GARY J HAMRE, Applicant

BELOIT CORPORATION, Employer

BELOIT CORPORATION, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 13, 2002. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury to his back arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part her Findings and Interlocutory Order. The commission makes the following:

The applicant never missed any workdays. However, on or about July 8, 1992, he sustained a conceded low back work injury when a high-powered hose propelled him up against a wall. He continued working but his back pain persisted, and he went to Dr. D. M. Huibregtse on September 17, 1992. Dr. Huibregtse took a history of low back pain for the previous two months with some radiation into the buttocks and occasional numbness in the right anterior thigh. He found the applicant to have limited forward flexion and extension of the spine and some lumbosacral spinal tenderness to deep palpation. Lumbosacral x-rays showed degenerative disc disease at L5-S1, and Dr. Huibregtse diagnosed a subacute lumbar strain. He prescribed conservative treatment and avoidance of repetitive bending or lifting.

The applicant continued to perform his regular duties but continued to experience soreness in his low back. He initially took Tylenol No. 3 three times per day, but then his physician put him on Orudis for the pain. His primary physician was Dr. D. C. Murdy, who mainly treated him for diabetes, hypertension, and migraine headaches. However, on occasion the applicant would discuss his ongoing low back symptoms with Dr. Murdy. On November 30, 1992, Dr. Murdy wrote in his clinic note that the applicant had severe degenerative joint disease of his back that was work related. The applicant also received conservative treatment for cervical degenerative disease.

The applicant was seen by Dr. C. M. Bender on December 14, 1999. He had attempted to see Dr. Huibregtse in early November (before his layoff) but Dr. Huibregtse told the applicant he no longer treated backs, and it took another six weeks to get an appointment with Dr. Bender. Dr. Bender took the applicant's history and indicated that he was coming in to have his worker's compensation case closed from the date of injury on July 8, 1992. She noted the applicant was able to walk without difficulty and had good forward flexion with the ability to touch the floor. Her impression was back pain that may be related to degenerative disc disease, and she assessed one percent permanent partial disability. She estimated an end of healing in December of 1992.

After being laid off, the applicant sought assistance from the Department of Vocational Rehabilitation and enrolled in a computer technician training course at Blackhawk Technical College. He started the course in January 2000 and completed it in May of 2001, receiving financial assistance from the Trade Readjustment Act. He has searched unsuccessfully for employment, but his DVR counselor questioned the sincerity of his search. The counselor thought the applicant might be waiting for resolution of his SSDI and worker's compensation claims before making his best job search effort. The applicant disputes this.

The applicant did not like Dr. Bender and chose to see Dr. Sellman on September 12, 2000. Dr. Sellman took a history which indicated that the applicant's back pain increased after he had been laid off and his lifestyle became more sedentary. His examination found the applicant's spinal mobility limited to 75 percent of normal with increasing pain with forward flexion. Dr. Sellman reviewed MRI films which showed extensive lumbar degenerative disc disease with a possible lateral disc protrusion at L3-4. Dr. Sellman diagnosed degenerative lumbar disc disease with early onset of facet joint arthropathy, and chronic low back pain. He gave no opinion with regard to work relatedness.

On October 31, 2000, the applicant was examined for a disability rating by Dr. J. M. Warren. Dr. Warren found the applicant able to bend forward about 100 degrees and bend laterally 20 degrees in both directions. He found the applicant's extension very limited at between five and ten degrees, and no extension at either hip. He also reviewed the MRI and opined that there was central disc bulging at L3-4 and L4-5, and degenerative changes at L5-S1. He additionally diagnosed degenerative arthritis of the lumbosacral spine. Dr. Warren assessed five to seven percent permanent partial disability, and permanent restrictions for light work in accordance with the Functional Capacity Evaluation completed on November 20, 2000. Dr. Warren further opined that the applicant had been injured at work in 1992, as verified by Dr. Huibregste. Finally, he indicated:

" . . . The subsequent deterioration in the other discs I will attribute to his work while at Beloit Corporation over a number of years. So in addition, he probably had aggravation and exacerbation of his previous injury while working at Beloit Corporation doing regular duty."

