CLIFFORD E TJUGUM, Applicant

UNITED COOPERATIVE, Employer

SOCIETY INSURANCE 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, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility and demeanor. 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, except that it makes the following modifications:

1. Delete the material beginning with the first full paragraph on page 15 of the ALJ's decision and ending with the paragraph beginning on page 16, and substitute:

"Dr. Shannon's work restrictions are adopted as most credible. Under those restrictions, Mr. Meltzer credibly opined that, after the work injury, jobs available to the applicant include desk clerk, security guard and delivery driver work paying $5.15 per hour to $8.50 per hour, and school bus driver work paying $7.30 to $11.50 per hour. Dr. Shannon assessed loss of earning capacity in the range from 30 to 40 percent.

"A straight wage loss comparison of the approximate mid-point of these wages ($8.50) over a 30-hour week (based on Dr. Shannon's limitation to a six hour day), results in a 44 percent loss. However, among the factors to be considered in assessing loss of earning capacity, along with a comparison of pre-injury and post-injury wage, is age. Wis. Admin. Code § 80.34(1). While the applicant's desire and motivation to work have not been affected by his age, it must be concluded that his age plays a role in his capacity in terms of his remaining years in the job market. In addition, while the applicant testified he would have pursued other employment after his season with the employer ended in 2000 had he not been injured, he in fact worked only in seasonal employment for the employer in 1999. August 9, 2001 transcript, pages 74-75. An award for loss of earning capacity at 40 percent is warranted under the facts of this case.

"The applicant accordingly is entitled to four hundred weeks of permanent partial disability compensation. As of April 9, 2003, 152 weeks, 1 day, of permanent partial disability (totaling $27,998.67) have accrued, while 247 weeks, 5 days (totaling $45,601.33), remain unaccrued.

"The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the entire permanent disability award. The future value of the fee is $14,720 (0.20 times $73,600.) However, as noted above, a considerable portion of the award on which the fee is based is unaccrued, resulting in an interest credit of $1,369.79 for advance payment of the unaccrued portion, and yielding a present value payment for the fee of $13,350.21. That amount shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days.

"The amount due the applicant within thirty days is $22,398.94, which equals the accrued portion of the permanent partial disability award ($27,998.67), less the 20 percent fee thereon ($5,599.73). The amount to be paid to the applicant in monthly installments of $797.33 as it accrues after April 9, 2003, is $36,481.06, which equals the unaccrued portion of the award ($45,601.33), less the 20 percent fee thereon ($9, 120.27)."

2. Delete the ALJ's interlocutory order and substitute therefor the second, third, and fourth paragraphs of the commission's INTERLOCUTORY ORDER set out below.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge, 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, Clifford E. Tjugum, Twenty-two thousand three hundred ninety-eight dollars and ninety-four cents ($22,398.94) in disability compensation.

2. To the applicant's attorney, Bruce F. Ehlke, Thirteen thousand three hundred fifty dollars and twenty-one cents ($13,350.21) in fees.

3. To Meriter Hospital, Two hundred and fifty-one dollars and sixty cents ($251.60).

4. To UW Health-Physicians Plus, Eight hundred and ninety dollars and fifty cents ($890.50).

5. To Turville Bay MRI, Nine hundred and ninety-five dollars ($995.00).

6. To Columbus Community Hospital, Three hundred and forty-six dollars and eighty cents ($346.80).

7. To Parkside Chiropractic Two hundred and fifty-nine dollars and seventy-six cents ($259.76).

8. To Medicare, One thousand nine hundred and eighty-four dollars and thirty-two cents ($1,984.32).

9. To Union Bankers, Four hundred and forty-four dollars and thirty-eight cents ($444.38) as reimbursement for medical expenses.

