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

ROBERT MANSKE, Applicant

RASCH CONSTRUCTION & ENGINEERING, Employer

VIRGINIA SURETY CO INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-016330


In November 1998, the applicant filed an application for hearing claiming a compensable injury on March 23, 1998, and seeking, among other things, vocational retraining benefits under Wis. Stat. § § 102.43(5) and 102.61. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing in the matter on August 8, 2000.

Prior to the hearing, the employer and its insurer conceded jurisdictional facts, a compensable injury as described by the applicant, an average weekly wage resulting in the maximum compensation rates for injuries occurring in 1998, and payment of temporary and permanent disability compensation as documented in a Supplementary Report on form WKC-13. At issue is the applicant's claim for vocational retraining benefits under Wis. Stat. § § 102.43(5) and 102.61(1), and the appropriateness of an interlocutory order on that claim.

On December 1, 2000, the ALJ issued his decision in this case. The employer and its insurer (collectively, the respondent) filed a timely petition for commission review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1968. On March 23, 1998, he fell six feet from scaffolding while working as a mason. He injured his hip and low back, and sustained a concussion.

Following the injury, the applicant began a course of treatment that included chronic pain management with James Lincer, M.D. The applicant also suffered from depression as a result of his continuing pain and physical restrictions.

In the summer of 1998, while the applicant was still on temporary restrictions, the employer provided work within his temporary restrictions. According to his testimony, he stopped doing that work because his leg and hip still hurt with pivoting. However, it also appears that he was annoyed that the employer was "baby-sitting" him or "looking over his shoulder" while he worked. Transcript, pages 75-78.

The employer contends that the applicant's supervisor did keep an eye on the applicant to make sure he did not exceed his restrictions, that this annoyed the applicant, that the applicant told the supervisor he was a professional who did not need anybody standing over his shoulder, and that the applicant then left the jobsite. A few days later, according to the employer's witness, the applicant called back about work, and work was offered within the applicant's temporary restrictions, but the applicant refused it. Transcript, page 99-100.

The applicant did, however, find work from three other employers, a few days at a time from September 1998 to January 1999. The applicant testified that this work was within his temporary restrictions.

A year after the injury, on March 12, 1999, treating doctor Lincer found an end of healing with permanent partial disability at two percent compared to disability to the whole body for the physical effect of the fall and no residual psychological disability. Dr. Lincer also issued permanent work restrictions that permitted no lifting or carrying more than 50 pounds on an occasional (0 to 33 percent of the time) basis, and repetitive lifting or carrying limited to 25 pounds on a frequent (34 to 66 percent) basis. Dr. Lincer also stated that "the applicant is capable of competitive work within the restrictions identified." Nonetheless, Lincer stated that "it appears [the applicant] would be placing himself at risk of re-injury if he were to return to masonry work." See Exhibit D, March 12, 1999 report of Lincer, page 2. Although the insurer's rehab nurse was present when these restrictions were set, and the employer admits it was aware of the restrictions (transcript, page 102), the employer did not immediately offer the applicant work within the restrictions.

The applicant then went to DVR where Phil Zomchek counseled him. The applicant's DVR file, at exhibit G, indicates that Mr. Zomchek first saw the applicant on March 23, 1999. According to Zomchek, he had information from the applicant's treating doctor that returning to masonry work would put the applicant at risk of reinjury. He concluded that the applicant was eligible for DVR services, and proceeded to consider an "Individual Plan for Employment" or IPE.

According to Mr. Zomchek, the criteria for the development of an IPE by DVR are: (a) the consumer must have an impairment that would not allow him or her to go back to work or that worked an impediment to employment; (b) the consumer must require DVR services for an extended period of time; and (c) some type of evidence of the academic suitability of the training. Transcript, page 17.

The applicant met these criteria. Mr. Zomchek set up an IPE for academic coursework in the field of architectural technology. Mr. Zomchek's notes at exhibit G indicate this was done on April 30, 1999.

Mr. Zomchek testified that he and the applicant had brief conversations about the employer's offer of re-employment after he developed the IPE. Transcript, page 21. Asked what effect it would have if the applicant were offered a job within his restrictions that would not hurt his back after the development of an IPE, Mr. Zomchek seems to offer ambivalent testimony--at least on direct examination. He initially indicated that DVR would consider the job offer, but also stated that it was still the applicant's choice whether to go forward with the IPE. Transcript, page 22.

