ROBERT J SCONZERT, Applicant 

BAY ENGINEERED CASTINGS INC, Employer

TRAVELERS INSURANCE CO, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 28, 2001
sconzro . wsd : 132 : 1  ND § 5.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant has petitioned for commission review of the administrative law judge's findings and order that awarded 7 percent functional permanent partial disability for loss of use of the right foot. The commission has reviewed the record in this matter and agrees with the administrative law judge's findings and conclusions. Dr. Barnes' July 25, 2000, examination and IME Dr. Lemon's May 3, 2000, report both indicate that applicant had full range of motion of the ankle. In fact, Dr. Barnes' July 25, 2000, report indicated that applicant was doing much better. The physical examination was noted to be "essentially unremarkable." The findings of the July 25, 2000, examination are at odds with the elements of disability listed in Dr. Barnes' February 9, 2000, WKC-16-B. Further, a 45 percent rating is excessive in light of the percentages set forth in Wis. Admin. Code § DWD 80.32 for various limitations of the ankle. Under Wis. Stat. § 102.18(1)(d) an award which is within 5 percent of the highest or lowest estimate of permanent partial disability made by a practitioner is presumed reasonable, as long as it is not higher than the highest or lower then the lowest estimate in evidence. However, that statutory section does not prohibit deviating from the 5 percent range. The record in this case requires such a deviation from the 5 percent range. The administrative law judge set forth her reasoning for such deviation and the commission agrees with such reasoning. For these reasons, and for the reasons set forth in the finding and order of the administrative law judge, the commission affirms such findings and order.

cc: 
Attorney William B. Kulkoski
Attorney Stuart F. Roitburd

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uploaded 2001/07/02