RALPH E BEECHER, Applicant
OUTOKUMPU COPPER KENOSHA INC, Employer
FREMONT INDEMNITY CO, Insurer
c/o CASUALTY INSURANCE
In September 1999, the applicant filed an application for hearing alleging that his day-to-day work activities up to April 7, 1997 caused progression of the applicant's pre-existing back condition, leading ultimately to a lumbar fusion surgery. He sought temporary total disability benefits from October 14, 1998 to May 14, 1999, permanent partial disability benefits on a functional basis at 15 percent to the body as a whole, permanent disability on a vocational basis for loss of earning capacity including permanent total disability, and payment of medical expenses.
On January 3, 2001, a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage at the statutory maximum. In dispute before the ALJ was whether the applicant sustained injuries arising out of his employment while performing services incidental to or growing out of that employment and, if so, the nature and extent of disability and related medical expense. The respondent also pointed out that the parties had entered into a limited compromise agreement concerning certain issues.
On April 5, 2001, the ALJ issued his findings and order finding a compensable injury, and awarding compensation for temporary total disability from October 14, 1998 to May 19, 1999, and for permanent total disability thereafter. The ALJ also awarded payment of certain medical expenses. The respondent has filed a timely petition for commission review.
The commission has consulted with the presiding ALJ concerning witness credibility and demeanor, considered the petition and the positions of the parties, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Underlying facts.
The applicant was born in July 1942. He worked for the employer, a foundry, for 29 years in what the applicant describes as strenuous employment.
As of April 7, 1997, the applicant had been working for several months on a "Z- mill" machine. The Z-mill ran sheets of metal from one large roll of metal to another roll or spool. The job required the applicant to lean over the first roll of metal to pick up the sheet of metal as it wound off the first roll, and then thread the sheet of metal into a slit on the second roll. The applicant would wind the sheet of metal from the first roll to the second, then thread the metal sheeting into the Z-mill machine and rewind it. The metal sheets themselves were five to eight inches wide, and approximately two inches thick. An entire roll might weigh 15,000 pounds. The job required bending over to pick up the sheets of metal, and then pulling them to thread sheets onto the rolls.
The applicant developed sharp pains in his lower back, leading him to seek medical treatment with an orthopedist, Christopher Noonan, M.D., in April 1997. The pain increased over time until the applicant could no longer work. On September 10, 1997, Dr. Noonan performed a third surgical procedure to the applicant's low back, a discectomy, fusion and graft. A fourth surgery has been suggested to help alleviate his condition, but applicant has not yet opted to have that procedure.
The applicant returned to light duty work in April of 1998, at which time he worked for two weeks, until the respondent reportedly ran out of light duty assignments for the applicant. Since then, the applicant has not returned to work for the employer. The respondent has now moved its operations out of Wisconsin, and did not offer to relocate the applicant to a light duty job at the respondent's new location. The applicant testified that if he had been offered such a transfer, he would have accepted it.
2. Causation.
The first question is whether the applicant sustained a disability from an accident or disease arising out of his employment with the employer, while performing services growing out of and incidental to that employment. The parties offer expert medical opinion on that question.
In a report dated September 22, 1998 (Exhibit F), treating surgeon Noonan explained that he performed the discectomy and fusion surgery on September 10, 1997, due to an L5-S1 degenerative disc. He explained that that condition was due to the applicant's day-to-day bending, pulling, and pushing work activities over the time from October 1995 to April 1997, acting in concert with the applicant's condition following two prior surgeries in 1981 and 1983. Dr. Noonan also opined the applicant remained temporarily disabled from April 1997 to at least October 14, 1998.
Dr. Noonan essentially reiterated this opinion in a practitioner's report dated September 10, 1999 (Exhibit E.) In that report, the doctor diagnosed an L5-S1 degenerative disc. He went on to describe the occupational exposure to which the applicant attributed his condition as a year and a half of work as a "Z-mill group leader" prior to April 1997, which involved extensive bending, pulling, and pushing activities. The doctor marked the "occupational disease" causation box on the form, indicating that an appreciable period of workplace exposure was either the sole cause or at least a material contributory factor in the onset or progression of the applicant's condition.