Mr. Zomchek's handling of this case reflects the current DVR departure from the prior DVR practice in cases involving workers compensation. Transcript, pages 22-25. DVR's former policy used to require the DVR counselor to contact the time- of-injury employer to determine if there was work available, then to conduct a more general work search, unless the facts of the particular case indicated those steps would be futile. (1)   However, DVR's new manual (2)  no longer expressly requires the pre-certification contact with the time-of-injury employer or the job search. See also transcript, page 51.

On cross-examination, Mr. Zomchek testified that he was aware the applicant had tried to work for the employer on light duty before his permanent restrictions were set, but that he was not able to do the job. Transcript, page 27. Mr. Zomchek testified he did not know the applicant had worked for other construction companies while still healing from September 1998 to January 1999; indeed the applicant admitted it was quite possible that he never told DVR counselor Zomchek about these jobs. Transcript, page 70. Mr. Zomchek also acknowledged that the applicant told him he last worked in November 1998, even though it appeared the applicant also worked in December 1998 and January 1999.

Mr. Zomchek also testified that it was essentially up to the applicant as to whether DVR would do a job search or certify the applicant for vocational retraining, given the new consumer-driven DVR outlook. Transcript, page 33. Mr. Zomchek also testified that part of the reason he did not do a job search for the applicant was that the type of employment the applicant had done (masonry work), with the bending and strain it put on the back, did not seem to be a "good fit" with the applicant's post-injury condition. Indeed, Dr. Lincer's restrictions expressly suggest the applicant not return to masonry work.

In contrast to his testimony on direct examination that a job offer made after the development of an IPE would not have prevented a worker from proceeding with the IPE (transcript, page 22), Mr. Zomchek's testimony on cross-examination suggests a job offer would have had an impact on the ultimate decision to go forward with the IPE. For example, while Mr. Zomchek drew up the applicant's IPE on April 30, 1999, his note for May 25, 1999, in exhibit G says:

"[Consumer] reported that he was offered a job as a skilled handyman at a wage that is not 85% his previous wage. Therefore, [consumer] is still eligible for DVR services."

Mr. Zomchek indicated that the job offer was significant because of a general DVR policy that if there is work available within 85 percent of the date of injury wage that is suitable employment meeting a worker's physical restrictions, that would not hurt the worker, DVR would not retrain that worker. Transcript, page 37-38. On follow-up, he acknowledged that an individual, to be eligible for DVR services, needed not only a physical impairment, but one that impedes the individual's ability to find work. Mr. Zomchek testified he was not aware that the applicant and the employer were having ongoing discussions about his return to work from May to August 1999.

Mr. Zomchek reiterated, too, that he was not willing to make changes to an IPE once it was drawn up. Transcript, page 47. He did acknowledge, however, that DVR would amend an IPE if the worker changed his mind about how he wanted to be trained. He further testified that the plan could be reconsidered if the worker were offered a job within his restrictions, or at least, that he would "look at" the job. Transcript, page 47.

On April 29, 1999, the day before Mr. Zomchek drew up the applicant's IPE, the applicant's attorney, Thomas Domer, sent the employer a letter inquiring about work. In response, the employer sent a letter to the applicant on May 12, 1999, under the signature of Susan Jenkins. She reported that the employer's business was slow, and the employer had laid off more than half its work force. She did offer the applicant the job of Yard/Shop Handyman, a kind of general maintenance job at the reduced rate of 15 percent less than his pre-injury wage, starting May 24, 1999.

In response to a further inquiry from applicant's attorney Domer, Ms. Jenkins stated the wage would be $19.67 (which was 85 percent of the then-current mason's wage of $23.14), and would be within the restrictions set by Dr. Lincer. She reiterated that the job duties would be building and lawn maintenance.

The applicant's attorney then wrote to the employer, and asked if the wage included pension and health insurance premiums, and whether the duties included work that would not be suitable (like cleaning toilets.) The employer responded by objecting to the inference that it was trying to offer the applicant unsuitable demeaning work like cleaning toilets, and stating that it would be making the "usual contributions" on the applicant's behalf. See Jenkins letter dated May 20, 1999.

