CAROL THOMPSON, Employee

CARDINAL FG, Employer

AMERICAN MOTORISTS, 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 August 30, 2002
thompso . wsd : 101 : 8  ND § 8.32   § 8.33

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case arose initially on a conceded injury, with a dispute on the extent of the employee's loss of earning capacity. Following a hearing in April 1998, ALJ Arnold awarded for loss of earning capacity 40 percent by order dated May 13, 1998. ALJ Arnold left her order interlocutory to permit the employee to make additional claims for disability, including for additional treatment expense and disability. On this point, ALJ Arnold specifically noted the employee's loss of earning capacity might increase in the future, if her work restrictions increased either from future degeneration or future surgery.

The commission affirmed ALJ Arnold's findings and order in a decision dated January 15, 1999. The commission's decision was in turn affirmed by the Dunn county circuit court on February 21, 2000.

In January 2001, the employer and insurer filed a "reverse application." They offer the revised opinion of the employee's treating doctor, Bodeau, on whose opinion regarding work restrictions ALJ Arnold and the commission relied in awarding loss of earning capacity. After reading the transcript of the April 1998 hearing, Dr. Bodeau now feels the work restrictions he set before the April 1998 hearing were too limiting.

Essentially, Dr. Bodeau now opines that the employee's hearing testimony indicates she had a greater physical capacity than he realized. He testified that, if he had heard the employee's testimony back in April 1998, he would have issued different, less limiting restrictions back then. Specifically, Dr. Bodeau would permit the employee to engage in more reaching activities than he originally allowed, which employer and insurer assert would reduce the employee's loss of earning capacity.

The ALJ dismissed the employer and insurer's reverse application. In her decision, the ALJ makes two points: first, that she reserved jurisdiction for the limited purposes of increasing the loss of earning capacity award, not for decreasing it; and second, nothing has really changed since the time of the hearing in 1998, except that Dr. Bodeau changed his mind based on information that was available back in 1998.

On appeal to the commission, the employer and insurer argue that the ALJ's reservation of jurisdiction should not be limited to applications to increase the loss of earning capacity award, and that the ALJ is erroneously preventing them from presenting additional evidence.

The commission cannot agree with the employer and insurer. Jurisdiction may be reserved in worker's compensation orders deciding claims for disability compensation for several reasons. One reason is to preserve present claims that were not tried at the hearing, to the extent an explicit reservation of jurisdiction is necessary under Wis. Stat. § 102.18(4)(a). An example is where the hearing is limited to the issues of causation or temporary disability, even though a worker has reached an end of healing and has a pending claim for functional permanent disability or loss of earning capacity. Another reason to reserve jurisdiction is to permit the bringing of new claims on unlitigated, not yet ripe issues, such as permanent disability when a plateau of healing has not been reached. Yet another reason is to permit awards for additional temporary disability, or increased (or decreased) permanent disability, based upon post-hearing changes in the worker's condition, where the ALJ or commission cannot definitely rule out future disability at the time of hearing. See  Larsen Co. v. Industrial Commission, 9 Wis. 2d 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973).

Normally, the cases that fall in the last category occur when a person's "permanent" or residual condition worsens years after the hearing, so that additional surgery is required or the worker's functional or vocational loss increases. In theory, however, an order could be left interlocutory to deal with situations where post-plateau surgery or treatment might lead to an improvement in functional capacity, and a lessening of permanent disability for loss of earning capacity.

However, the commission and ALJs generally do not issue interlocutory orders to permit relitigation of claims already heard, based on a doctor's changed opinion about the injured worker's condition as of the time of the hearing, at least not unless such a reservation of jurisdiction is stated expressly. (1)   If a party feels a doctor or medical expert would change his or her opinion based on hearing testimony, he or she should have the doctor testify (2)  at the hearing or request a continuance or chance to supplement the record. However, interlocutory orders simply are not designed to allow a case to proceed to decision, and then permit a party to reopen a case to retry it.

Stated another way, the employer and insurer are attempting to relitigate an already adjudicated issue, on the argument that a better-informed doctor would have issued a different opinion concerning the worker's condition as it was at the time of the hearing. While that argument under some circumstances may be an appropriate basis for an attempt to reopen a case under the "one-year" statute, Wis. Stat. § 102.18(4)(c), the commission agrees with ALJ Arnold that the employer and insurer's claim does not fall within the terms of her interlocutory order.

cc: 
Attorney Steve M. Jackson
Attorney David A. Piehler

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(1)( Back ) The commission and the courts have held that parties may not be bound by an erroneously limited reservation of jurisdiction, such as where a "busy and harassed examiner" fails to list all the issues on which jurisdiction was or should have been reserved. American Motors Corporation v. Industrial Commission, 26 Wis. 2d 165, 172-73 (1965).  However, that is different than trying to use an interlocutory order on possible future disability as a vehicle to retry disability as it actually existed at the time of the hearing.

(2)( Back ) By writing a WKC-16-B, a doctor consents to subject himself or herself to cross-examination, see Wis. Stat. § 102.17(1)(d).

uploaded 2002/09/06