The applicant also offers the opinion of Richard K. Karr, M.D., who examined the applicant in April and July 1998. In his first report, Dr. Karr opined that the applicant developed L5-S1 degenerative disc disease partially due to natural progression, and partially as the sequelae of a back injury in 1977 with subsequent spine surgeries in 1981 and 1983. He opined, too, that work exposure and injuries after 1993 aggravated and accelerated the condition beyond its normal progression. Dr. Karr went on to state:
"In my opinion, Mr. Beecher's workplace exposure over the past decade had been the most substantial contributing factor in his progressive spinal disability; in his need for L5-S1 fusion surgery in September 1997. In my opinion, such exposure had aggravated/accelerated the L5-S1 degenerative disc disease beyond normal progression; had [led] to progressive low back pain/leg symptoms; had [led] to progressively diminishing working capacity; had necessitated consideration of surgical treatment in late 1997."
Exhibit G, April 27, 1998 report of Karr, page 11.
In an August 8, 1998, report following re-examination in July 1998, Dr. Karr opined that the applicant had developed by that time a "post-fusion syndrome" following the September 1997 fusion. He posited the possibility of a pseudoarthrosis. Regarding causation, Dr. Karr opined the applicant's condition was caused by workplace exposure over the last decade.
The respondent offers the reports of Thomas J. O'Brien, M.D., who first examined the applicant on July 12, 1997. In his report dated July 21, 1997 (Exhibit 4), Dr. O'Brien diagnosed progressive, multi-level degenerative disc disease at L4-5 and more pronounced at L5-S1 and status post lumbar compressions at L5-S1. He described the "flare-up" in symptoms on April 16, 1997, as representing a manifestation of his pre-existing condition. He noted that there was no new breakage as a result of the applicant's work exposure, and opined that patients who have degenerative disc disease will experience intermittent symptomatic flare-ups often with little or no inciting trauma, which simply represented the natural history of lumbar degenerative disc disease.
Dr. O'Brien re-examined the applicant on September 24, 1998. In his report of that date (Exhibit 3), Dr. O'Brien identified two dates of injury in February 1979 and April 1997. His diagnosis was degenerative disc disease at L5-S1, L4-5, perineural scarring, and status post three lumbar surgeries. On examination, he noted forward lumbar flexion allowing the applicant to touch his patella (kneecap) with his fingers, extension at 20 degrees, and lateral bending at 20 degrees. He also noted positive Waddel signs for symptom magnification.
Regarding causation, Dr. O'Brien explained the applicant's degenerative disc disease was due to factors including the normal aging process, the 1981 and 1983 surgeries, hereditary factors, and the applicant's tobacco use. He thought these factors (heredity, aging and tobacco use) were more important than the amount of heavy lifting the applicant did at work. He reiterated his earlier opinion that the applicant in fact experienced no new injury in April 1997, but only a manifestation of symptoms from his pre-existing condition. See Exhibit 3, September 24, 1998, report of O'Brien, pages 6-7.
Of these opinions, the commission finds more credible the opinions of Drs. Noonan and Karr. The applicant's duties as a foundry worker were strenuous. He testified that his duties in the last months of his employment involved strenuous leaning, bending, and pulling on a roll of metal weighing 15,000 pounds, and that these activities were hard on his back. He also testified that his condition gradually worsened during this employment, to the point that he saw Dr. Noonan. Like the ALJ, the commission accepts as credible the applicant's testimony on these points. Dr. O'Brien's opinion--which depends on the assumption the applicant's heredity, age and tobacco use were more important factors in the progression of the applicant's disabling condition than his employment activity--must be rejected. Indeed, on appeal, the respondent does not challenge the ALJ's finding on causation.