On June 4, 1999, the applicant called the employer and said he would take the work. However, he did not report. The employer's attorney, Julie Darneider, then contacted the applicant's attorney, and stated that the employer regarded the failure to report as declining the job offer. See Darneider letter dated June 22, 1999. Applicant's attorney Domer responded that the applicant would report for work on July 19, 1999, that his failure to do so earlier was because of his inability to pay tardy union dues and get automobile insurance. Domer letter dated July 12, 1999. Ms. Darneider responded that the job that had been offered in May was filled by now, and that he should not report. Darneider letter dated July 15, 1999.

However, Mr. Domer evidently did not receive this letter until the morning of July 19, 1999. By this time, Ms. Darneider represented in a follow-up letter, the employer had changed its mind and had found work for the applicant. Again, however, the applicant did not return to work. Instead, still asserting that he did not have car insurance, the applicant contacted the employer and directly arranged a July 26, 1999 return to work. The applicant did not report on that date either.

Finally, according to Ms. Jenkins, the applicant contacted the employer one more time in August 1999, again asking for work. The applicant apologized for not reporting on the earlier dates, but reiterated his car insurance problems, and that he tended to make bad judgments when angry. It was arranged he would report on August 12, 1999. He again did not report.

The applicant testified that at least part of the reason he did not report to work, in July and August 1999 anyway, was for safety reasons, presumably his concern he would reinjure his back. Transcript, page 88. He indicated he did not think he could do physical labor for 40 hours a week. Transcript, page 90.

The applicant told Mr. Zomchek about the yard handyman job offered by the employer at some point during the exchange of letters between Domer and Jenkins, but before the applicant learned for certain from his union that the job would pay 85 percent of his pre-injury wage. Transcript, page 62-63, 82, 92. This led to Mr. Zomchek's note of May 25, 1999. Exhibit G. However, after learning for certain that the job paid 85 percent of his pre-injury wage, including benefits, the applicant never told DVR counselor Zomchek, because the IPE had already been developed. Transcript, pages 92-93.

Ms. Jenkins testified that the employer created the yard handyman job for the applicant, but the applicant felt it was beneath his status as a mason. She testified she mentioned the possibility of him doing masonry work in her job offers because the applicant desired to return to such work. She denied that he ever told her, or to her knowledge anyone employed by the employer, that he had safety concerns about the work offered in the summer of 1999. Transcript, pages 116 et seq.

Under Wis. Stat. § § 102.43(5) and 102.61(1), 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, he is eligible for certain expenses as well as weekly payments at the temporary total disability rate. Under Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957), the authority of the commission and the workers compensation division in such cases is limited, at least once it is determined that the applicant has a compensable injury and that DVR has certified the worker for retraining.

In Massachusetts Bonding, the injured worker was a pilot whose employment injury (a skull fracture causing seizures) precluded a return to that employment. However, he was able to obtain other gainful employment after that injury. He was certified for retraining by DVR's predecessor agency, even though he had been gainfully employed since the time of his injury. Because DVR's predecessor certified him, the Industrial Commission awarded vocational rehabilitation benefits. Massachusetts Bonding appealed, essentially asking for a reversal of the finding that the worker was eligible to be retrained given his condition.

The court refused, focusing on the narrow scope of review of the Industrial Commission under Wis. Stat. § 102.61(1). The court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR, and that the Industrial Commission had no power to review the acts of the DVR-predecessor. The court held that the Industrial Commission must find that an injured worker receiving retraining authorized by the DVR- predecessor is entitled to it, unless the commission concluded that (a) highly material facts were withheld or misrepresented to the DVR-predecessor or (b) the DVR-predecessor'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.

The commission has previously found an abuse of administrative power when DVR has refused or failed to contact the employer, or to conduct a job search, in the face of its former policy requiring it to do so. On the other hand, the commission has also found no abuse of administrative power for failing to take those actions, especially where the acts would be futile, or where the worker himself or herself undertook reasonable efforts to contact the employer or make a job search. See Joseph Gunzel v. Gajeski Construction, WC claim no. 92045568 (October 30, 1996), and cases cited therein.

As the parties acknowledge, subsequent statutory changes to Wis. Stat. § 102.61(1) allowing for private rehabilitation counseling do not overrule Massachusetts Bonding in cases where DVR provides the counseling services. See, for example, footnote 191 in DWD's publication WKC-1-P (4/2000) Worker's Compensation Act of Wisconsin with amendments to January 1, 2000. The respondent acknowledges in its brief that it has the burden of proving a highly material misrepresentation of fact or an abuse of administrative power.

