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

JAMES BLAU, Applicant

PECKS FEED & GRAIN INC, Employer

TRUCK INSURANCE EXCHANGE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1988015510


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

Dated and mailed July 19, 2001
blauja . wsd : 185 : 3 ND § 5.20  § 5.29 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION


In his arguments to the commission, the applicant asserted that the 1000-week limitation of Wis. Stat. § 102.44 (3) was established because once an individual reaches 1000 weeks of permanent partial disability that individual must be considered permanently and totally disabled. The commission rejects this argument.

Wis. Stat. § 102.44 (3), provides that awards for unscheduled permanent partial disability, such as the applicant's award, "shall bear such relation to 1000 weeks as the nature of the injury bears to one causing permanent total disability." The statute further provides that this award is "not to exceed 1000 weeks." Accordingly, the statute contemplates the precise circumstance of the applicant's case, where an injured employee may be entitled to an award of up to but not more than 1000 weeks of permanent partial disability. Wis. Stat. § 102.44 (3) deals solely with awards for permanent partial disability, and does not address or apply to the issue of permanent total disability. Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 92-93, 613 N.W.2d 875 (2000).   If the Act contemplated that a 1000-week permanent partial disability automatically resulted in permanent total disability, the legislature would have made some provision for that fact in Wis. Stat. § 102.44 (3), rather than providing for a contrary result in the form of a permanent partial disability award of up to 1000 weeks. (1)

The applicant argued that the 1000-week limitation in Wis. Stat. § 102.44(3) is in place because once that 1000-week limitation is reached, an individual is "deemed" to be permanently and totally disabled, and should be eligible for permanent total disability benefits rather than permanent partial disability benefits. However, there is no language in the statute to support this argument. As previously noted, Wis. Stat. § 102.44(3) does not address the issue of permanent total disability. Furthermore, were it true that 1000 weeks of permanent partial disability constitutes permanent total disability, the 1000-week limitation in the statute would constitute superfluous language. This is because a permanently and totally disabled individual would not receive any permanent partial disability, let alone more than 1000 weeks of it.

Awards for permanent total disability are provided for in Wis. Stat. § 102.44 (2). Id. at 92. Were the applicant to have sustained one of the enumerated injuries in Wis. Stat. § 102.44(2), such as loss of both arms, there could be no argument that the statute would require payment of permanent total disability. But that is not what occurred in the applicant's case. His back has obviously undergone extremely debilitating surgeries, but his injury is not one of those enumerated in the statute as requiring a finding of permanent total disability. Accordingly, the final sentence of the statute leaves it up to the department, and now the commission, to determine whether his particular factual circumstances constitute permanent total disability.

In determining whether an injured worker is permanently and totally disabled as a result of his injury, the Wisconsin Supreme Court has adopted the "odd lot" doctrine as set forth in Balczewski v. ILHR Dept.,76 Wis. 2d 487, 493, 251 N.W.2d 794 (1977):

"  'An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.' "

Applying these criteria to the case at hand, it is clear that the applicant's continued employment with the employer, together with the accounting skills he acquired through vocational retraining, provide him with a reasonably stable employment market. He does have a future ability to earn a living. The order is appropriately interlocutory with respect to additional disability, and should the applicant lose his job with the employer a reassessment of his permanent disability status would be appropriate. However, it would be unreasonable to find that he is permanently and totally disabled when he has secured stable and ongoing employment with the employer.

cc: 
Attorney Thomas A. Siedow
Attorney Thomas Ogorchock


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Footnotes:

(1)( Back ) Since the statute provides for an award of permanent partial disability "not to exceed" 1000 weeks it is clear that an award of up to 1000 weeks may be made.

 


uploaded 2001/07/23