DENNIS M OBRIEN, Applicant

BOB B WELLS ASPHALT, Employer

WISCONSIN WC UNINSURED EMPLOYER FUND, 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.

Dated and mailed July 18, 2002
obriede . wsd : 185 : 8  ND § 5.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In their petition, respondents mistakenly assert that the legal rule applicable to this case is that temporary disability is not available to an individual during a period in which he refused suitable work within his physical restrictions. In the present case, the employer's owner testified that by the middle of November 2000, their work season had ended. As of that time, no light-duty work would have been available to the applicant, who remained within his healing period until December 15, 2000. Accordingly, the administrative law judge law judge properly found that no suitable work was available to the applicant between November 15, 2000 and December 15, 2000, and he was therefore eligible for temporary total disability during that period. The fact that he failed to return to work prior to November 15, 2000, does not control his eligibility for temporary disability as of that date. As of November 15, 2000, the employer had no work for him and he was limited in his ability to find work on the general labor market, due to the ongoing, temporary effects of his work injury. Under these conditions temporary disability must be paid. Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 635-36, 563 N.W.2d 512 (1997).

cc: 
Attorney Gregory J. Strasser
Attorney Jeffrey J. Strande

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

uploaded 2002/07/26