Thus, the commission finds that the applicant's employment activities to April 7, 1997, were at least a material contributory causative factor in the onset or progression of his disabling condition. The applicant sustained disability from an occupational disease arising out of his employment with the employer, while performing services growing out of or incidental to that employment, and the appropriate date of injury is April 7, 1997.
3. Nature and extent of functional disability; applicable work restrictions.
The next question is the nature and extent of disability from that injury. Compensation for disability has essentially three components in this case: temporary disability, permanent partial disability on a functional basis, and permanent disability on a vocational basis. It is the last component that is the main focus of the case as presented to the commission, with the applicant claiming permanent total disability on a vocational or "odd-lot" basis, and the respondent contending that the applicant's award should be limited to permanent partial disability.
In assessing the nature and extent of disability, the commission must determine when the applicant ended healing, and what his permanent functional disability and work restrictions are upon reaching an end of healing. To resolve these points, the commission again turns to the expert medical opinions.
Treating doctor Noonan issued temporary restrictions on March 4, 1998, which allowed sedentary work, four hours of sitting, standing, and walking with change of position; occasional stooping, crawling, climbing, crouching, kneeling, pushing, pulling, and twisting; and a maximum workday of four hours for two weeks, followed by an increase to six hours. Exhibit H. However, these restrictions were clearly temporary, as Dr. Noonan later opined in his report dated September 10, 1999 (Exhibit E) that that the applicant did not reach a healing plateau until May 19, 1999. In the September 1999 report, Dr. Noonan also opined that the applicant sustained permanent partial disability at 15 percent to the body as a whole as a result of persistent pain and possible pseudoarthrosis from the 1997 surgery.
Thereafter, Dr. Noonan referred the applicant for a functional capacity evaluation (FCE). Exhibit D, report of McReynolds, page 6. On referral from Dr. Noonan, the applicant saw occupational therapist, Ruth Meehan, for a functional capacity evaluation in November 2000. Therapist Meehan noted first that the applicant was cooperative and displayed consistency of effort. She also reported the following restrictions:
Dr. Noonan adopted these restrictions in a practitioner's report on form WC-16-B dated December 19, 2000. Exhibit C. Presumably, these restrictions would apply from May 14, 1999, the date Dr. Noonan opined that the applicant would be able to return to work subject only to permanent restrictions.
In his August 8, 1998, report, Dr. Karr opined that the applicant had not yet
reached an end of healing, and in fact needed additional surgery. He went on to
opine that the applicant currently exhibited a ten percent minimum partial
disability relative to the September 1997 surgery.
In his September 1998 report, Dr. O'Brien opined that the applicant had reached a
healing plateau from the September 1997 L5-S1 fusion surgery on September 17,
1998, the date of his examination. (1) He rated permanent partial disability following the surgery
at ten percent. Of course, Dr. O'Brien also opined, as outlined above, that the
applicant did not require the surgery as the result of any injury on April 7, 1997,
whether from occupational disease or otherwise.
Dr. O'Brien also set out the following work restrictions:
"The claimant may occasionally lift 40 pounds and may occasionally bend and stoop and twist. He should be allowed to change positions every hour. He does not require any hourly limitations."
Exhibit 3.
The applicant testified that the day after the November 2000 FCE, he was extremely sore and probably could not have repeated his performance. He testified, too, that he is able to do little or no snow removal, and can only ride his lawn mower for 20 minutes at a time. He can wash the dishes, but cannot sit long enough to fish. He can stand about a half an hour, and can walk about two blocks. He can sit about half an hour before his back becomes painful. About an hour into the hearing, the ALJ noted that the applicant had been sitting for an hour, but that he had been squirming in his seat a great deal.
On this record, the commission credits the opinion of Dr. Noonan that the applicant did not reach a healing plateau until May 19, 1999, and that when he reached a plateau his permanent partial disability on a functional basis was 15 percent compared to disability to the body as a whole. The commission also concludes that the work restrictions outlined in the November 2000 functional capacity evaluation, as adopted by Dr. Noonan and set out above, are most credible.