However, since this case was briefed, 2001 Wis. Act 37, effective January 1, 2002, (3)   made certain changes to the workers compensation statutes dealing with vocational retraining benefits. To summarize the 2001 Wis. Act 37 changes, the department or commission must deny a worker's claim for vocational retraining benefits under Wis. Stat. § 102.43(5) and 102.61(1) if the employer offers the worker, within a specified period, suitable employment that pays not less than 90% of the employee's pre- injury average weekly wage. However, ineligibility for compensation based on the job offer does not preclude the worker from receiving the vocational rehabilitation service itself. (4)   Because these changes did not take effect until January 1, 2002, they do not directly affect the applicant's eligibility for benefits in this case. Wis. Stat. § 102.04(3).

Finally, the limits on department or commission authority under Massachusetts Bonding apply only to the first eighty weeks of vocational retraining benefits under Wis. Stat. § 102.43 (5). Specifically, benefits under Wis. Stat. § 102.43(5) end after 80 weeks, unless the commission or department finds that additional retraining is warranted. In other words, the commission or department may terminate benefits under Wis. Stat. § 102.43(5) after the first 80 weeks of retraining, even if DVR has authorized a longer program, if the department or commission finds the extended retraining is unwarranted.

With respect to the case now before the commission, the applicant was clearly entitled to receive and has received workers compensation. At the time of the hearing, he was also entitled to receive and was receiving instruction under the federal vocational rehabilitation laws. At least with respect to the first eighty weeks of vocational retraining benefits, then, the commission's authority is governed by Massachusetts Bonding as the parties in fact acknowledge.

Applying the standard set out in Massachusetts Bonding, then, the first question in this case is whether highly material facts were withheld or misrepresented to DVR generally, and counselor Zomchek specifically. The court in Massachusetts Bonding suggests that actual fraud, not mere innocent or negligent misrepresentation, is necessary for LIRC to override the DVR's certification under this prong. (5)

The respondent initially did not argue that the applicant withheld highly material facts. Indeed, in framing the issues for hearing, the presiding ALJ indicated that the respondent essentially waived the assertion of material misrepresentation, and agreed to limit argument to abuse of administrative power, on the record before the ALJ. Because the respondent did not object to the issues as framed by the ALJ, (6)   and because the applicant presented his case in reliance on the way the ALJ framed the issues, the commission must decline to find a material misrepresentation in this case.

The next question, then, is the defense that DVR's certification of the IPE was "so far outside the reasonable scope of interpretation as to be an abuse of administrative power." The respondent employer argues that DVR counselor Zomchek, by his own admission, stated that a worker must have an impairment that would not allow the person to go back to work to qualify for vocational rehabilitation services including an IPE. Necessarily, the respondent asserts, some inquiry should have been made of the employer as to whether some kind of work was available for the applicant.

The respondent goes on to point to Mr. Zomchek's testimony that he would have altered the plan if the applicant had been offered work within his restrictions at 85 percent of his pre-injury wage. Mr. Zomchek simply relied on the applicant's representation that the job he was offered paid less than 85 percent. The employer points out that the DVR policy manual requires counselors to act in an organized and planned manner, and to exercise sound professional judgment to that end. Simply relying on the representations of one side does not meet that standard, the respondent contends.

The respondent also suggests that the commission must also determine whether Zomchek should have made more effort to learn about ongoing job offers after he developed the IPE, and that his failure to do so was an abuse of administrative power. The employer then points to DVR's former policy under which DVR usually had to contact an employer about work and to conduct a job search prior to certification. The employer described the old system as more sensible, and suggests that it was not "broken" and should not have been "fixed."

Nonetheless, under the express terms of DVR's new policy an employer's offer of work paying within 85 percent of the injured worker's pre-injury wage no longer automatically precludes retraining, nor does it make the continuance of the IPE unreasonable. Rather, under the new policy applying to DVR consumers who are disabled due to workers compensation injuries, the criteria for the development of an IPE by DVR are: (a) the consumer must have an impairment that would not allow him or her to go back to work or that worked an impediment to employment; (b) the consumer must require DVR services for an extended period of time; and (c) some type of evidence of the academic suitability of the training. Transcript, page 17. The applicant, who has significant permanent work restrictions which prevent him from returning to his former job as a mason, has met these criteria.

