KENNETH M MILES, Applicant

SIEMENS POWER CORPORATION, Employer

TRAVELERS INSURANCE COMPANY, 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 August 7, 2003
mileke . wsd : 101 : 3   ND § 5.31

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The ALJ found that the applicant is permanently and totally disabled as a result of his work injury. On appeal, the employer and its insurer (collectively, the respondent) make two main points. The respondent first contends the applicant did not make a sufficient effort to find work, a factor the commission noted in Beecher v. Outokumpu Copper Kenosha Inc, WC claim no. 1997-028765 (LIRC, December 18, 2001), rev'd sub nom. Beecher v. LIRC, 2003 WI 100, ___ Wis. 2d ___, 663 N.W.2d 316. Second, the respondent challenges the ALJ's assertion that the respondent's expert, Mr. Gross, did not limit his labor market survey -- and hence his opinion regarding the applicant's loss of earning capacity -- to the "select" jobs that he opined the applicant was actually capable of performing.

The commission first notes that, after the parties filed briefs in this case, the commission's decision in Beecher was reversed by the court of appeals. The court of appeals concluded the commission erroneously required Mr. Beecher to show he made reasonable efforts to secure employment, id., ¶ 26. The commission has filed a petition for review in Beecher, and as of the date of this decision, the supreme court has not acted on the petition. Nonetheless, the court of appeals decision has been officially published and has statewide precedential effect. Wis. Stat. § § 752.41(2) and 809.23.

Further, even if the commission were not bound by the court of appeals decision in Beecher, the commission would not find against the applicant based on his lack of efforts to find work in this case. The applicant has a laudable history of full time employment, including even after his injury up to the point of his less than successful fusion surgery. He has qualified for social security. His employer has laid him off from the work he has performed his entire adult life -- work he is no longer capable of doing. One of his treating doctors opined a return to competitive employment is doubtful, and Mr. Goldsmith has concluded that work does not exist for the applicant. The applicant testified, credibly, that he cannot even walk two blocks without discomfort. Beecher aside, the applicant's efforts to find work cannot reasonably be considered to undermine his case for permanent total disability.

The respondent's second point is that its vocational expert, Mr. Gross, in fact confined his opinion to work the applicant could do, contrary to the ALJ's view. However, the commission agrees with the ALJ. Mr. Gross's report quite clearly states the applicant is restricted to select work in the various job classifications he identified. He later referred to the applicant as being capable of doing the work in the identified classifications, but that can only reasonably be interpreted to mean he was capable of doing some of the jobs in the identified classifications. Nonetheless, Mr. