PATRICK B WALLS, Applicant
WISCONSIN ELECTRIC POWER COMPANY, Employer
WISCONSIN ELECTRIC POWER COMPANY, Insurer
In August 2001, the applicant filed an application for hearing seeking compensation for permanent partial disability and medical expenses arising from a February 12, 1995, date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on March 27, 2002, and closed the record following the submission of briefs on April 10, 2002.
Prior to the hearing, the self-insured employer conceded jurisdictional facts, an average weekly wage resulting in the statutory maximums for disability compensation, and the occurrence of a compensable non-traumatic stress injury arising out of employment on February 12, 1995. The employer also conceded and paid compensation for temporary disability from August 18 to October 12, 1998 (amounting to $3,592.50), from October 28, 1998 to May 22, 2000 (amounting to $30,097.17), and from May 22 to June 17, 2000 (amounting to $177.23). However, the employer neither conceded nor paid any compensation for permanent disability.
At issue before the ALJ was whether the applicant sustained any permanent disability as a result of the conceded injury. On May 2, 2002, the ALJ issued her decision and interlocutory order in favor of the applicant. The employer 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:
The applicant witnessed a horrific industrial accident following a boiler explosion on February 12, 1995. Two coworkers were badly burned or scalded. The applicant provided first aid to both until the paramedics arrived. The injured men's faces and skin seemed to liquefy, and fall off like wax. One of the men begged the applicant to keep him alive. One man died on the scene and the other lived three weeks.
The applicant, a recovering alcoholic and cocaine abuser, had been sober for seven years. The night of the accident he began drinking again. He eventually started "self-medicating" with Xanax and crack cocaine as well. He was, however, able to continue to work until August 1998.
The applicant stopped working in August 1998 following a rupture in a boiler that reminded him of the accident of February 1995. The applicant unsuccessfully tried to return to work in October 1998. Thereafter he remained off work until May 2000, when he returned part-time. By June 2000, apparently, he was working full time. The self-insured employer, who has conceded a compensable psychological injury, paid him temporary total and temporary partial disability during these periods.
The applicant's treating doctor, Herbert Roehrich, M.D., opined that the applicant experienced as a result of the accident:
See practitioner's report dated January 13, 2001, at exhibit A. The doctor went on to indicate the applicant was working full time, without restriction. Regarding the "percentage of permanent disability.compare[d] to permanent total disability if the injury is to the . . . head," (1) he opined it was too early to tell, but he estimated it at 15 to 20 percent.
Dr. Roehrich was more certain in his report of March 26, 2002, at exhibit C. He wrote:
"I have been treating Mr. Walls for an exacerbation (relapse) on cocaine as well as for post traumatic stress disorder and major depression following an incident at work where he witnessed the death of one coworker and severe injury of another. He has now been able to maintain sobriety for greater than one year. He continues to require active effort to remain sober and to maintain remission of PTSD/depressive symptoms. At this time, to a reasonable degree of medical certainty, Mr. Walls as a 15% residual disability owing to his depression/PTSD and residual effects of the relapse on cocaine."
The respondent relies on the opinion of an IME, Jeffrey Zigun, M.D. He, too, found the following conditions caused by the work event:
Dr. Zigun opined the applicant had reached a healing plateau without permanent disability. He did think that the applicant would nonetheless need psychotherapy for the next year, and ongoing drug and alcohol testing. He thought that continuing daily AA meetings would be a good idea.
Dr. Zigun noted the applicant had stopped taking antidepressant medication (Prrozac and Effexor XR) at the time of the independent medical examination; apparently the applicant himself decided to stop taking the pills and later got his psychiatrist to agree. Dr. Zigun thought that close psychiatric follow-up was warranted to determine if they should be reinstated. He recommended a gradual, or desensitization-type return to work, followed by a release with no restrictions.
The applicant testified at the hearing that he still has anxiety for which he still takes medications. He resumed taking the medication, which include Prozac and Serozone, when he went back to work. The medications affect his sex life. He does not sleep well. He feels uncomfortable at work around leaking steam. He has been late for work twelve times since returning to work in May 2000 due to medication adjustments.
