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

MARC ADLER, Applicant

CVSI, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-060673


The employer submitted a petition for commission review alleging error in the administrative law judge's findings and interlocutory order issued on April 24, 2001. The applicant submitted an answer to the petition and both parties submitted briefs. At issue is whether the applicant was permanently and totally disabled as a result of his work injury on October 26, 1998.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the findings and order below and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who worked for the employer as a computer consultant, was involved in a severe automobile accident while working for the employer on October 26, 1998, when the vehicle he was driving was struck head on by a semi-tractor trailer, and he sustained catastrophic injuries. As a result of the accident the applicant lost vision in his right eye, lost his left leg at the hip, and severely injured his left elbow, hand and thumb. The applicant underwent several surgeries and was released from the hospital in April 1999. The applicant's treating physician, Dr. Haaland, indicated in his medical report dated July 16, 1999, that the applicant had undergone a left hemipelvectomy, an open reduction and a internal fixation of a fractured dislocation of the left elbow, a carpal tunnel syndrome was necessary for median neuropathy, a left hand deformity developed due to compartment syndrome infection and loss of muscle function within the left hand, and multiple contractures developed in his left hand, and the head injury left him blind in his right eye. The applicant also required colorectal surgery for removal of his rectum and a permanent colostomy, and he has severe sexual dysfunction to the point of impotence. The applicant injured his left hand and thumb to such a degree that he is unable to bend the thumb and has lost abduction.

Dr. Haaland stated that the major injury was the injury to his left lower extremity for which a hemipelvectomy had to be performed which is the primary impairment that leads to his disability. Dr. Haaland stated that the scheduled component would be 100 percent disability of the left leg due to amputation at the hip, and the impairment to the applicant's left hand for the loss of the median nerves sensory function equivalent to 65 percent permanent partial disability rating of the left hand. Dr. Haaland found that the loss of use of his left thumb, and the anklylosed fixed abduction position would equal 90 percent loss at the thumb.

Subsequent to his release from the hospital in April 1999, the applicant moved to California where he began consulting on a self-employed basis. The applicant testified that he entered a highly competitive field as a consultant with a telephone conglomerate. The applicant testified that for the latter six months of 1999 he had an income of $50,000.00, and for the year 2000 he had an income of about $100,000.00.

The applicant testified that he subsequently started a consulting firm and he has a business partner doing similar work to what he was doing on his own. The applicant's primary clients are venture capital firms, and he outsources services to investment opportunities that are in the second round of a pre-public offering stage, and the applicant's company acts as a consultant. The applicant testified that with estimated growth and bringing more consultants on board that his business would grow to gross between $700,000.00 and $1,000,000.00 a year. The applicant is a 50 percent partner in the business profits. The applicant testified that his continued employment turned upon his technical knowledge and business savvy, and he considered himself as sharp a person now as he was prior to the work injury. The applicant testified that he did not feel that his physical disabilities would present any impairment to his current employment, and he did not feel that his current physical disabilities would affect his ability to earn what he considered to be a good wage. The applicant testified that despite his disabilities, he feels he is able to compete in the marketplace with other individuals providing similar services. The applicant admitted that there were times when his disabilities caused obstacles in his ability to perform his work, but he was able to travel and use airplanes as needed, and he has full expectation that he will be able to continue in his current work.

The applicant brought a claim specifically for permanent total disability based on his scheduled injuries only, pursuant to Wis. Stat. § 102.44(2). Wis. Stat. § 102.44(2) provides that total impairment for industrial loss of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. The statute further provides that this enumeration is not exclusive, but in other cases the department shall find facts. The applicant asserts that his combination of scheduled injuries due to his work-related accident on October 26, 1998, are equivalent to those enumerated by Wis. Stat. § 102.44(2) and constitute permanent total disability. The statute gives the department the discretion in cases involving scheduled disabilities, other than those listed in the statute, to find the facts to determine whether such disabilities are commensurate to those enumerated in the statute.

The employer contends that the effort to find the facts should include a review of whether the applicant's disability has affected his employability and wage earning capacity in the general labor market. The commission agrees. The department is confronted with the responsibility to find the facts. Under the statute, the department is given the discretion to find the facts which presupposes that there is some type of inquiry and analysis prior to reaching the conclusion that the applicant's scheduled injuries are commensurate to those listed in the statute. The commission finds that in order to find the facts to determine whether an applicant is permanently and totally disabled, the analysis must include a vocational component similar to the one performed when an applicant claims that he is permanently and totally disabled due to his unscheduled injury on an odd lot basis.

The applicant states that nowhere in the text of Wis. Stat. § 102.44(2) does the statute provide that loss of earning capacity is at all relevant, let alone the controlling test to be applied in determining whether an injured worker who has suffered a combination of severe scheduled injuries, should be entitled to permanent total disability benefits. The applicant points to the fact that if he had suffered the types of scheduled disabilities listed in Wis. Stat. § 102.44(2), such as the loss of use of both eyes and the loss of both arms or both legs, that he would have been entitled to permanent total disability benefits regardless of the fact that he had returned to work and was earning a good salary. However, to accept the applicant's contention that no such analysis is warranted under the statute, ignores the statutory language which gives the department the discretion to find the facts in such cases. The commission finds that in order for the department to find the facts under Wis. Stat. § 102.44(2), the inquiry must include at least a vocational analysis to determine whether the applicant 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. The department's determination of whether or not an applicant is permanently, totally disabled is not to be made in a vacuum. An analysis of whether or not the applicant is able to find and maintain employment after his work injury, and whether there is a realistic job market available to the applicant within his restrictions provides the department a reliable, factual basis to determine whether an applicant is permanently and totally disabled. The statute does not provide that in other cases the department shall determine which combinations of scheduled injuries are commensurate with those listed in the statute. Rather, the statute more broadly states that the department shall find the facts.

In the current case, the applicant has admitted that he feels he is capable of performing the work that he is currently doing, and he has full expectation that he would be able to continue in his current work. The applicant can be competitive in the marketplace, and he is as sharp an individual as he was before his work injury, and his disabilities do not prevent him from performing and succeeding in his current work. The evidence indicates that the applicant is earning a good salary in his current work, and that his expectations are for his business to grow. The applicant has a number of skills as a consultant, which he is applying in the marketplace, much to his credit given his several debilitating injuries due to his tragic accident.

However, based upon a review of all the evidence in the record and given an analysis of the applicant's testimony, and given his ability to return to work and compete in the marketplace over an extended period of time within his restrictions, and given the evidence of an ongoing and expanding market for his services, the commission finds that the applicant is not permanently and totally disabled based on his scheduled injuries only pursuant to Wis. Stat. § 102.44(2). The commission finds that based on the facts presented in this case that the applicant's claim for permanent total disability benefits must be dismissed. Now therefore this


ORDER

The findings and order of the administrative law judge are set aside and the commission's finding and order substituted therefor. The applicant's claim for permanent total disability based on his scheduled injuries only is hereby dismissed.

Dated and mailed March 21, 2002
adlerma . wrr : 175 : 8  ND § 5.30

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

 

NOTE: The commission did not consult with the administrative law judge concerning his assessment of the demeanor and credibility of the witnesses. The commission's decision was not based on a differing interpretation of the witness's demeanor and testimony in this matter. Rather, the commission has reached a different legal interpretation of the requirements provided for under Wis. Stat. § 102.44(2). 

cc: 
Attorney Edward E. Robinson
Attorney Roland C. Cafaro


Appealed to Circuit Court.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/03/25