In reaching these conclusions, the commission notes that Dr. Karr opined in August 1998 that the applicant had not reached an end of healing, and in fact needed additional surgery. Both Dr. Karr and Dr. Noonan posited the possibility of a pseudoarthrosis or failed fusion. Certainly, this case justified a longer healing period than the year normally given in cases of lumbar fusion, and greater residual disability than the ten percent minimum under the Wis. Admin. Code § DWD 80.32(11) for a discectomy and fusion procedure.
Dr. O'Brien, of course, concluded that the applicant reached an end of healing at an earlier time, rated permanent partial disability at only ten percent to the body as a whole, and set less limiting permanent work restrictions. However, Dr. O'Brien's opinions in this regard were due in part to his belief that applicant was exaggerating or inventing non-organic pain behaviors. Exhibit 3, September 24, 1998, report of O'Brien, page 7. However, the ALJ who observed the applicant testify, found his pain complaints credible.
The commission shares the ALJ's view on this point. The applicant, at 5'2" and 140 pounds continued to work in strenuous employment for many years following two back surgeries, until he was 55 years old. By the time Dr. O'Brien re-examined him in September 1998, the applicant had undergone a third surgery, a spinal fusion. He gave a full effort in the November 2000 FCE. The commission is disinclined, on this record, to conclude that the applicant invented symptoms or exaggerated his condition.
4. Extent of permanent disability on a vocational basis.
The next question is the extent of the applicant's permanent disability on a vocational basis in light of the work restrictions set out in the November 2000 FCE adopted by Dr. Noonan's report. On this issue the commission notes that the applicant was 55 when injured, and 57 when treating doctor Noonan found he reached an end of healing in May 1999. He has a 9th grade education and admitted that his grades were mostly Cs and Ds. He has made some effort to get a GED, but has not obtained one. He testified that he could read e-mails, "some" of the newspaper, and certain magazines.
In June 1999, the applicant tried to work as a security guard for about two weeks. This required standing and walking for about three hours per day, and it became painful for him after a half an hour. He could not continue in the job. He also testified that, after the employer's plant closed, he went to job service to try to find work. He had no success, and stopped going to job service after he qualified for social security disability. At some point after his injury, the employer transferred his former job to another state.
The applicant's expert is Charles McReynolds. He noted the applicant's 9th grade education, his poor academic achievement, and his failed efforts to get a GED. McReynolds also noted the applicant's test scores, which were 6th grade for math, 7th grade for reading, and 5th grade for spelling. He noted that, consistent with the applicant's hearing testimony, he had not read a book in 30 years but occasionally read the newspaper. Based on the scores, and particularly the applicant's difficulty with math, he was not a candidate for retraining. McReynolds noted also that the applicant qualified for social security disability, and stopped seriously looking for work thereafter.
Mr. McReynolds also noted that the applicant's job demands with the employer were quite physical, but he cannot do that work anymore as Dr. Noonan's restrictions placed him in the light duty work category. Mr. McReynolds particularly emphasized that Dr. Noonan had -- in his March 1998 note at least -- restricted the applicant to part time work. Noting also that the applicant could sit for an hour, stand for an hour, bend four times before experiencing pain, and walk a third of a mile, Mr. McReynolds opined the applicant was permanently and totally disabled on an odd-lot basis.
Mr. McReynolds also testified at the hearing. His testimony indicates that he was unaware that Dr. Noonan would adopt the November 2000 FCE when he wrote his report. Transcript, pages 60-61. Mr. McReynolds seems to acknowledge that the November 2000 FCE allowed the applicant to work full-time. Nonetheless, he still found the applicant permanently and totally disabled on an odd-lot basis under Dr. Noonan's restrictions, as set in the November 2000 FCE.