Beginning on May 9, 2003, and continuing on the ninth day of each month thereafter, the employer and its insurer shall pay Seven hundred ninety seven dollars and thirty-three cents ($797.33) per the month until the additional amount of Thirty-six thousand four hundred eighty-one dollars and six cents ($36,481.06) is paid.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed April 11, 2003
tjugcl . wmd : 101 : 8  ND § 8.24  § 5.20  § 5.21

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

1. Posture.

The employer and its insurer (collectively, the respondent) concede an injury on April 17, 2000, when the applicant was driving a pick-up truck pulling a trailer with an anhydrous ammonia tank along a highway and was struck from behind by a faster-moving vehicle. At issue is the nature and extent of the applicant's disability from the accident.

The applicant seeks permanent total disability from the accident. The respondent argued that the applicant's pre-existing condition alone accounts for any permanent disability, which the respondent asserts in any event is less than permanent total disability.

The ALJ credited Dr. Shannon's opinion regarding the cause and nature of the applicant's disability. The ALJ noted that while it was apparent that the applicant had relatively severe osteoarthritis, he had not been actively treating for the condition for five years prior to the injury. She noted, too, the objective findings of spasm in the medical reports from shortly after the work injuries. She also felt as treating physician that Dr. Shannon was in a better position to evaluate the applicant's condition. Accordingly, she concluded the applicant sustained permanent disability from the work injury, though she awarded only five percent functional permanent partial disability as rated by Dr. Kirchberg rather than the ten percent by Dr. Shannon, due to the level of activity shown in the videotape. Finally, based on Dr. Shannon's work restrictions, the ALJ awarded permanent partial disability on a vocational basis for loss of earning capacity at 48 percent.

Both parties appealed.

2. Discussion.

a. Causation.

The respondent challenges the ALJ's finding that the work injury resulted in permanent disability and permanent work restrictions. It argues first that the ALJ's reference to Dr. Shannon's status as treating practitioner misconstrues the law by applying a "treating practitioner rule" contrary to the court holding in Conradt v. Mt. Carmel School, 197 Wis. 2d 60 (Ct. App. 1995). However, as the commission has previously explained:

"First, of course, while the employer is correct that Wisconsin does not recognize a treating physician rule in worker's compensation, the commission cannot conclude that the ALJ made any error in crediting the treating doctor in this case. In Conradt v. Mt. Carmel School, 197 Wis. 2d 60 (Ct. App. 1995), the court rejected establishing a presumption in favor of treating doctors, to prevent the commission from disregarding the opinion of the treating doctor in favor of a one-time examiner absent "good and substantial grounds." Conradt, at 197 Wis. 2d 66-70. But nothing in Conradt prevents an ALJ from crediting a treating doctor, if the ALJ so chooses, because of his greater familiarity with the applicant's case. Conradt simply holds the ALJ is not required to make that presumption."

Kathy R. Krolikowski v. Divine Savior Hospital and Nursing Home, WC Claim No. 1997012872 (LIRC, October 31, 2002).

The respondent also argues more generally that Dr. Shannon's opinion is incredible because: the applicant denied treatment at the scene of the accident and only treated two days later because of the employer's request; when he initially treated he was not taken off work or given restrictions; Dr. Mitchell allowed him to return to work without restriction and opined he would have no PPD; the diagnosis is only a strain and does not require surgery; Dr. Bartlett opined he had an "exacerbation of his degenerative condition;" chiropractor Kirchberg allowed him to return to work with a relatively nonrestricting 50-pound weight limitation; the ALJ inconsistently rejected Dr. Shannon's functional permanent partial disability rating in favor of Dr. Kirchberg, while accepting Shannon's work restrictions over Kirchberg; and as the ALJ recognized, the activity level shown on the videotape seems inconsistent with the restrictions Dr. Shannon set.

None of these arguments persuade the commission. It is not uncommon for a person to not appreciate the extent of his or her injury and forego treatment immediately after a motor vehicle accident. Indeed, the applicant's neck was so swollen two days after the accident the employer recommended he treat. Even the independent medical examiner admitted the applicant suffered an injury of some sort.

It is true Dr. Mitchell did not initially take the applicant off work, and stated at some point that he expected no permanent partial disability. However, when his symptoms continued, family doctor Mitchell referred the applicant to specialists, and deferred to them regarding diagnosis and further treatment. In other words, Dr. Mitchell proceeded under the reasonable assumption the applicant had only a minor injury from which the applicant would recover without residual disability, but then referred him to specialists when his continuing symptoms proved otherwise.

Nor does the fact that surgery is not required establish there is no disability. IME Lemon opines that the applicant has permanent disability from his neck condition; he disputes that it was caused by the accident. Assuming the injury caused the disabling neck condition--directly or by acceleration, aggravation, or precipitation of a pre-existing condition--the permanent disability from the condition (which is acknowledged even by IME Lemon) is compensable. See Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59-60 (1968).

Likewise, the fact that Dr. Bartlett referred to the applicant's injury as an "exacerbation of a pre-existing condition," if anything, supports the claim. When doctors use the term "exacerbation" they mean an "increase in the severity of a disease or any of its symptoms." Dorland's Illustrated Medical Dictionary (29th ed. 2000). Dr. Bartlett's opinion is entirely consistent with a compensable injury on the theory the accident caused an acceleration, precipitation and aggravation beyond normal progression of an underlying degenerative condition. Lewellyn, supra.

In this case, the record shows that the applicant had advanced cervical spondylosis which was not symptomatic, or at least which had required treatment since January 1995 when the applicant was noted to "feel good" with a full range of cervical motion. The applicant then was in a car accident during work in April 2000. Thereafter, he had symptoms to the point that even the IME rated permanent disability, and stopped working as a truck driver following a few weeks on light duty in May and June 2000. On this record, Dr. Shannon reasonably concluded that the April 2000 car accident caused the pre-existing condition to become symptomatic to the point of permanent disability.

IME Lemon's contrary opinion is based on (a) the assumption the force of the collision as transmitted to the applicant was minor, and (b) the extensive pre-existing degeneration which, the doctor believed, must have been symptomatic even though the applicant denied symptoms and clearly did not treat.

However, even though some of the force of the collision was no doubt dissipated in the extensive damage done to the Mustang and the fact that the trailer was lifted up in the air, the commission cannot conclude the force transmitted to the applicant was "minor." Indeed, the employer's own witness described the impact and collision as significant. April 20, 2002 transcript, pages 18 et seq. Moreover, employers take their workers as they are, predisposition to injury and all, (1)  and the applicant had a progressively degenerative condition, which Dr. Shannon reasonably opined made him more susceptible to injury. Finally, neither the applicant's activities shown on the videotape (though inconsistent with his claim for permanent total disability), nor the apparent disagreement among the treating doctors as to appropriate work restrictions, establish that he did not sustain a work injury causing at least some degree of permanent disability and necessitating some level of permanent work restrictions.

b. Loss of earning capacity?

The next issue is whether the applicant is entitled to permanent partial disability for loss of earning capacity, and if so, how much. Permanent partial disability compensation for an injury causing disability to an unscheduled part, such as the neck injury here, is to be calculated based on the injured worker's loss of earning capacity. Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 76, 15. This is commonly accomplished by having a medical doctor set work restrictions resulting from the disability to the unscheduled part, and then estimating the loss of earning capacity based on a percent basis, based on those restrictions. See: Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d. 522, 528 (1976). The resulting percentage is then applied to the 1000-week base under Wis. Stat. § 102.44(3), to determine the total number of weeks of permanent partial disability compensation to be paid.

In this case, the respondent argues that because the applicant has essentially retired, he has not sustained any loss of earning capacity. In making this argument, the respondent points to two of the commission's prior decisions, Kurt D. Koltz v. Kolbe & Kolbe Millwork Company, Inc., Claim No. 88027739 (LIRC, February 14, 1991) and Neil Anderson v. General Motors Corporation, WC Claim No. 92068305, 1993 WI Wrk. Comp. LEXIS 523 (LIRC, November 29, 1993).

Koltz, however, involved a situation where the worker returned to work after his injury, was able to earn his former wages, but then was fired for reasonable cause when he refused to report for work despite being released by his treating doctor. The commission declined to reopen Mr. Koltz's award to redetermine permanent disability including loss of earning capacity under Wis. Stat. § 102.44(6)(b) under those facts. In this case, it has not been established that United Cooperative has offered the applicant work within his restrictions, much less that he was discharged after returning to work for the employer.

