ANDREW C CASTILLO, Applicant

HOMETOWN INC, Employer

AMERICAN HARDWARE MUTUAL INSURANCE CO, Insurer

Both parties in this matter filed petitions for commission review and briefs were also submitted by both parties. At issue was the nature and extent of disability and liability for treatment expense related to the applicant's compensable work injury of July 1, 1990.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and remands in part the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

Dated and mailed February 6, 2003
castian . wpr : 175 : 8  ND § 5.20 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant asserts in his petition for commission review he is entitled to an award of temporary total disability benefits for the period of July 12, 1991 through December 13, 1991 and June 29, 1992 through December 16, 1992. The applicant also contends he is entitled to an award for loss of earning capacity due to his work-related injury on July 1, 1990.

However, the evidence indicates the applicant had reached a healing plateau from his work-related injury by the time he saw Dr. Anderson on June 12, 1991. The administrative law judge appropriately noted that there is no diagnostic testing which stated the applicant had relapsed in to any kind of healing period after that point. Dr. Anderson stated on June 12, 1991, he felt the applicant could anticipate full recovery over a period of time and at present should be able to function normally. Dr. Owens, who performed an independent medical examination report on October 22, 1991, stated the applicant had zero percent permanent partial disability and had long reached a healing plateau by the time of his report. Dr. Stellmacher, one of the applicant's treating physicians, noted the applicant had no permanent restrictions as of January 25, 1991. Based on a review of all the medical evidence in the record, the commission finds the applicant reached a healing plateau as of June 12, 1991, and his claim for further temporary total disability benefits for July 12, 1991 through December 13, 1991 and June 29, 1992 through December 16, 1992, is not supported by the medical records.

The employer contends the applicant has no permanent disability as a result of the work injury on July 1, 1990. However, the medical records indicate the applicant consistently complained of ongoing back pain and restrictions, as a result of the work incident when he injured his back in a vehicle accident on July 1, 1990. Dr. Marotz, who first saw the applicant in 1992, opined the applicant suffered one percent permanent partial disability to the body as a whole, as a result of the work incident on July 1, 1990. The commission credits Dr. Marotz' assessment.

The applicant contends the administrative law judge erred in dismissing his claim for loss of earning capacity. However, the administrative law judge appropriately noted the applicant has made important and occupationally detrimental lifestyle choices that have depressed his earning capacity. Dr. Marotz, the applicant's treating physician, noted in his WC-16-B dated November 20, 2001, the applicant has been working since August 12, 1992 without limits. The applicant also admitted he was working Monday through Friday, eight to ten hours a day with Printon, which he discontinued because Dr. Park garnished his wages.

The employer's vocational expert, Ms. Boehm, who prepared a report on April 26, 2002, noted the applicant is currently working two part-time jobs, and is paid $10.00 per hour in cash for these positions, and he is also self-employed as a fitness trainer charging $100.00 per hour, and a guitar instructor charging $10 to $14 per hour. Ms. Boehm stated the applicant wants to work only for cash as he has two judgments against him due to debts, and he is not seeking other employment. Ms. Boehm opined that based on the vocational analysis and the opinions of Dr. Park the applicant suffered a zero to five percent loss of earning capacity, as a result of his work injury.

The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility did not credit the applicant's testimony of his ongoing restrictions due to his work injury. The administrative law judge appropriately noted the applicant's lifestyle choices are such that the applicant could work if he wished. Based on Ms. Boehm's report and the evidence of the applicant's ability to work and perform other non-work-related activities, and based Dr. Anderson's report as well as Dr. Marotz' assessment, and given the lack of evidence the applicant suffered any breakage or disc herniation as a result of his work injury, and based on the factors contained in DWD Section 80.34 of the Wisconsin Administrative Code, the commission finds the evidence was sufficient to establish a legitimate doubt the applicant suffered any loss of earning capacity, as a result of his work injury.

The employer contends the administrative law judge erred in requiring the employer to pay for medical treatment expenses in violation of Wis. Stat. § 102.42(2) which limits the applicant's choice of physicians. The employer states the applicant has exceeded his statutory choices of treating physicians many times over. The administrative law judge did not address the issue whether the applicant had exceeded his choices of treating physicians, however, there is some testimony in the record concerning the applicant's referrals to various treating physicians and treatment regiments. The commission finds the evidence concerning whether the applicant received referrals for treatment to each of his various physicians to be inconclusive. Therefore, the commission in order to determine the truth of the matter remands the case to the department for testimony and written statements to be submitted regarding whether the applicant established a referral chain to his various treaters pursuant to Wis. Stat. § 102.42(2).

cc: 
Attorney Michael C. Frohman
Attorney Alan T. Tarnowski

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