DENNIS GROTH, Applicant

WISCONSIN INDUSTRIAL TRUCK, Employer

AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, 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. Jurisdiction is reserved for such further findings and order as may be warranted.

Dated and mailed December 19, 2001
grothde . wsd : 185 : 1 ND § 5.29 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Wisconsin case law makes it clear that once an applicant establishes a prima facie case for permanent total disability, i.e., that he/she is in the odd-lot category, the burden shifts to the employer/insurer to show that regular and continuous work is available to that applicant. Balczewski v. DILHR, 76 Wis. 2d 487, 493, 251 N.W.2d 794 (1977). (1)

The applicant has two levels of disc trouble on either side of an aging fusion, and it is credible that he experiences severe, ongoing symptoms. There is nothing unreasonable about Dr. Flatley's physical restrictions, which are similar to those given by Dr. Karr. Based on Dr. Flatley's restrictions and Daniel Kuemmel's vocational report, the applicant did establish a prima facie case for permanent total disability.

In discussing respondents' burden in rebutting a prima facie case for permanent total disability, the Balczewski court quoted approvingly from Professor Larson's treatise:

Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption that light work is available. Id. at 495.

The Cabral court rejected as inadequate a vocational expert's opinion that the appellant "would be available for a limited number of jobs in the local economy," and that he "would qualify for select positions such as small parts assembler., cashier, fast food worker, dishwasher, [etc.]." The court noted that this opinion offered nothing more than speculation and presumption relative to the question of availability of work for Cabral. The court noted that a "presumption" that work is available for the applicant is not sufficient to rebut a prima facie case of permanent total disability, but that a showing of actual availability of regular and continuous employment is the burden for rebutting the prima facie case.

In the case at hand, respondents' vocational expert, Ms. Hillestad, provided nothing more than a generalized listing of jobs which she believes or presumes the applicant would be physically qualified to perform. She failed to demonstrate that any of these jobs were actually available to the applicant, particularly considering his severe physical restrictions including the necessity for getting up and moving about. The prima facie case was not rebutted and therefore a finding of permanent total disability is required.

As with virtually all cases involving permanent total disability, the order is interlocutory. Should respondents demonstrate at some point in the future that regular and continuous employment is actually available for the applicant, a reassessment of the finding of permanent total disability may be in order.

cc: 
Attorney James C. Gallanis
Attorney Michael C. Frohman

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(1)( Back ) See also the unpublished court of appeals opinions Rogelio Cabral v. LIRC, et al., No. 94-3309-FT (Ct. App. Dist. 1, December 12, 1995; Harry D. Morey v. LIRC, et al., No. 95-0673-FT (Ct. App. Dist. 4, December 21, 1995).

uploaded 2001/12/21