The employer's expert is Leanne Panizich. Her reports are at Exhibits 1 and 2. Her testing revealed average reading skills (34th percentile) which put the applicant at the high school level, but 6th grade levels of arithmetic and spelling (12th and 21st percentiles, respectively). She regarded these tests as showing "low average to average" academic skill, giving him the basic skills for work. She also observed that his age 58 did not "preclude a return to work."
In her first report dated August 14, 2000, Ms. Panizich observed that, regardless of his injury, the applicant would have had to pursue employment opportunities in the open market after the employer closed its plant. Thus, she concluded his pre-injury earning capacity was at an hourly rate of $11.70 to $12.00 per hour rather than the $14.10 per hour he earned while working for the employer. (2)
Ms. Panizich's first report was written before the November 2000 FCE. Her second report, dated December 20, 2000 (Exhibit 2) considers the FCE. She thought that, based on the restrictions set by therapist Meehan and adopted by Dr. Noonan, the applicant could work in a variety of light duty jobs including, assembly, inspection, light machine operation, cashiering and light packaging. Read in conjunction with her August 2000 report, Ms. Panizich opined that such light duty work paid in the range of $7.50 to $9.00 per hour.
Ms. Panizich thought it was rare to encounter an employer, these days, who would not accommodate the applicant's need for posture changes, and did not view that requirement as problematic in an employment setting. She concluded that, assuming the restrictions in the November 2000 FCE applied, the applicant had a 25 to 35 percent loss of earning capacity.
Under the "odd-lot" rule, a worker makes a prima facie case of permanent and total disability on an odd-lot basis by showing that he or she is unable to obtain any continuing or gainful employment because of the impairment from his work injury and other factors such as age, training and education. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). If an injured worker makes a prima facie case of odd-lot unemployability, the burden shifts to the employer to show that some kind of work is regularly and continuously available to the worker. Id. The employer cannot satisfy this burden by simply showing the applicant is capable of light duty work, and then adding a presumption that such work is available. Id.
In this case, the commission must reject Mr. McReynolds's opinion that the applicant is permanently and totally disabled under the odd-lot rule. In reaching this conclusion, Mr. McReynolds initially relied on the assumption that the applicant could not work full-time. However, Dr. Noonan set out part-time restrictions only in temporary work restrictions issued in March 1998, about a year before Dr. Noonan opined the applicant reached an end of healing in May 1999. Dr. Noonan did not reiterate the part-time restrictions when he adopted the November 2000 FCE. Indeed, the way the FCE is worded it strongly implies the applicant can work full-time, and certainly does not expressly state otherwise.
True, Mr. McReynolds testified at the hearing that the applicant was permanently and totally disabled on an odd-lot basis based the November 2000 functional capacity evaluation. However, Mr. McReynolds does not persuasively explain why his opinion remains the same, even without the limitation to part-time work which played prominently in his initial report. (3) In addition, while the applicant has made some effort to find work, the work restrictions set out in the November FCE suggest he could have made more of an effort, a factor that may be considered against him in determining whether he has established a prima facie case of odd-lot unemployability. (4) In short, the commission cannot conclude that the applicant has made a prima facie case.
On the other hand, the 35 percent loss of earning capacity rated by Ms. Panizich is too low for a 58-year-old who before his injury was able to work for many years worked in relatively-high paying but strenuous employment, who quit school in the 9th grade, who possesses few transferable skills, and whose math and spelling and reading skills are all below average in any realistic sense. At 58, the applicant's diminished ability to retrain must also be regarded a negative vocational factor, increasing his vocational loss from the injury. While there may be a question as to whether, at age 58, the applicant would have relocated when the employer moved his job to another state, certainly his age makes relocation to find higher paying light duty work after his injury less likely. Moreover, the commission believes that Ms. Panizich underestimates the obstacles to the higher- paying end of light duty work imposed by the applicant's age and his need for frequent position changes.
In short, after considering the factors set out in Wis. Admin. Code § DWD 80.34 and giving the reports of the vocational experts due weight under Wis. Stat. § 102.17(7)(a), the commission concludes that the applicant has sustained a loss of earning capacity at 60 percent.