Additionally, the applicant experiences "flashbacks" to the date of the accident. These include both visual images and less often the sense one of the injured workers is talking to him. He has the flashbacks daily. He describes the flashbacks as thoughts that jump into his mind without him intending to think about it, making him temporarily lose focus.
The applicant also contends his memory has decreased. He finds it necessary to consult manuals more often, and he forgets tools. His work has slowed down. While it has not kept him from work, he did testify he has been verbally reprimanded for being slow or forgetful.
On other hand, the applicant recently received a performance review, and it was very good. He was promoted to senior mechanic after returning to work in 2000, and resulting in a pay raise though he does the same work. In the six months preceding the hearing, he has never turned down an assignment or been unable to complete one. He has remained sober for over a year, and recently became married for the first time.
As noted above, the applicant filed an application seeking compensation for permanent partial disability and medical expense. The employer asserted it paid, or would pay, any related medical expense, but denies liability for any permanent partial disability.
Like the presiding ALJ, the commission credits treating doctor Roehrich's opinion on the applicant's permanent psychological residuals. At the time of the applicant's independent medical examination with Dr. Zigun, the applicant had stopped taking his medication, but the medication again became necessary when the applicant returned to work. Further, the applicant testified, credibly to the ALJ, that he has flashbacks and memory problems. Given the nature of the accident, that testimony is quite believable.
The employer argues that the applicant's "flashbacks" are similar to daydreaming, or that the applicant could not explain the difference. In fact, the applicant explained that daydreaming -- or recalling memories -- is volitional, while his flashbacks were not. Transcript, page 49. The commission credits the applicant's explanation on this point.
Specifically, the applicant testified his flashbacks were only about the work injury and not other bad or sad things in his life. He testified that as a result he has to stop to re-center himself, causing him to hesitate and making it uncomfortable to work. While the applicant discussed what was described by the self-insured employer's attorney as "pleasant" or "good" flashbacks, it is clear from his subsequent testimony that what the applicant experiences is more than just daydreaming. See transcript, pages 41-43 and 49.
Beyond that, the applicant experiences anxiety and has to take medication. He understandably feels uncomfortable at work in certain circumstances. He testified to memory problems, which of course could be a side effect of the depression. His claim for functional permanent partial disability in short is supported by more than the flashbacks.
However, the commission nonetheless concludes that the law does not permit the payment of compensation for permanent partial disability in this case. The employer points to court holdings that "no allowance may be made in a compensation award for physical or mental suffering that does not interfere with earning capacity." Shymanski v. Industrial Comm., 247 Wis. 307, 314 (1956). In that case, the court affirmed the commission's denial of permanent partial disability for post-concussional symptoms -- fatigue and headache -- because there was no evidence that they interfered with applicant's earning capacity.
Similarly, the court has said that permanent disability in nonscheduled cases is to be compared medically with injuries that would render a person permanently and totally disabled for industrial purposes, and not to injuries that would totally disable a person functionally without regard to loss of earning capacity. Kurschner v. Industrial Commission, 40 Wis. 2d 10, 18 (1968). See also Bituminous Casualty Co. v. ILHR Department, 97 Wis. 2d 730, 736 (Ct. App. 1980) (an award for PPD resulting from an accident must be based on some kind of prediction as to the impairment of earning capacity.) In many cases, of course, requiring a vocational rather than functional rating will result in a higher award, as a comparably minor functional loss may have a substantial vocational effect. In this case, however, the applicant's psychological condition does not require any work restrictions, and the applicant has resumed full employment in his former job.
In support of her award of permanent partial disability, the ALJ noted the supreme court's holding that an actual loss of earnings is not a requisite for permanent disability. Kohler Co. v. ILHR Dept., 42 Wis. 2d 396, 407 (1969). The applicant, meanwhile, points to language from an earlier case, Wagner v. Industrial Commission, 263 Wis. 553, 567b-567d (1956) which it reads to suggest that permanent partial disability may be paid solely on the basis of bodily impairment (or a functional rating), rather than wage impairment (or loss of earning capacity.) However, those cases also indicate that the commission must base its conclusions about permanent partial disability on the effect of the bodily impairment on the ability to earn wages, or some sort of impairment of earning capacity. Kohler, at 42 Wis. 2d 405-408; Wagner, at 273 Wis. 567c.
