STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PAMELA BIDDLE, Applicant

DANA CORP, Employer

TWIN CITY FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
, Claim No. 2000-019424


Dana Corporation and Twin City Fire Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 6, 2002. Briefs were submitted by the parties. An occupational injury to the applicant's neck and shoulders was conceded as having occurred on March 28, 2000, and 2 percent permanent partial disability of the whole body was also conceded and paid in the amount of $3,680.00. At issue is the extent of permanency, including loss of earning capacity, attributable to the conceded occupational injury.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is December 17, 1959, began her employment with the employer in 1995. She was hired as a temporary employee but after two months became a full-time machine operator. She operated presses which cut gaskets and flattened and installed fire rings. In 1998, she transferred to an inspector position which involved measuring and testing gaskets. This involved repeated lifting of weights up to 15 lbs. On March 28, 2000, she was in a seated position pressing down on a weight used in measuring gaskets when she experienced pain from her right thumb up into her right shoulder.

The applicant began treating with Dr. Pamela Thomas-King on April 10, 2000, with complaints of neck and bilateral upper extremity pain which had persisted since the work incident. A cervical MRI revealed mild degenerative disc disease with a minimal disc at C5-6, not involving cord compression or impingement. The applicant received conservative treatment including a nerve block, epidural injections, physical therapy, a TENS unit, and biofreeze. On September 28, 2000, Dr. King diagnosed neck/shoulder pain with bilateral upper extremity pain, and low back pain with radiculopathy. She prescribed continued conservative care.

At the insurer's request, Dr. Daniel Wartinbee examined the applicant on October 4, 2000. He diagnosed a work-related muscular strain causing chronic persistent pain with evidence of an upper neck strain and right arm discomfort. He recommended additional conservative treatment.

On April 27, 2001, the applicant stopped working due to continuing symptoms. Dr. Wartinbee reexamined her on June 20, 2001. He diagnosed an ongoing, work-related chronic pain syndrome with evidence of upper trapezoid neck strain and right arm discomfort.

The applicant was referred to a pain management treatment program at Columbia Hospital under the direction of Dr. William Stewart. On September 11, 2001, Dr. Stewart evaluated the applicant and noted diffuse symptoms of burning and pressure involving the applicant's upper cervical region and both arms, including numbness and tingling in her fingers. On October 29, 2001, Dr. Stewart wrote a letter to the referring physician, recounting the fact that the applicant had attended the outpatient pain treatment program from September 9 through October 29, 2001. He opined that she had reached a healing plateau and assessed 2 percent permanent partial disability. He released her for full-time, sedentary work. Dr. Stewart wrote that the applicant's effort in the program was submaximal and punctuated by absences, tardiness, childcare concerns, and questionable motivation. He also noted that she missed numerous opportunities for advancing her program and vocational planning, and that despite coaching and encouragement she lacked implementation of pain management strategies into her daily living. Furthermore, he found her superficially cooperative and poorly motivated during treatment, with no improvement in mood or affect and poor attendance and compliance. He opined that overall, the applicant's performance at the pain clinic was punctuated by poor motivation and submaximal effort.

The applicant returned to work as a parts inspector on November 5, 2001. Her duties included placing gaskets on a table in front of her, wiping off excess silicone with a cloth and solution, and scraping off the larger beads of silicone with a small knife. Performing this task bothered her hands, shoulders, and arms. On her first two days of work, she left work early due to her physical discomfort. On each of these days she gave notice to her supervisor that she was leaving. On her third day she left after only two hours of work, and although she signed out on a performance sheet and wrote that she was in pain, she did not verbally inform anyone that she was leaving. The employer discharged her effective November 8, 2001, because she had walked off of the job without notifying her supervisor.

In January 2001, the applicant had started a daycare business which she operates out of her home, caring for anywhere between three and eight children at a time. This includes infants and children up to about eight years of age. Her daughter and her husband assist her, although her husband has a full-time, second shift job at a printing company, and her daughter works full-time at a nursing home on an "off and on" basis. The applicant and her husband also care for three foster children. She has not looked for work outside her daycare business since being discharged by the employer.

On July 17, 2002, Dr. Wartinbee examined and evaluated the applicant for a third time. In his report dated July 26, 2002, he indicated that the applicant should be able to work with permanent restrictions of 30 lbs. frequent lifting, 40-50 lbs. maximum lifting, and limited repetitive use of the upper extremities and neck. He assessed 3 percent permanent partial disability.

The applicant underwent a functional capacity evaluation on February 6, 2002, which placed her in the sedentary work category. Poor tolerance was demonstrated for lifting, sustained reaching, and repetitive motion. Difficulty was also noted with prolonged squatting, kneeling, and climbing. Indications of submaximal or inconsistent effort were noted.

The applicant's attorney asked Dr. N. M. Reddy to perform an evaluation of the applicant, which he did on May 30, 2002. Dr. Reddy noted complaints of pain in both hands, shoulders, and arms extending to the neck. The pain intensity was stated as being from 5 to 7 on a scale of 0 to 10. Dr. Reddy diagnosed cervical myofascial pain with initial onset of pain in the hands suggestive of cumulative trauma, history of wrist tendinitis in 1998, mild features of fibromyalgia syndrome, and psychophysiological pain reaction and depression. He also noted a mild degree of anxiety and moderate pain behaviors. He assessed restrictions of routine carrying and lifting up to 30 lbs., and occasional lifting up to 50 lbs. Dr. Reddy also indicated that "high repetition use" of the upper extremities or neck movements should be avoided as much as possible. He assessed 8 percent permanent partial disability.