Anderson, which involved a worker who accepted an early retirement package rather than return to work within his restrictions, is also distinguishable. In that case the commission stated:

"The commission agrees with the administrative law judge that if the applicant had not decided to accept early retirement he could have returned to work for the employer with little or no wage loss. The employer had been able to accommodate the applicant's physical restrictions in the past. Given the fact that the applicant voluntarily removed himself from the labor market when he retired prior to the time that he had been released to return to work or had permanent restrictions assessed, and given the fact that the employer would have had work available for him within his restrictions if he had not retired, the administrative law judge appropriately found that the applicant was not entitled to a loss of earning capacity claim."

Again, the applicant in this case in fact attempted to return to work after his injury and stopped working because his treating doctors set restrictions which precluded a return to work with the employer. Even the employer's vocational expert does not suggest the applicant could continue to work for the employer under the restrictions set by Drs. Kirchberg or Shannon. This is not a case, as in Koltz or Anderson, where the relationship between the termination of employment with the time of injury employer and the applicant's physical and mental restrictions is in question. Rather, were it not for the injury and the resulting restrictions, the applicant would have continued working.

c. Amount of LOEC.

The respondent also disputed the amount of compensation for loss of earning capacity awarded by the ALJ. The commission dealt with this issue in the material inserted by amendment into the ALJ's decision.

The commission conferred with the ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). She stated the applicant appeared generally credible. Regarding the extent of loss of earning capacity, the ALJ stated the applicant testified credibly that he would have continued to work in 2000, not only for the employer but for other employers after his seasonal job with the employer ended, had he not been injured. The commission accepts that the applicant would have continued to work for the employer in 2000, though it notes that the applicant did not work for other employers in 1999. August 9, 2001, transcript, page 74. For that reason, as well as the applicant's age, the commission reduced the ALJ's award for loss of earning capacity.

d. Permanent total disability.

The applicant, for his part, argues the ALJ should have found him permanently and totally disabled on an odd-lot basis. An injured worker may make a case that he or she is permanently and totally disabled on an odd-lot basis by showing he or she is unable to secure continuing and gainful employment because his injury limits him to performing services so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. In determining whether the worker has made a prima facie case, the commission is required to consider, in addition to work restrictions resulting from the injury, various other factors, including age, mental capacity, education, and training. Balczewski v. DILHR, 76 Wis. 2d 487, 493-95 (1977).

If a worker makes a prima facie case of odd-lot unemployability, the burden shifts to the employer to show that the worker is in fact employable and that jobs do exist for the worker. In making this showing, an employer cannot simply point to evidence showing the worker is available for light duty work, and then round out the case with a presumption that light duty work is available. Balczewski v. DILHR, 76 Wis. 2d 487, 495 (1977). As to the question of whether the applicant has made a prima facie case, however, the commission may consider a worker's own efforts to find work. See for example, Frederick West v. LIRC, Case No. 95-2622 (Wis. Ct. App., June 11, 1996). When a worker is not obviously odd-lot due to the combination of his physical capacity and the various odd-lot vocational factors (age, mental capacity, education, and training), it has been suggested that it is not unreasonable to place the burden of proof on the applicant to the extent of requiring reasonable efforts to secure suitable employment. 4 Larson, Workers Compensation Law § 84.01[4].

Here, after watching the videotape exhibit, the ALJ concluded that the applicant could still find employment reasonably stable employment in the areas outlined by Mr. Meltzer. The commission agrees, concluding the applicant has not made his prima facie case for odd-lot unemployability. Rather, this record best supports an award for permanent partial disability for loss of earning capacity based on the estimates provided by the employer's vocational expert Meltzer.

cc: 
Attorney Bruce F. Ehlke
Atttorney Andrew J. Quartaro

Appealed to Circuit Court. Affirmed March 3, 2004.

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(1)( Back ) If a work accident causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978); Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). 

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