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

ROBERT E GALLIPEAU, Applicant

UNITED PARCEL SERVICE INC, Employer

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997052401

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.

ORDER

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

Dated and mailed February 20, 2001
galliro . wsd : 175 : 3   ND § 5.29

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION


The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant was permanently and totally disabled as a result of his work injury in September 1997. The employer states that the administrative law judge erred in stating that the employer's vocational expert, Ms. Seeman, did not take into account the applicant's restrictions that he could sit or stand on an occasional basis, as well as restrictions of no bending, twisting and stooping. The commission finds that it is implicit in Ms. Seeman's report that she did take into account the applicant's restrictions in lifting no more than 20 pounds and occasional sitting, standing, bending and twisting. Ms. Seeman noted that the applicant had been assigned permanent work related restrictions by Dr. Dillon and Dr. Kihm, which are considered light from a physical standpoint, and require some flexibility on his ability to sit and stand. Although Ms. Seeman did not specifically address how these restrictions might be impacted by work in a convenience store or as a security guard, the commission finds that it is implicit in her report that she considered that the applicant could perform this work given his restrictions.

However, the applicant testified that he could not sit or stand for long periods of time and that he has constant pain with radiation and numbness in to his lower extremities. The applicant made a good faith effort to return to work with the employer in the summer of 1998 but could not perform the work. The applicant is not able to consistently operate a vehicle for any distance given his need for pain medication as well as his stimulator. The applicant's testimony is consistent with his medical records demonstrating consistent complaints of back pain and radiculopathy, and the commission finds the applicant's testimony concerning the nature of his ongoing pain and restrictions to be credible.

Dr. Kihm noted that the applicant's spine condition is totally unsuitable for any work which would involve even moderate lifting, and he is unable to be on his feet for continuing periods of time and he would need stand to sit work, and would have a 20 pound lifting restriction with no repetitive lifting, bending, squatting or stooping. Mr. Weigert specifically stated he was unable to identify any type of work which the applicant could reasonably expect to perform on a sustained basis, and that his low academic skills and inability to stand or sit any longer than on an occasional basis would rule out the commonly available retail or convenient store/gas station clerk jobs. Mr. Weigert noted that light duty cleaning or security jobs would exceed his restrictions as would light or sedentary factory jobs.

The evidence indicates that the applicant did not complete high school and that he had very low levels of reading ability as well as mathematical skills. Even Ms. Seeman noted that the applicant was not a good candidate for DVR retraining given his low academic skills and his age. Dr. Dillon assigned permanent restrictions of ten pounds frequent lifting, twenty pounds occasional lifting, occasional sitting, driving, walking, squatting, bending, twisting, climbing and occasional overhead and foot movements. The employer had no work within the applicant's restrictions, and the evidence did not indicate that the applicant could return to work as a driver which was the type of work that he had performed for the employer for almost 30 years prior to his work injury on September 22, 1997. The commission credits Mr. Weigert's assessment. Given the applicant's back injury and subsequent surgeries and related restrictions, and given his lack of education and his work history of almost 30 years as a driver at work he can no longer perform, and based on Dr. Dillon's assessment of permanent disability and restrictions as well as the report of Dr. Kihm, and given Mr. Weigert's vocational assessment, as well as consideration of the other factors contained in DWD § 80.34 of the Wisconsin Administrative Code, the commission finds that the applicant was permanently and totally disabled as a result of his work injury on September 22, 1997.

cc: ATTORNEY TONY WELHOUSE
WELHOUSE LAW OFFICE

ATTORNEY TIMOTHY J YANACHECK
STILP & COTTON

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