5. Calculation of disability award.
Under a compromise agreement dated October 27, 1998, the applicant agreed not to claim any additional temporary disability accruing, or medical expense incurred, prior to October 14, 1998. However, the applicant did not reach an end of healing until May 19, 1999, and the respondent has failed to establish a reason not to pay temporary total disability in the interim. Accordingly, the applicant is entitled to temporary total disability from October 14, 1998 to May 19, 1999, a period of 30 weeks and 5 days. Due to the social security reverse offset under Wis. Stat. § 102.44(5), the applicant is entitled to disability compensation at the weekly rate of $308.45 during this period of temporary disability totaling $9,510.54, and his attorney is entitled to a fee at the weekly rate of $61.69, totaling $1,902.11.
The applicant has sustained permanent partial disability at 60 percent for loss of earning capacity, into which the applicant's permanent partial disability on a functional basis is merged. He is thus entitled to 600 weeks of permanent partial disability, accruing as of May 19, 1999. The maximum the insurer is obligated to pay after calculation of the applicant's social security reverse offset (the "weekly balance to employe" or line 7 on the department's Social Security Reverse Offset Worksheet) is $308.45 to January 1, 2001 and $370.12 thereafter. Because these amounts exceed the applicant's permanent partial disability rate of $174 per week (the maximum payable for injuries in 1997), there is no social security reverse offset on the permanent partial disability compensation.
Accordingly, the applicant is entitled to a total of $100,400 in permanent partial disability. As of December 10, 2001, 133 weeks and 5 days totaling $23,287 have accrued, while 466 weeks and 1 day totaling $81,113 are unaccrued. However, from the amount currently accrued, the sum of $17,4000 must be deducted pursuant to the limited compromise agreement. This leaves the sum of $5,887 currently due the applicant in permanent partial disability.
The applicant agreed to an attorney fee, calculated at 20 percent on the additional amounts awarded hereunder. With respect to the temporary total disability subject to the social security reverse offset, the fee equals $1,902.11. With respect to the permanent partial disability currently due the applicant, the fee equals $1,177.40. With respect to the unaccrued portion of the permanent partial disability award, the future value of the fee equals $16,222.60, and is subject to an interest credit for advance payment of $4,179.28, leaving a present value of $12,043.32. The total due the applicant's attorney in fees, then, is $15,122.83. Costs of $1,481.37 have also been established per a January 10, 2001 facsimile transmission from the applicant's counsel. Because the bulk of these expenses were for the report and testimony of the applicant's vocational expert regarding loss of earning capacity, the expenses shall be deducted from the applicant's permanent partial disability award, rather than paid from the reverse offset savings from the temporary total disability award.
The amount currently due the applicant for disability compensation thus equals $12,738.77. This is determined by adding his award for temporary disability ($9,510.54) to his currently due permanent partial disability ($5,887) award, then subtracting the attorney fees on currently due permanent partial disability ($1,177.40) and costs ($1,481.37). The total amount remaining to be paid to the applicant as it accrues after December 10, 2001 is $64,890.40, which equals the total unaccrued award ($81,113) less the future value of the fees thereon ($16,222.60). The remaining amount shall be paid the applicant in monthly installments of $754.
6. Medical expense and other issues.
The next issue is the respondent's liability for medical expense. The applicant has incurred reasonable and necessary medical expense to cure and relieve the effect of the work injury as follows: from MCW Physicians & Clinics, $350, all of which is outstanding; from St. Catherine's Hospital, $568.57, all of which is outstanding; from Froedert Memorial Lutheran Hospital, $70.50, of which $51.50 has been paid by the applicant and $19.00 remains outstanding; and from EMPI Inc, $595.25, of which $9.01 has been paid by the applicant and $377.59 has been paid by the insurer, and $208.65 remains outstanding. In addition, the applicant has incurred $235.22 in prescription expense, of which the applicant has paid $115.00 and $120.20 remains outstanding.
