DARLENE MARTIN, Applicant

ST FRANCIS HOME, Employer

CONNECTICUT INDEMNITY CO, Insurer

In January 2001, the applicant filed an application for hearing seeking compensation related to an October 14, 1998 date of injury. The claim was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on January 16, 2002, with a close of record on March 15, 2002.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $344.40. The threshold issue before the ALJ was whether the applicant suffered an injury on October 14, 1998, arising out of her employment with the employer, while performing services growing out of and incidental to that employment. If a compensable injury were established, ancillary issues included the nature and extent of disability and the respondent's liability for medical expense.

The ALJ issued his decision on April 26, 2002. The respondent filed a timely petition for commission review. After considering the petition and the positions of the parties, and reviewing the evidence submitted to the ALJ, the commission makes the following:

The applicant was born in 1963. She worked for the employer as a certified nursing assistant. She injured her back in July 1997, but eventually recovered.

On October 14, 1998, the applicant noted the onset of pain after moving or repositioning patients. She did not recall any single traumatic event. On October 20, 1998, she sought treatment from a physician's assistant, Larry Plummer, who initially attributed her problem to the July 1997 work injury. Mr. Plummer set light duty restrictions and prescribed physical therapy. The applicant treated with Mr. Plummer on a few more occasions in October and November 1998, then was treated by a family doctor, Jean Hoyer, M.D., who referred her to Lynn E. Quenemoen, M.D.

Dr. Quenemoen first saw the applicant on December 11, 1998. His note for that date states the applicant noted achiness in her back over a two day period in October 1998, that the applicant did not remember any particular work or nonwork activities that may have precipitated her pain, and that she was a nursing assistant who did a great deal of lifting. His diagnosis was "neck and back pain, work injury, not progressing well with physical therapy." He took her off work pending re-examination.

Later that month, Dr. Quenemoen released the applicant to sedentary work for four-hour shifts. He reiterated those restrictions in February and March 1999. The employer was able to accommodate the applicant's initial restrictions to part- time, sedentary work, though at a substantial decrease in pay to $5.15 per hour. Meanwhile, in January 1999, the applicant began her own, self-financed course of vocational training at a technical college to obtain certification as a medical technician. Beginning in February 1999, the applicant worked half-time for the employer (pursuant to her restrictions), and went to school three-quarters time.

In April 1999, Dr. Quenemoen noted the applicant was working half-time and going to school three-quarters time. He released her to return as needed, and continued her sedentary work restrictions. A "report of work ability" he prepared at that time, however, did not include any restriction on hours.

In October 1999, the applicant finished her self-financed training, and became certified as a medical assistant. In December 1999, she found full-time work as a certified medical assistant at $9.66 per hour. At the time of the hearing, she was earning $10.50 per hour.

Treating doctor Quenemoen's expert opinion is at exhibit E. Dr. Quenemoen diagnosed mechanical and myofascial low back pain, caused by the applicant's work exposure to "a great deal of lifting." On April 19, 1999, he rated permanent partial disability at five percent. At that time, he thought additional treatment including a TENS unit and physical therapy might be warranted. He also set sedentary work restrictions on April 19, 1999, which he later identified as permanent but subject to modification.

Dr. Quenemoen's final set of work restrictions is listed in a "Physical Residual Functional Capacity Questionnaire" at exhibit E. These allow for occasional lifting up to 20 pounds, with a change of position between sitting and standing every 15 minutes. He allowed an eight-hour workday equally divided between sitting and standing. He allowed only occasional twisting, stooping, crouching, and ladder climbing. The doctor also indicated she would have periodic bad days, though she could work if she uses the medication Ultram.

The respondent offers the expert medical opinion of Stephen Barron, M.D.; his report is at exhibit 5. His opinion was that the applicant did not actually have a work-related injury in October 1998, and that if she did it caused only a short period of temporary disability ending in February 1999 after which she recovered with no residual disability, need for treatment, or work restrictions.

The applicant's vocational expert is Thomas N. Findlay; his report is at exhibit C, as supplemented at exhibits A and B. He opined that under Dr. Quenemoen's restrictions as set out in the December 2001 "Physical Residual Functional Capacity Questionnaire" the applicant would no longer be able to work in her former job as a nursing assistant. Mr. Findlay went on to rate the applicant's loss of earning capacity at 35 to 40 percent, assuming the applicant's retraining as a certified medical assistant were not considered. Exhibits B and C. Considering the retraining as medical assistant, he rated a considerably lower loss of earning capacity at 10 to 15 percent.