While the former written DVR policy required a pre-certification employer contact, a pre-certification job search, and the preclusion of retraining if someone comes up with a job paying 85 percent of the pre-injury wage, those provisions have all been removed from the DVR's current written policy. Indeed, the new DVR policy is expressed in the "Information for DVR Consumers With Worker's Compensation Claims" hand-out which DVR now provides to its "consumers." This memo may be found in the Neal & Danas, Worker's Compensation Handbook (4th ed., 1997), appendix 4, page 37, at exhibit F. The document states:

"The Division of Vocational Rehabilitation encourages you to work closely with our staff, as a partner, to make informed choices about decisions that impact your vocational rehabilitation.

"A plan to return to a job with your former employer or a new employer may be your best choice. Maybe training for a different type of job is a better choice for you. DVR offers services to help you make these decisions and carry out your plan.

"The choices you make in your vocational rehabilitation could affect your Worker's Compensation Claim. Some Worker's Compensation insurance carriers may question retraining benefits if [they] believe you are able to return to suitable employment without additional training.
. . . 
"ü DVR follows the Federal Rehabilitation Act. This is a separate and different law from the Wisconsin Workers Compensation Law.
. . . 
"ü Unlike the Workers Compensation Act, the Rehabilitation Act does not require that you attempt to return to work with your previous employer, or to seek a job with other employers, prior to approving retaining as part of your vocational plan."

This is substantially different from the old policy requiring DVR to contact the time-of-injury employer and do a job search as a prerequisite to retraining. At most, DVR's current policy simply notes the possibility that an insurer might protest if retraining is undertaken without an attempt to return to work.

Indeed, as is evident from the enactment of the recent changes to Wis. Stat. §§ 102.43(5) and 102.61(1) by 2001 Wis. Act 37, the state legislature apparently shares the view that the change in the DVR policy affects the authority of the commission and the division to deny vocational retraining benefits under Massachusetts Bonding. The statutes now specifically state that a worker is not entitled to vocational rehabilitation benefits if the employer makes an offer of suitable work paying at least 90 percent of his pre-injury wage. This enactment and the legislative history underlying it (7)   indicate that the legislature itself perceived that, given the DVR's new policy, DVR does not act "so far outside the reasonable scope of interpretation of the vocational rehabilitation laws" as to constitute an abuse of administrative power by providing vocational retraining despite an offer of suitable employment from the time of injury employer.

In this case, then, under its new policy, DVR did not abuse its administrative power by allowing the applicant to continue with the retraining plan under his IPE despite the employer's good faith employment offer. In making this finding, the commission notes particularly that the applicant's doctor has set significant permanent work restrictions and recommended the applicant not return to his former job, and that the terms of the offer of re-employment were not clarified until after the IPE was developed.

In the future, a worker may be ineligible for benefits if the employer makes an offer of work meeting the requirements of Wis. Stat. § 102.61(1g), as affected by 2001 Wis. Act 37. However, that provision does not apply to the applicant under Wis. Stat. 102.03(4). Consequently, the commission has no choice, under DVR's new policy and the limits on the commission's authority under Massachusetts Bonding, but to order payment of the benefits under Wis. Stat. § § 102.43(5) and 102.61(1), at least for the first 80 weeks of retraining.

The commission, frankly, reaches this result only with great reluctance. It agrees with the respondent's description of DVR's former system as more sensible, and in no need of repair. The commission deplores the possibility that a worker may refuse reasonable reemployment at a reasonable wage, and then embark on a course of vocational retraining subsidized by the employer or the employer's insurer. The commission gave serious consideration to continuing to apply DVR's old policy regarding post-injury job offers and job searches, either under (a) Mr. Zomchek's ambivalent testimony about the continuing effect of some vestige of the old policy on current DVR practice, (b) an application of a rule of reason, or (c) the determination that DVR's change in policy itself constituted an abuse of administrative power.

However, the commission believes that attempting to apply the old policy would be unwise, if not unlawful. Mr. Zomchek's testimony suggests that individual DVR counselors may continue to consider job offers in making the initial decision to certify a worker for vocational retraining. However, in light of DVR's policy change, the commission cannot conclude it is an abuse of administrative power not to do so. Moreover, the application of a kind of "rule of reason" was expressly rejected by the majority opinion in Massachusetts Bonding. Finally, attempting to apply DVR's former policy would likely exceed both the commission's limited authority under Massachusetts Bonding and its statutory authority in light of the recently- enacted changes by 2001 Wis. Act 37. Taking such an action would certainly lead to confusion in light of the statutory changes.

Nonetheless, the commission restates the ALJ's finding that the employer's job offer was made in good faith. In addition, as found above, the applicant did not tell Mr. Zomchek when he learned for certain that that job paid 85 percent of his pre-injury wage. While the applicant may not have been required to keep Mr. Zomchek informed of the job offer under DVR's new policy, his failure to do so does have some consequence on the commission's view of the extent of retraining that is appropriate. Specifically, the commission cannot conclude that training beyond 80 weeks is warranted, and any award under this order shall be subject to the 80-week limitation under Wis. Stat. § 102.43(5).

Accordingly, the applicant is entitled to benefits under Wis. Stat. § 102.43(5) from January 20, 2000 to May 19, 2000, a period of 17 weeks and two days. At the weekly rate of $523.00 (the maximum rate for temporary disability from injuries in 1998), the applicant is entitled to a total of $9,065.33 in compensation under Wis. Stat. § 102.43(5).

The applicant agreed to an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded, or $1,813.07. That amount shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The amount remaining to be paid the applicant in compensation under Wis. Stat. § 102.43(5), as of May 19, 2000, equals $7,252.26.

At the hearing the applicant established that during his vocational retraining, he incurred $20.00 per week for meals, $12.50 per week for parking, and $36.25 in mileage (125 miles per week at $0.29 per mile), totaling $68.75 per week, in compensable expenses under Wis. Stat. § 102.61(1). The applicant is entitled to reimbursement in the amount of $1,191.64 for these compensable expenses for the 17 week, two day period from January 20 to May 19, 2000.

Subject to the 80-week limit under Wis. Stat. § 102.43(5), the applicant shall be entitled to $523 per week for compensation under Wis. Stat. § 102.43(5) and $68.75 per week for compensation under Wis. Stat. § 102.61(1) during periods of attendance under the IPE after May 19, 2000, while the applicant remains in good standing. A 20 percent fee shall be deducted from the future payments under Wis. Stat. § 102.43(5) and paid to the applicant's attorney.

Consistent with the ALJ's order, this order shall remain interlocutory to permit the resolution of future claims other than vocational retraining.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following

1. To the applicant, Robert S. Manske, Seven thousand five hundred twenty- five dollars and twenty-six cents ($7,525.26) and One thousand one hundred ninety-one dollars and sixty-four cents ($1,191.64) in compensation under Wis. Stat. § § 102.43(5) and 102.61(1).

2. To the applicant's attorney, Thomas M. Domer, One thousand eight hundred thirteen dollars and seven cents ($1,813.07) in attorney fees.

Subject to the 80-week limit under Wis. Stat. § 102.43(5), during periods when the applicant attends vocational retraining under the IPE after May 19, 2000 and remains in good standing, the employer and its insurer shall pay all of the following:

1. To the applicant, Four hundred eighteen dollars and forty cents ($418.40) per week for compensation under Wis. Stat. § 102.43(5) and Sixty-eight dollars and seventy-five cents ($68.75) per week for compensation under Wis. Stat. § 102.61(1).

2. To the applicant's attorney, One hundred four dollars and sixty cents ($104.60) per week in fees.

Jurisdiction is reserved to permit future orders and awards consistent with the foregoing.

Dated and mailed June 24, 2002
manskro . wrr : 101 : 1 ND § 5.40

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Thomas M. Domer
Attorney Christine Cowles


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Footnotes:

(1)( Back ) See "DVR Special Procedures for Processing Workers Compensation Referrals," sec 2330 (9), at Neal & Danas, Workers Compensation Handbook, App 4F, pages 4- 24 and 4-25 (3d ed. 1990).

(2)( Back ) Appended to the respondent's brief, and reproduced at Neal & Danas, Workers Compensation Handbook, App 4M, pages 4-61 and 4-84 (4d ed. 1997).

(3)( Back ) The act was published on January 4, 2002, which would make its effective date February 1, 2002, but was "republished" four days earlier (December 31, 2001.)

