodian for Valley Warehousing in Fond du Lac. As of the date of hearing, he was earning $5.15 per hour at that employment. He was earning $9.48 per hour from the employer when injured, but the wage for that job was reduced to $7.96 per hour when the union was broken. As of June 6, 1988, the wage for the job was back up to $8.40 per hour. The applicant testified that he is seeking more lucrative employment.

The applicant's date of birth is November 1, 1954. He is a high school graduate with no further education or vocational training, except that he has some limited training doing portrait landscape work. Prior to going to work for the employer in 1975, he worked as a general laborer for a canning company.

The applicant's vocational expert, Daniel Kuemmel, noted the factors relevant to assessment of loss of earning capacity and opined that prior to the work injury the applicant had an earning capacity of $8.50 to $10.66 per hour. He found a post- injury earning capacity of $5.05 to $6.85 per hour, and assessed a 45 to 55 percent loss of earning capacity.

The respondent's vocational expert, Jackie Roman, found that if you consider the employer's July 30, 1986 job offer, there was no loss of earning capacity. Based on the applicant's availability for employment other than with the employer, Ms. Roman found a 10 percent loss of earning capacity. Based on the more severe physical restrictions given by Dr. Wink, she found loss of earning to be 30-40 percent.

Consistent with state and federal policies and laws which are intended to avoid any appearance of partisanship in labor disputes, e.g., section 108.04 (10), Stats., and section 7 of the National Labor Relations Act, the Commission interprets section 102.44 (6), Stats., to allow for a suspension of the determination of eligibility for loss of earning capacity, while a strike is in progress at an injured employe's employer. Once such a strike has ended, if the employe does not have a job with a wage paying at least 85 percent of what he/she had earned with the employer, then loss of earning capacity must be assessed. To hold otherwise would indirectly interfere with the right to strike guaranteed in section 7 of the National Labor Relations Act.

The Commission consulted with the Administrative Law Judge, who indicated that his acceptance of the highest assessment of loss of earning capacity was not based on any credibility impressions gleaned at the hearing. He accepted Mr. Kuemmel's assessment of 55 percent loss of earning because he considered Kuemmel's written report to have been well reasoned. However, the Commission considered Mr. Kuemmel to have erred in assuming that Dr. Bragg's physical restrictions limited the applicant to light and sedentary jobs. As noted by Ms. Roman, the fact that Dr. Bragg allowed the applicant to lift up to 40 pounds on an occasional basis would qualify him for selected medium work. The Commission concluded that Mr. Keummel underestimated the applicant's postinjury earning capacity. The difference between what the applicant's date-of-hearing wage would have been if he had remained with the employer ($8.40), and what his date-of- hearing wage was from his new employer ($5.15), amounted to 38.7 percent. However, the applicant is likely to find the more lucrative employment he is seeking, given the indications of representative wages set forth by both vocational experts. In addition, the gap between the figures of $8.40 and $5.15 is more likely to narrow than to widen in the future, given the wage limitations on the employment for which the applicant's skills qualify him. Considering these and all the other relevant circumstances, the Commission concludes that the most accurate assessment of the applicant's loss of earning capacity is 30 percent.

Dr. Bragg's written medical reports are inconclusive with respect to the possibility that future medical care may be necessary, and therefore the order will be left interlocutory.

The applicant is therefore entitled to 300 weeks of compensation for loss of earning capacity, at the applicable rate of $112 per week, for a total of $33,600. Respondent insurer conceded and paid the applicant $5,600 for permanent partial disability, leaving a balance due of $28,000. The applicant's attorney is entitled to a 20 percent fee against this balance, resulting in a future value fee of $5,600. Subtracting an interest credit of $181.05 from the future value fee results in a present value fee of $5,418.95. After subtraction of the future value fee from the accrued compensation, the applicant is owed immediate payment of $12,364.80. The unaccrued balance of $10,035.20 will be paid in monthly installments.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within thirty days from this date, the employer or its insurer shall pay the applicant as accrued compensation for loss of earning capacity the sum of Twelve thousand three hundred sixty four dollars and eighty cents ($12,364.80); and to applicant's attorney, Anthony Welhouse, fees in the amount of Five thousand four hundred eighteen dollars and ninety-five cents ($5,418.95). Beginning on November 15, 1990, and continuing monthly thereafter, the employer or its insurer shall also pay the applicant the sum of Four hundred eighty five dollars and thirty-three cents ($485.33), until he has received the unaccrued compensation amount of Ten thousand thirty five dollars and twenty cents ($10,035.20).

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed October 17, 1990.
ND � 5.23

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc: Joseph Danas, Jr., Attorney
Borgelt, Powell, Peterson & Frauen, S.C.

Anthony W. Wellhouse, Attorney
Gillick, Murphy, Wicht & Prachthauser

185 : CD4194

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