PATRICK KLEIKAMP, Applicant

ANSUL INC, Employer

ANSUL INC, Insurer

In September 1999, the applicant filed an application for hearing alleging disability from contact dermatitis sustained as an occupational disease. Hearings were held on the application before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on July 17, 2000, and October 10, 2000, with a close of the record on January 3, 2001.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $600.40 and that the applicant suffered a compensable, occupational contact dermatitis on or about October 2, 1996. Department records, however, showed no payment to the date of the hearing.

At issue before the ALJ was the nature and extent of the applicant's disability. Specifically, the applicant claimed 15 percent permanent partial disability to the body as a whole on a functional basis, 50 percent loss of earning capacity, and temporary disability for various days in January through May 1999.

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 modifies the ALJ's findings and order as follows:

The first 21 paragraphs of the Administrative Law Judge's Findings of Fact and Conclusions of Law are affirmed and adopted by the commission, and reiterated and set forth herein as if found by the commission.

The remaining paragraphs of the Administrative Law Judge's Findings of Fact and Conclusions of Law, are deleted and the following substituted therefore:

"The fact remains that, following a review of available medical records and history, and following objective vocational testing, MDCD certified the applicant under the federal vocational laws. Despite a job search, the applicant has been unable to find work, and even assuming he could perform the janitorial work the employer offered him, he would suffer a considerable wage loss. In addition, the applicant is a relatively young worker, who has been able to perform successfully for many years in employment with the employer. The facts of this case may 'warrant . . . postponing the determination of permanent disability for a reasonable period of time until after the [applicant] completes a competent and reasonable course of . . . vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages.' Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 280 (1972). Consequently, no award for loss of earning capacity shall be made at this time. Instead the applicant's eligibility for compensation under Wis. Stat. § § 102.43(5) and 102.61 shall be considered instead.

"Under Wis. Stat. § § 102.43(5) and 102.61, if a worker is entitled to receive and has received workers compensation, and is entitled to receive and is receiving instruction under the federal vocational rehabilitation laws as administered by the state in which the worker resides, he or she is eligible for certain expenses as well as weekly payments at the temporary total disability rate. Once it is determined that the applicant has a compensable injury and the state agency administering the federal vocational rehabilitation laws certifies the worker for retraining, the authority of the commission and the workers compensation division in such cases is somewhat limited. Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957).

"In Massachusetts Bonding, the court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the state board of vocational and adult education. (1)  The court noted that the Industrial Commission (2)  had no power to review the acts of the state board. The court held that the Industrial Commission was required to find that an injured worker receiving retraining authorized by the state board was entitled to the retraining, unless the commission concluded that (a) highly material facts were withheld or misrepresented to the state board or (b) the state board's interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power. Massachusetts Bonding, at 275 Wis. 512.

"In this case, the respondent asserts that it did not have notice that the applicant's eligibility for vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61 were at issue. On the question of notice in the context of administrative procedure in worker's compensation cases, the court of appeals has noted:

`The elements of "fair play" are: (1) the right to reasonably know the charges or claims; (2) the right to meet such charges or claims with competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence presented.'

Wright v. LIRC, 210 Wis. 2d 289, 296 (Ct. App. 1997).

"Here, the issue of the applicant's eligibility for benefits under Wis. Stat. § § 102.43(5) and 102.61 was not raised in the application for hearing or included in the notices of hearing. However, a partial transcript of the July 19, 2000 hearing includes the following colloquy:

COURT: . . . In defense of the claim, the Respondent contends that work was always available at the Applicant's pre-injury wage; at all times, that work was available. In the alternative, Respondents contend that the Applicant is pursuing a course of retraining, and that therefore a loss of earning capacity claim at this time is premature.

Is that a correct statement of what's been conceded and what's at issue in this case? Mr. Feldman?

ATTORNEY FELDMAN: It is, Judge.

COURT: Would you agree, Mr. Burnett?

ATTORNEY BURNETT: I would.

Partial Transcript from July 19, 2000, page 3.