Consistently with the opinions of Drs. Noonan and Karr, the commission concludes that the applicant may require additional medical treatment and suffer additional temporary or permanent disability. Accordingly, this order shall be left interlocutory to permit future orders or awards for medical expense and disability compensation.
In addition, the amounts awarded hereunder are subject to recalculation based on redeterminations by the Social Security Administration.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Ralph H. Beecher, twelve thousand seven hundred thirty-eight dollars and seventy-seven cents ($12,738.77) in disability compensation.
2. To the applicant's attorney, Daniel J. Kelley, the sum of fifteen thousand one hundred twenty-two dollars and eighty-three cents ($15,122.83) in fees and one thousand four hundred eighty-one dollars and thirty-seven cents ($1,481.37) in costs.
3. To MCW Physicians & Clinics three hundred fifty dollars ($350.00) in medical expense.
4. To St. Catherine's Hospital five hundred sixty-eight dollars and fifty-seven cents ($568.57) in medical expense.
5. To Froedtert Hospital nineteen dollars ($19.00) in medical expense.
6. To EMPI, Inc. two hundred eight dollars and sixty-five cents ($208.65) in medical expense.
7. To applicant as reimbursement for medical expenses the sum of one hundred seventy-five dollars and fifty-one cents ($175.51) actually paid in out-of-pocket expense, and one hundred twenty dollars and twenty-two cents ($120.22) for outstanding prescription expense.
Beginning on January 10, 2002, and continuing on the tenth day of each month thereafter, the employer and its insurer shall pay the applicant $754 per month until the additional amount of $64,890.40 is paid.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed December 18, 2001
beecher . wrr : 101 : 8 ND § 5.31
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor in this case. He reported that the applicant seemed genuine in his testimony. The ALJ reported, too, that, as time passed in the hearing the applicant became uncomfortable though he made an effort not to fidget or move in his chair.
The commission largely accepted and adopted the ALJ's impression of the applicant's demeanor. The commission does not believe the applicant invented or exaggerated the complaints upon which Drs. Karr and Noonan based their decisions. Nonetheless, based on the physical ability or capacity demonstrated by the November 2000 FCE, which the applicant himself introduced into the record, the commission concludes he could have made a greater effort to find work after reaching a healing plateau.
The ALJ described Mr. McReynolds as straightforward, but not persuasive in getting his point across orally. He did not think McReynolds's hearing demeanor was a question of bias, so much the result of becoming confused. For whatever reason, however, Mr. McReynolds did not persuasively explain why his opinion that the applicant was permanently and totally disabled on an odd-lot basis remained the same regardless of whether he was able to work full-time.
cc:
Attorney Daniel J. Kelley
Attorney William R. Sachse, Jr.
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(1)( Back ) Dr. O'Brien's report twice states the end of healing date was September 18, 1997 (Exhibit 3, September 24, 1998, report of O'Brien pages 1 and 7). However, the commission concludes from the doctor's reference to "my Independent Medical Examination September 18, 1997" that the 1997 date is a typographical error, as the examination was on September 18, 1998.
(2)( Back ) On the other hand, Mr. McReynolds assumes that, although the employer closed its plant, the applicant would have relocated to take work in another plant, making the "displaced worker analysis" under which Ms. Panizich assumes a lower wage inapplicable. The "displaced worker" analysis is addressed in Gordon Feirtag v. Bell Well Sales Co, WC Claim No. 1997-023488 (LIRC, March 20, 2001).
(3)( Back ) See Exhibit D, page 11:
". . . More importantly, the restrictions imposed by Dr. Noonan at the time of Mr. Beecher's displacement, only approved part-time employment. Dr. Noonan has yet to modify those restrictions based on the recent FCE. As such I find that Mr. Beecher falls with in the Odd Lot Doctrine. . ."
(4)( Back ) 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 84.01[4] (MB 2001).
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