The law has also been significantly affected by the enactment of Wis. Stat. § 102.44(6). That subsection provides in relevant part:
"102.44(6)(a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
"(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.
". . .
"(h) In all cases of permanent partial disability not covered by ss. 102.52 to 102.56, whether or not the employee has returned to work, the permanent partial disability shall not be less than that imposed by the physical limitations."
The department's interpretative note provides:
"173 102.44(6) provides that in cases of non-scheduled injury permanent partial disability is to be determined on the basis of the physical limitations without regard to loss of earning capacity where the employee has returned to work for the same employer as at the time of injury at a wage loss of less than 15 percent. A good faith offer of employment refused by the employee without reasonable basis has the same effect as actual reemployment. The claims subject to this section including those upon which an award is issued remain open for the period of the statute of limitations in the event that there is a termination of the employment or a wage loss of 15% or more occurs."
In addition, Wis. Admin Code § DWD 80.34(1) provides, in part:
"DWD 80.34(1) Any department determinations as to loss of earning capacity for injuries arising under s. 102.44 (2) and (3), Stats., shall take into account the effect of the injured employee's permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors. . ."
Here, the applicant has returned to work for his time-of-injury employer at more than 85 percent of his pre-injury wage. Thus, even if he otherwise had a loss of earning capacity, his claim is barred as long as he works for the employer and earns 85 percent of his pre-injury wage.
Regarding an award for functional disability apart from loss of earning capacity, Wis. Stat. § 102.44(6)(a) and (h) and DWD's interpretative footnote state that such an award may be allowed even where an award for loss of earning capacity is barred, based on the worker's physical limitations. However, in this case the applicant's claim for permanent partial disability is not based on "physical limitations." The commission assumes that "permanent partial disability . . . imposed by the physical limitations" means a permanent partial disability rating based a physical as opposed to a mental limitation.
Indeed, the legislature and department used the term "physical limitations" in Wis. Stat. § 102.44(6)(a) and (h), but the term "physical and mental limitations" in Wis. Stat. § 102.44(6)(b) and Wis. Admin. Code § DWD 80.34(a). Thus, it can only be reasonably concluded that the legislature and department intend to allow a functional-based permanent partial disability award only for physical impairment, while a loss of earning capacity-based award may be based on physical or mental impairment (or both.)
In short, the commission does not believe the law permits awarding permanent partial disability on a disability rating based solely on mental or psychological limitations when a loss of earning capacity award is barred under Wis. Stat. § 102.44(6).
That is not to say that the applicant may not have the basis for an award in the future under Wis. Stat. § 102.44(6)(b). Moreover, he may continue to incur compensable medical expense to treat his psychological condition. Finally, the commission concludes that additional periods of temporary disability may occur as a result of the applicant's psychological condition. Therefore, it retains jurisdiction to permit future claims for disability and medical expense.
The findings and order of the administrative law judge are reversed in part and affirmed in part. No compensation is awarded. However, jurisdiction is retained to permit future orders and awards consistent with this decision.
Dated and mailed December 17, 2002
wallspa . wrr : 101 : 3 ND § 3.41 § 5.24
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did not discuss witness credibility or demeanor with the presiding ALJ in this case. See: Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617 (Ct. App. 1998). The commission agrees with the ALJ's conclusions concerning the applicant's residual psychological injury. Its reversal of the ALJ's award was not based on a different impression of witness credibility, but on the legal conclusion that an award for permanent partial disability due to the applicant's psychological condition may not now be made in this case.
cc:
Attorney Daniel R. Schoshinski
Attorney James C. Ratzel
Appealed to Circuit Court. Affirmed July 15, 2003.
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