"The colloquy indicates that the parties understood the applicant was pursuing vocational retraining from MDCD, and that the respondent believed that retraining might decrease the applicant's loss of earning capacity. However, the colloquy does not establish that the applicant was making a claim for compensation under Wis. Stat. §§ 102.43(5) and 102.61 during his retraining. Indeed, the issue of vocational retraining was raised by the respondent as a defense, not by the applicant in claim for compensation. Rather, the applicant was seeking the immediate payment of compensation for loss of earning capacity, which in many respects is inconsistent with a concurrent claim for vocational rehabilitation benefits. The colloquy does not establish notice of a claim by the applicant for compensation under Wis. Stat. § § 102.43(5) and 102.61, or waiver of notice of that issue. Nor have the parties identified any other statement on the record that establishes notice of waiver of notice of the issue.

"Consequently, the respondent is entitled to further hearing before payment of compensation may be ordered under Wis. Stat. § § 102.43(5) and 102.61. However, upon further hearing the parties shall not relitigate the issues of whether the applicant was certified by MDCD or whether suitable work was available to the applicant with the employer. Those issues are resolved under this order based on the record from the prior hearings, and were encompassed within the respondent's defense set out in the colloquy above. Rather, further hearing shall be confined to the issue of whether, notwithstanding the MDCD's certification of the applicant for vocational retraining, benefits under Wis. Stat. § § 102.43(5) and 102.61 may denied under the circumstances permitted in Massachussetts Bonding, supra.

"Jurisdiction is expressly reserved on the temporary disability issue, potential future loss of earning capacity, and the retraining issue. In addition, all other claims under the Worker's Compensation Act shall remain open."

The Administrative Law Judge's INTERLOCUTORY ORDER is set aside, and the commission's INTERLOCUTORY ORDER set out below is substituted therefor.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed. The matter is remanded for further hearing and decision on the applicant's entitlement to vocational retraining benefits under Wis. Stat. § § 102.43(5) and 102.61.

Jurisdiction is reserved for such findings, orders and awards as may be warranted, consistent with this decision.

Dated and mailed October 31, 2001
kleikap . wrr : 101 : 9 ND § 8.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Both parties have appealed the ALJ's decision. On appeal, the respondent asserted that the applicant did not have a condition that prevented him from working for the employer, and that the applicant unreasonably refused work offered to him by the employer. The respondent also asserts that the ALJ erred in finding the applicant is entitled to vocational benefits, as that issue was not noticed for hearing. The respondent further asserts that the order was an abuse of discretion as it was prospective nature.

The applicant, for his part, asserted that the ALJ erred in failing to fully award all the temporary disability claimed, and in failing to award benefits for loss of earning capacity. In his July 17, 2001 reply brief, however, the applicant acknowledged support for the ALJ's conclusion that vocational retraining benefits were appropriate, and the applicant offered no argument about the temporary disability benefits. The commission therefore shall discuss only the respondent's petition for review.

1. Continued employment with the employer.

The respondent concedes that the applicant's work exposure caused the applicant to experience a compensable injury, contact dermatitis, on or about October 6, 1996. Indeed, its independent medical examiner, David A. Goodman so opined. Dr. Goodman also opined the applicant should no longer "be involved in the production process at Ansul" as a result of his occupational dermatitis. Exhibit 1, July 2000 Report of Goodman, page 8.

The respondent denies, however, that the applicant's condition justified him quitting employment with the employer altogether. On this point, Dr. Goodman opined that the applicant's contact dermatitis did not preventing him from doing warehouse work or janitorial work. Exhibit 1, July 2000 Report of Goodman, pages 8-9.

Dr. Goodman does acknowledge that the applicant did have symptoms or problems while working in the warehouse. Indeed, Dr. Goodman agreed the applicant's complaints while working at the warehouse were genuine. However, he did not think the main complaints, conjunctivitis (swelling of the eyelid) or itchy eyes, were from contact dermatitis, but rather "idiopathic environmental intolerance." This, Dr. Goodman continued, is a set of symptoms (itchy eyes, fatigue, malaise) or syndrome without a known cause, also called multiple chemical sensitivity. Dr. Goodman testified not enough is known to determine whether that condition was work-related, or due to other things, so that no doctor can opine with reasonable certainty that it is work-related.

However, Dr. Goodman's opinion addresses only the "itchy eye" complaints, or the applicant's eye swelling or conjunctivitis complaints. The applicant also had a rash on his hands after working in the warehouse, as noted by Dr. Zondolo on physical examination in April 1999. A rash in the arm, and its connection to the 1999 warehouse work, is supported also by the May 1999 record of the employer's nurse that the applicant's arms cleared up with time off work. Exhibit Q. Clearly, Dr. Zondolo observed something more than simple conjunctivitis or redness of the eye.