Mr. Findlay also rated loss of earning capacity assuming the applicant would have been able to pass certain tests allowing her to practice as a registered nurse, an occupation also foreclosed to her under Dr. Quenemoen's work restrictions. Under this premise the applicant would have been able to practice as a registered nurse, Mr. Findlay rated loss of earning capacity at 50 to 55 percent if the applicant's retraining as a medical assistant is not considered and 35 to 40 percent if the medical assistant retraining is considered.

The employer's vocational expert is Richard Armstrong; his reports are at exhibits 6 and 8. He, naturally, rated no loss of earning capacity under Dr. Barron's opinion, as that doctor opined there would be no permanent restrictions. Mr. Armstrong also indicated she had no loss of earning capacity even under Dr. Quenemoen's restrictions, as she made $10.48 per hour when he interviewed her in 2001 (and expected a $0.48 per hour raise) as compared to $8.61 as a nursing assistant in 1998.

In his follow-up report at exhibit 8, Mr. Armstrong did note the average paid to nurses aides in 2001 was $10.32, which is closer to the $10.48 the applicant was actually earning as a medical assistant at the time. However, Mr. Armstrong noted the average paid to medical assistants in 2001 was $12.07, which of course is substantially higher than what nursing assistants are paid. He reiterated his opinion of no loss of earning capacity, even under Dr. Quenemoen's restrictions.

The first issue is whether the applicant suffered an injury on October 14, 1998, which arose out of her employment with the employer, while performing services growing out of and incidental to that employment. Assuming an injury is found, the commission must also consider the related question of the nature of any disability from that injury.

On both of these points, the commission, like the ALJ, finds Dr. Quenemoen's opinion most credible. The applicant testified, credibly to the ALJ, that she experienced the onset of symptoms while working repositioning and moving patients. Although she does not recall a specific incident, her duties were relatively heavy and repetitive. Further, the applicant began seeking treatment shortly after October 14, 1998, for complaints that -- unlike her prior back injury in July 1997 -- did not resolve. Further, the commission notes that on appeal the respondent does not specifically challenge the ALJ's findings on this issue. The commission therefore concludes that the applicant did sustain an injury arising out of her employment, while performing services growing out of and incidental to that employment, on October 14, 1998; that she was left with permanent partial disability on a functional basis at five percent compared to disability to the body as a whole; and that she is subject to the permanent restrictions set by Dr. Quenemoen in the Physical Residual Functional Capacity Questionnaire dated December 10, 2001, at exhibit E.

The next issue is the extent of permanent partial disability on a vocational basis for loss of earning capacity. Under Wis. Stat. § 102.44(6), an award for loss of earning capacity may be barred if an injured worker returns to work with his or her time-of-injury employer with an actual wage loss of less than 15 percent compared to his or her time of injury earnings. However, as the ALJ pointed out, while the applicant did return to work for the time-of-injury employer after her injury, her wage loss during that employment always exceeded 15 percent. Nor does it appear that the employer ever offered employment at 85 percent of pre- injury wage. In short, Wis. Stat. § 102.44(6) does not apply in this case.

Rather, the main issue on appeal is whether the commission should consider the applicant's post-injury, self-financed retraining as a medical assistant in assessing loss of earning capacity. There is authority on both sides of this argument.

The argument that the applicant's self-financed educational effort should not be counted against her has been set out at 5 Arthur Larson & Lex K. Larson, Workers' Compensation Law § 95.04 (LEXIS NEXIS 2002), which states:

"....[if the] claimant, although physically severely impaired, by ingenuity, determination, and perseverance, and at his or her own expense, has managed to muster up some kind of earning capacity. In such cases courts may be understandably inclined to conclude that the claimant's reward for such laudable efforts should not be loss of benefits."

5 Arthur Larson & Lex K. Larson, Workers' Compensation Law § 95.04 (LEXIS NEXIS 2002). Similarly, writing specifically about the determination of impairment of earning capacity from a work injury, the treatise states:

"Under the principle that the preinjury-post-injury comparison should rule out all extraneous factors, it follows that when a claimant offsets the wage loss that would normally attend physical impairment by increased training and education ... corrections should be made for those variables. A university graduate assistant, who was injured while making $40 a month, and who went on to complete his education did not therefore forfeit his right to compensation, since the impairment of the physical structure of his body had not been in any degree lessened."