(4)( Back ) 2001 Wis. Act 37 states in relevant part: 

"SECTION 36. 102.43 (5) of the statutes is amended to read: 

"102.43 (5) Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances. Except as provided in s. 102.61 (1g), temporary disability shall also include such period as the employee may be receiving instruction pursuant to s. 102.61 (1) or (1m). Temporary disability on account of receiving instruction of the latter nature, and not otherwise resulting from the injury, shall not be in excess of 80 weeks. Such 80- week limitation does not apply to temporary disability benefits under this section, travel or maintenance expense under s. 102.61 (1), or private rehabilitation counseling or rehabilitative training costs under s. 102.61 (1m) if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employee shall be subject to periodic review and reevaluation. 

"SECTION 44. 102.61 (1) of the statutes is amended to read: 

"102.61 (1) Subject to subs. (1g) and (1m), an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under 29 USC 701 to 797b, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary expenses of travel and, if the employee receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r). 

"SECTION 45. 102.61 (1g) of the statutes is created to read: 

"102.61 (1g) (a) In this subsection, "suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90% of the employee's preinjury average weekly wage, 
. . . 
"(b) If an employer offers an employee suitable employment as provided in par. (c), the employer or the employer's insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) or for travel and maintenance expenses under sub. (1). Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under 29 USC 701 to 797b if the department determines that the employee is eligible to receive those services."

(5)( Back ) At Massachusetts Bonding, 505 Wis. 512, the court stated: [The appellant] must accept the further liability for travel and maintenance in connection with a rehabilitation program on which the state board is willing to spend public funds unless he can demonstrate at the hearing before the Commission that there has been the type of fraud or abuse of power above referred to."

(6)( Back ) ALJ McSweeney, summarizing what was at issue at the onset of the hearing, states: 

"The disputed issues are retraining and the dates are January 20, 2000 to May 19, 2000. The attorneys agree that the Wisconsin Supreme Court case referred to as Massachusetts Bonding applies in this proceeding and the specific allegations under that particular case is respondents are asserting an abuse of discretion by DVR. There is no allegation of fraud in this proceeding.." 

Transcript, page 6. The respondent's counsel later agreed the ALJ "had ruled out fraud," and emphasized she was not trying to establish a fraud defense. Transcript, page 28.

(7)( Back ) The "management side" of the Worker's Compensation Council proposed the statutory changes at issue. The notes for the WC Council's July 24, 2001 meeting state in part: 

"D. Management Proposal 7--No vocational rehabilitation if employer offers suitable employment at no less than 90% of the employe's pre-injury wage. 

"Mr. Bagin said the intent was to apply the job offer/suitable employment concept in s. 102.61(1m) and DWD 80.49 to the DVR process in s. 102.61(1). He said the private sector system includes the job-offer concept and, until very recently, so did the state DVR process. Mr. Smith asked if the intention was that the offer of 90% of the pre-injury wage had to come from the injury employer or did the concept include a job search. Mr. Bagin confirmed that the job offer had to come from the injury employer and that there was no intention to require the employee to undertake a job search. [Italics supplied.]" 

The Legislative Reference Bureau's analysis to 2001 Assembly Bill 505, later enacted as 2001 Wis. Act 37, also explains the change: 

"Vocational rehabilitation; offer of suitable employment 

"Under current law, an injured employee may be entitled to receive vocational rehabilitation instruction from DWD under the federal Rehabilitation Act of 1973, or, if the employee is eligible for that instruction, but DWD cannot provide that instruction, from a private rehabilitation counselor. An injured employee must be paid temporary disability benefits and the actual and necessary costs of travel and maintenance while receiving vocational rehabilitation instruction, except that current DWD administrative rules provide that an employer is not liable for those benefits or costs if the employee is receiving vocational rehabilitation services from a private vocational rehabilitation counselor and the employer makes an offer of suitable employment to the employee.
. . . 
"This bill extends the offer of suitable employment rule to employees who are receiving vocational rehabilitation instruction from DWD. Specifically, the bill provides that if an employer makes an offer of suitable employment to an employee who is receiving vocational rehabilitation instruction from DWD, the employer is not liable for temporary disability benefits or for the costs of travel and maintenance during the employee's rehabilitation. The bill differs from the administrative rule, however, insofar as under the bill a job must pay not less than 90%, rather than 85%, of the employee's preinjury average weekly wage in order to be considered suitable employment." 

 


uploaded 2002/06/26