At the employer's request, the applicant was examined and evaluated by Dr. Richard Karr on July 16, 2001. Dr. Karr took a history which included his understanding that the applicant had not sought any treatment for his low back between "approximately November 1992 and November 2000." This overlooks the fact that the applicant did receive some ongoing care for his back from Dr. Murdy. Dr. Karr diagnosed multilevel degenerative lumbar spondylosis, secondary to the normal progression of degenerative factors predating July 1992; a workplace lumbar strain on July 8, 1992, resulting in no permanent disability and a healing plateau within three months; and low back pain solely due to the normal progression of the degenerative lumbar spondylosis. He opined that neither the July 1992 work injury nor the applicant's overall occupational exposure materially contributed to his back condition. Dr. Karr opined that although the applicant self limits lumbar bending/extension, which Dr. Karr believed was associated with exhibition of pain behavior, there was no neuromuscular wasting or weakness. He assessed two percent permanent partial disability with restrictions of 40 pounds maximum lifting, 20 pounds maximum repetitive lifting, and no repetitive or prolonged bending in excess of 45 degrees.

The applicant's vocational expert assessed loss of earning capacity (LOEC) at between 54 percent and 65 percent without retraining, and 39 percent to 54 percent with retraining. His estimates were slightly lower based on Dr. Karr's restrictions. The employer's vocational expert assessed LOEC at five percent to ten percent.

The commission concurred with the administrative law judge that Dr. Warren's opinion of occupational causation is credible. The applicant's lengthy history of heavy, physically demanding work for the employer credibly explains the onset of his permanent back condition. The occupational date of injury is the applicant's last day of employment with the employer, November 26, 1999. Dr. Warren's assessment of five percent permanent partial disability is accepted as credible.

The administrative law judge found that the employer should not be allowed to "reap the benefits" of the applicant's computer technician training, because he had received reimbursement for it under the Trade Readjustment Act. However, regardless of the fact that the employer did not pay for this training, the simple fact remains that the applicant received it. Wis. Admin. Code ch. DWD 80.34(1) provides that education and training shall be considered in assessing loss of earning capacity, and the sources of such education and training are not made a consideration.

The applicant is currently 55 years old. He is a high school graduate and has received the one-year technical diploma for the Computer Service Technician program at Blackhawk Technical College. Dr. Warren has restricted him to light work. He earned approximately $41,000 in three of his last six years of employment with the employer, approximately $48,000 in two of these years, and $51,512 in 1997. In his last year of employment he was averaging about 50 hours of work per week. Of course, this employment ended due to plant closure on November 26, 1999, and would not currently be available even had the applicant not been injured. In addition, although the DVR counselor's notes do not elaborate on her opinion concerning the applicant's job search effort, they do indicate that the applicant was not following up on job leads.

At the same time, the applicant has sustained a serious, permanent disability to his back. He has performed physical work almost all of his working career, but is now restricted to light work. The fact that he has no work experience in the computer technician field has likely made his job search more difficult.

Considering all the relevant factors, the commission finds that the applicant sustained a 40 percent loss of earning capacity attributable to his occupational injury. This amounts to 400 weeks of compensation at the applicable rate of $184.00 per week. An 18 percent attorney's fee and costs of $1,594.00 will be subtracted from this compensation. The record is unclear with respect to whether the social security offset (Wis. Stat. § 102.44(5)) is applicable to any of the compensation currently due the applicant, and therefore the case will be remanded to the department for computation of the exact amounts of accrued and unaccrued compensation due. The department shall also calculate the present value of attorney fee due Daniel R. Schoshinski, and shall subtract the attorney fee and costs from the applicant's award.

Reasonably required medical expenses are due as follows: to MHSP Physicians Service the sum of $32.00; to Mercy Care the sum of $2,504.57; and to the applicant as reimbursement for medical mileage expense the sum of $19.14.

Jurisdiction will be reserved with respect to the possibility of additional medical treatment expense and/or disability.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer shall pay to Attorney Daniel R. Schoshinski reimbursement for costs in the amount of one thousand five hundred ninety-four dollars ($1,594.00); to MHS Physicians Service the sum of thirty-two dollars ($32.00); to Mercy Care the sum of two thousand five hundred four dollars and fifty-seven cents ($2,504.57); and to the applicant as reimbursement for medical mileage expense the sum of nineteen dollars and fourteen cents ($19.14). The matter is remanded to the department for calculation of the exact amounts due the applicant for accrued and unaccrued compensation, consistent with the above findings, as well as for calculation of the present value of attorney fee due Attorney Schoshinski. The employer shall make immediate payment of these amounts upon calculation by the department.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed October 24, 2002
hamrega . wpr : 185 : 8 ND � 5.20

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The administrative law judge indicated to the commission that she found the applicant to have been a credible individual, who had a good work ethic. In large part the commission agreed with this assessment. However, the DVR counselor's indication in her file notes that the applicant had not followed up on job leads led the commission to infer that his work search had not been entirely what it should have been. This was only one of the considerations the commission had in assessing the applicant's loss of earning capacity, as detailed in the above findings.

cc: 
Attorney Daniel R. Schoshinski
Attorney Linda D. Kiemele

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