Id., at § 81.05[1].

The respondent argues, however, that it is appropriate to consider a self-financed rehabilitation program in determining a loss of earning capacity, citing Benjamin Thompson v. Trempeleau Electric Cooperative, WC claim no. 92016992 (DILHR, February 6, 1996). (1)   The commission reached a similar conclusion in Theodore Kazmer v. Sentry Foods, WC claim no. 91067098, 1997 WI Wrk. Comp. LEXIS 394 (LIRC, March 26, 1997), holding:

"The applicant wants his award for loss of earning capacity increased, arguing that the ALJ erred by rejecting the opinion of his expert. The applicant contends that the commission should have rated loss of earning capacity as of the date of injury. At the time of the injury, of course, the applicant had not yet graduated from college.

"However, sec. DWD 80.34, Wis. Adm. Code, sets out the factors which the commission should consider when awarding loss of earning capacity. These factors include 'potential' earnings, 'future' suitable occupational change, willingness to change occupation or to participate in rehabilitation programs. Date of injury wage loss is only one factor under sec. DWD 80.34, Wis. Adm. Code. Stated simply, the administrative rule establishes that it is not inappropriate to consider educational attainment reached after the date of injury, or even the healing plateau date, particularly where the applicant is a student when injured.

"Along somewhat the same lines, the applicant points out that he put himself through college, and that it would unjustly enrich the insurer to allow it to reduce his loss of earning capacity award based on his self-financed education. However, in this respect, the applicant is treated no differently than an educated worker who is injured after completing his or her education. Stated simply, the commission does not discount a worker's level of education simply because the applicant, not the employer, paid for it. Indeed, the commission has previously considered the effects of a self-funded retraining program when assessing loss of earning capacity, even when the retraining program was undertaken as a direct result of the work injury. Colleen Laack v. Creative Community Living Services, WC claim no. 92008370 (LIRC, November 30, 1995)."

The Laack case, factually, is quite similar to the applicant's case now before the commission. The applicant was injured in December 1991 while working for the employer as a residential coordinator in a group home. Thereafter, she began a retraining program in surgical technology which was authorized by DVR. She sought vocational training benefits under Wis. Stat. § § 102.35 and 102.61;  these were denied in a prior decision. She then claimed loss of earning capacity, but the ALJ denied this claim as well, finding that her earning capacity following the December 1991 injury was restored by the retraining in surgical technology which the applicant did not complete until 1995. The commission affirmed noting:

"The commission agrees with the administrative law judge that it is unfortunate for the applicant that the employer was able to prevail in its defense against payment of the retraining benefits, and then use that same retraining program as a defense against a current loss of earning capacity claim. However, based upon consideration of the factors under section Ind 80.34 of the Wis. Admin. Code, including the applicant's training, previous work experience, previous earnings, likelihood of future suitable occupational change and the other factors, and given Mr. Ginter's report as well as his testimony at the hearing, the evidence was sufficient to raise a legitimate doubt that the applicant suffered any loss of earning capacity as the result of her work injury."

Colleen Laack v. Creative Community Living Services, WC claim no. 92008370, 1995 WI Wrk Comp. LEXIS 69 (LIRC, November 30, 1995).

In sum, the commission concludes it is appropriate to consider the applicant's post-injury, self-financed retraining efforts in determining her loss of earning capacity award. Consideration of those efforts seems especially warranted where, as here, those efforts have demonstrably affected the applicant's earning capacity, as shown by her ability to find higher-paying work as a medical technician.

In contrast, the applicant's pre-injury efforts to obtain certification as a registered nurse were less successful. She completed that retraining by 1995, but twice failed the necessary exams to obtain registration. There is substantial reason to question whether the applicant would have ever been employed as a registered nurse. While the applicant's training in preparation for the registered nurse examinations -- and the loss of her ability to do that work as a result of the work injury -- is entitled to some consideration in determining loss of earning capacity, it is given significantly less weight than her successful efforts to obtain certification and employment as a medical assistant.

The applicant's vocational expert, Findlay, found a residual 10 to 15 percent loss of earning capacity, considering the applicant's retraining and re-employment in a higher-paying wage job as a medical assistant. Mr. Findlay's opinion is supportable under what vocational experts sometimes term as a "loss of access" kind of theory. The "loss of access" theory recognizes that loss of earning capacity is not based solely on actual wage loss, but on the ability to earn wages more generally, so that the loss of the ability to do lower-paying work is still a loss which may be compensated. Factoring in the applicant's age, her employment history, the effect of the restrictions in light of her unsuccessful efforts to obtain certification as a registered nurse, and the other factors under Wis. Admin. Code § DWD 80.34(1), and giving the opinions of the vocational experts appropriate weight under Wis. Stat. § 102.17(7), the commission determines that the applicant has sustained a 15 percent loss of earning capacity into which is merged the "functional" rating of five percent.

The applicant is therefore entitled to 150 weeks of permanent partial disability compensation, all of which has accrued. At the rate of $179 per week (the statutory maximum for injuries occurring in 1998), the total amount awarded in permanent disability compensation equals $26,850.

The applicant agreed to an attorney fee fixed under Wis. Stat. § 102.26 at 20 percent of the permanent partial disability awarded, or $5,370. The applicant's attorney is also entitled to costs of $1,143.99. These amounts shall be deducted
from the applicant's award, and paid within 30 days. The remainder, $20,336.01, shall be paid to the applicant within 30 days.

The final issue is whether an interlocutory order is appropriate. Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:

"...Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards."

In general, an interlocutory -- as opposed to final -- order to permit future disability and medical expense awards is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956); Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973).  However, the level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is not great.

When the words "in its discretion" were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included one of its explanatory notes in its annotated version of the Worker's Compensation Act stating:

"This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate."

DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27. The text of the note has been substantially retained through the current version of the annotated act, see DWD, Worker's Compensation Act of Wisconsin, with amendments to January 1, 2000 (WKC-1-P (r. 7/2002)), note 99. (2)

The medical justification for an interlocutory order here is Dr. Quenemoen's expectation of further treatment including a TENS unit or physical therapy when he wrote his practitioner's report on April 28, 1999, and his indication that the applicant had good days and bad days -- requiring the use of medication on the bad days. Based on Dr. Quenemoen's credible opinion, this order shall be left interlocutory to permit orders and awards for medical expense and additional compensation for permanent or temporary disability that may arise in the future.

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, Twenty thousand three hundred thirty-six dollars and one cent ($20,336.01) in disability compensation.

2. To the applicant's attorney, the sum of Five thousand three hundred seventy dollars ($5,370) in fees and One thousand one hundred forty-three dollars and ninety-nine cents ($1,143.99) in costs.

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

Dated and mailed May 19, 2003
martind . wmd : 101 : 9  ND § 5.20  § 9.2

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The commission did not confer with the presiding ALJ concerning witness credibility and demeanor because its reduction of the loss of earning capacity award was not based on the credibility of any witness who testified before the ALJ. 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).

cc: 
Attorney Manlio G. Parroni
Attorney Richard D. Duplessie

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(1)( Back ) The applicant objects to the respondent's citation to the DILHR ALJ's decision case, asserting that Wis. Stat. § 809.23(3) prohibits the citing of a nonpublished opinion as precedent or authority. However, the court of appeals has held that Wis. Stat. § 809.23(3) does not prohibit the citation of circuit court decisions -- at least as for the limited purposes of persuasive, rather than binding, authority -- suggesting that the non-citation rule is limited to unpublished court of appeals decisions. Brandt v. LIRC, 160 Wis. 2d 353, 361-65 (Ct. App. 1991). Moreover, Wis. Stat. § 809.23(3) by its terms is limited to citations "in any court of this state." 

Commission decisions are based on their own facts, and are not binding authority. See: Nick v. State Highway Commission, 21 Wis. 2d 489, 495 (1963) (administrative agencies like the commission are not bound by their own prior determinations) and Nelson Bros. v. Revenue Dept., 152 Wis. 2d 746, 756 (Ct. App. 1989) (administrative agencies are not bound by the strict doctrine of stare decisis). Nonetheless, the appellate courts consider whether the commission has previously issued decisions on an issue when considering the applicable level of deference on review. Langhus v. LIRC, 206 Wis. 2d 494, 503 note 7, 557 N.W.2d 450 (Ct. App. 1996); Virginia Surety v. LIRC, 2002 WI App 277, 16, 17, 258 Wis. 2d 665, 679-80, 654 N.W.2d 306.

(2)( Back ) Reviewing courts give great weight to these interpretative notes. Pigeon v. DILHR, 109 Wis. 2d 519, 524 (1982). 

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