GLENN F SAVOIE, Applicant

MARK SCHUSTER BUILDERS, Employer

SOCIETY INSURANCE A MUTUAL CO, 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 April 17, 2003
savoieg . wsd : 101 : 8  ND § 5.40

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

The ALJ found the applicant eligible for vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61, despite having voluntarily quit his employment with the employer. On appeal, the employer and its insurer contend that an employee who has voluntarily quit his employment with his employer is not eligible for vocational rehabilitation benefits.

However, the ALJ's decision is consistent with the commission's decision in Robert Mankse v. Raasch Construction and Engineering, WC Claim No. 1998-016330 (LIRC, June 24, 2002). In that case, the commission discussed at length the Division of Vocational Rehabilitation's (DVR) abandonment of its former policy that required individuals with seeking services as a result of injuries covered under the worker's compensation act to accept work from their employers that paid at least 85 percent of their pre-injury wage. In fact, DVR's current policy does not require such individuals even to attempt to return to work with their employers as a precondition to receiving DVR benefits. See: "Information for DVR Consumers With Worker's Compensation Claims," found in the Neal & Danas, Worker's Compensation Handbook (4th ed., 1997), appendix 4, page 37, at exhibit F.

The change in DVR policy is important, because under Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505, 512 (1957), the authority of the commission in granting or denying benefits Wis. Stat. § § 102.43(5) and 102.61 during periods of DVR-approved rehabilitation is extremely limited. Basically, if a worker has been certified for rehabilitation by DVR, the commission must award vocational rehabilitation benefits, unless the commission concludes that:

(a) highly material facts were withheld or misrepresented to DVR, or (b) DVR's interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power.

The commission previously found abuses of administrative power under some circumstances when DVR would certify someone for rehabilitation without requiring an employer contact or a work search, in apparent violation of its own former policy. However, once DVR changed its policy to eliminate the requirements of an employer contact or a work search, that avenue was closed to the commission.

In recognition of this problem, 2001 Wis. Act 37, effective January 1, 2002, made certain changes to the workers compensation statutes dealing with vocational rehabilitation benefits. Specifically, the legislature enacted Wis. Stat. § 102.61(1g), under which an employer or insurer is not liable for vocational rehabilitation benefits if the employer offers the worker, within a specified period, suitable employment that pays not less than 90 percent of the employee's pre- injury average weekly wage. However, because these changes did not take effect until January 1, 2002, they do not directly affect the applicant's eligibility for benefits in this case. Wis. Stat. § 102.04(3).

In sum, the circumstances of the applicant's separation from employment in this case establishes neither an abuse of administrative power by DVR in certifying the applicant for retraining nor that highly material facts were misrepresented or withheld. Consequently, the department and commission cannot reject the applicant's claim for vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and l02.61(1) on that basis.

cc: 
Attorney Joseph Berger
Attorney Paul M. Erspamer

Appealed to Circuit Court.

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uploaded 2003/04/28