One could question whether the hand or arm rash may have been caused by exposure off duty, as the applicant had been able to work for almost a year in the warehouse and only needed medical attention on two or three occasions. However, the rash cleared when the applicant was off duty in April 1999. Further, Dr. Zondolo's May 6, 1999, letter refers to the rash flaring upon returning to work. The commission is satisfied that the flare-up of the rash was caused by the applicant's exposure while working in the warehouse.

The commission must also observe that applicant worked for the employer for almost 20 years without problems. He then experienced disability from contact dermatitis that the respondent's independent medical examiner admitted was work-related. On reassignment to various jobs, he experienced continuing symptoms requiring his removal from production work. Even on assignment to the warehouse, he continued to experience symptoms that are allergic in nature, and which the respondent's independent medical examiner again admits are genuine. On this record, the commission, like the ALJ, concludes that the work injury precluded work as a warehouse worker.

According to the applicant's unrebutted testimony, the janitor job paid slightly more than half of his pre-injury wage ($8.80/15.00=58.6667%). That is well below the 85 percent standard governing eligibility for an award for loss of earning capacity based on re-employment by the time-of-injury employer under Wis. Stat. § 102.44(6). It is also below the 85 percent threshold formerly used by the Wisconsin Division of Vocational Rehabilitation (DVR) as a basis for permitting retraining in workers compensation cases, (3)  assuming that standard is relevant under current law in a case involving certification by a Michigan agency. The applicant's refusal to continue in the janitor job, quite apart from the origin of the symptoms he experienced working in that job, should not affect his claim. In any event, the applicant testified credibly that the problem or symptoms with his eyes flared up when he worked as a janitor, so the work injury prevented him from doing that job as well.

In sum, then, the applicant sustained disability from contact dermatitis caused by work. That disability prevented him from working for the employer. The commission affirmed the ALJ's findings in this regard.

2. Decision on the claim for vocational retraining benefits.

For the reasons set out in the amended findings above, the commission concluded that the respondent was entitled to further hearing on the issue of vocational retraining benefits.

The commission conferred with the presiding ALJ on the question of notice. He reported that the parties and he had discussed the possibility of the ultimate award including an order for vocational retraining benefits in discussions off the record before both hearings. He pointed out as well that Susan Caron of the Michigan Department of Career Development, testified at the July 19, 2000, hearing, and could have been questioned by either party concerning the vocational rehabilitation claim.

The commission has no doubt that the prehearing discussions off the record occurred exactly as the presiding ALJ described them. The commission also notes that the colloquy between the ALJ and the attorneys at the outset of the hearing on July 19, 2000 could be interpreted to waive notice on the issue of vocational retraining benefits, as part and parcel of the respondent's defense that a loss of earning capacity award was premature. The commission also appreciates the legitimate concern of judicial economy, and that its decision may have the effect of protracting an already lengthy litigation. However, after careful consideration of all these factors, the commission concluded that further hearing on the limited issue of vocational retraining benefits is nonetheless the more appropriate course.

cc: 
Attorney George Burnett
Attorney Douglas M. Feldman

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(1)( Back ) The Division of Vocational Rehabilitation now administers the federal vocational rehabilitation laws in this state.

(2)( Back ) The Industrial Commission was the predecessor of the Department of Workforce Development and the Labor and Industry Review Commission.

(3)( Back ) DVR's abandonment of this test led the management members of the Worker's Compensation Council to propose that a similar test (at 90 percent) be inserted into Wis. Stat. § 102.61 by the Council's "agreed-upon bill." The proposal was accepted, and separate versions of the agreed-upon bill containing the proposal have recently been passed by the state legislature. See: 2001-2002 Wisconsin Legislature, Assembly Bill 505, SECTIONS 44 and 45; and 2001-2002 Wisconsin Legislature, Senate Bill 505, SECTIONS 44 and 45. See also: Council on Worker's Compensation Meeting Minutes, Madison, Wisconsin, April 19, 2001 (Management Proposal 2001 number 7). The Council's minutes are available on the Internet at http://dwd.wisconsin.gov/wc/councils/wcac/minutes_04_19_01.htm.

uploaded 2001/11/02