The applicant dropped out of the 12th grade. She had a child in 1979 and another in 1987, and was primarily a homemaker until the early 1990's. However, she did work briefly in the 1980's at a nursing home and then in factory production jobs. She obtained her high school equivalency before beginning her employment with the employer in 1995. She was earning $13.87 per hour when injured in March of 2000. Her vocational expert, Michael Ewens, indicated that she averages approximately $600.00 per week from her daycare business, and receives $800.00 per month to care for her foster children. Ewens opined that if the applicant were to secure some sort of inspector's position, she would sustain loss of earning capacity (LOEC) of between 25 and 30 percent. Absent such a position, he placed her in the range of 55 to 60 percent LOEC.

Respondents' vocational expert, Donald Modder, opined that based on the restrictions set by Dr. Stewart and Dr. Thomas-King, the applicant's LOEC was in the range of 15 to 20 percent. Considering Dr. Reddy's restrictions, he believed the LOEC would not exceed the functional assessment of 8 percent. He also noted that were her discharge determined to fit within the legal parameters of Wis. Stat. § 102.44(6)(g), she would be precluded from any LOEC determination.

Wis. Stat. § 102.44(6)(g) provides:

"For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal."

Wis. Stat. § 102.44(6)(a) provides that where an injured employee has returned to work for the employer at a wage paying at least 85 percent of his pre- injury wage, the permanent disability award will be limited to the physical limitations (functional disability) without regard to LOEC. Wis. Stat. § 102.44(6)(b) provides:

"If, during the period set forth in s. 102.17(4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity."

The commission has historically interpreted the use of the word "may" in 102.44(6)(b) to allow the exercise of discretion in determining whether or not a termination or a quitting will result in a reopening for assessment of LOEC. The commission has found that it will reopen if the termination was without reasonable cause, or the quitting was due to physical or mental limitations, or there was an improper inducement to quit. Donald E. Robb, WC Claim No. 87-016091 (LIRC July 10, 1991).  This interpretation has been upheld in Circuit Court (See Terry Ann Mallette v. LIRC and Hartford Finishing, No. 95-CV-402 (Wis. Cir. Ct. Dodge County March 22, 1996)), and in an unpublished Court of Appeals decision, Hewitt v. LIRC and Birchwood Manufacturing, Case No. 92-0872, Dist. III (1992). The commission has always carefully examined the reason for the discharge, and has been unwilling to eliminate the LOEC assessment unless the discharge was plainly justified.

When the applicant walked off the job on November 8, 2001, she was in pain and signed out on her performance sheet, indicating why she was leaving. She exhibited poor judgment by not waiting to talk to a supervisor before leaving, but the employer had allowed her to leave the previous two days for the same problem. Under the circumstances, the commission does not consider her action to have been so egregious as to have constituted reasonable cause for discharging her. Nor was her action the equivalent of refusing an offer of employment. Accordingly, the commission finds that a loss of earning capacity assessment is appropriate pursuant to Wis. Stat. § 102.44(6)(b).

The applicant lost a relatively high-paying job with the employer, and as the administrative law judge noted, she has minimal transferable skills. On the other hand, her own treating physicians commented on her poor motivation and submaximal effort at rehabilitation, and on her pain behaviors. The February 2002 functional capacity evaluators also noted submaximal or inconsistent effort in their evaluation. Accordingly, the less restrictive functional limitations assessed by Dr. Reddy are accepted as credible. Another significant factor is the applicant's testimony that she has not looked for work beyond her home daycare business, nor has she contacted the Department of Vocational Rehabilitation. She further testified that she had no plans to look for other work. Considering all the relevant factors, the commission finds Modder's assessment of 15 percent loss of earning capacity credible.

The applicant is therefore entitled to 150 weeks of compensation at the applicable rate of $184.00 per week, for a total of $27,600.00. Respondents previously conceded and paid $3,680.00 in permanent partial disability, leaving a net amount due of $23,920.00, against which a 20 percent attorney's fee and $1,166.00 in costs will be assessed. The interest credit to be assessed against the attorney's fee is $4.79, leaving a present value fee of $4,779.21. The net accrued compensation due to the applicant is $15,835.60, and the net unaccrued compensation due to her is $2,134.40.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant as accrued compensation the sum of fifteen thousand eight hundred thirty-five dollars and sixty cents ($15,835.60); and to applicant's attorney, Dennis Wicht, fees in the amount of four thousand seven hundred seventy-nine dollars and twenty-one cents ($4,779.21), and costs in the amount of one thousand one hundred sixty-six dollars ($1,166.00).

On August 1, 2003, respondents shall also make payment to the applicant of currently unaccrued compensation in the amount of seven hundred ninety-seven dollars and thirty-three cents ($797.33), and shall continue to make this payment on a monthly basis until the currently unaccrued compensation has been paid in full in the amount of two thousand one hundred thirty-four dollars and forty cents ($2,134.40).

ORDER

The findings and order of the administrative law judge are reversed.

Dated and mailed June 18, 2003
biddlpa . wrr : 185 : 8    ND § 5.23

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In consultation with the commission, the administrative law judge indicated that he found the applicant to have been generally credible. However, the written comments from Dr. Stewart, together with Dr. Reddy's reference to "moderate pain behaviors," as well as the comments found in the functional capacities evaluation, led the commission to infer that the applicant had demonstrated poor motivation and submaximal effort at rehabilitation, as well as exaggeration of her pain symptoms. This inference was reinforced by the applicant's testimony that she has made no plans and made no effort to seek work beyond her home daycare business. Accordingly, Dr. Reddy's functional assessment and the lower end of the vocational assessments were found credible.

cc: 
Attorney Gary S. Stanislawski
Attorney Dennis H. Wicht


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/06/18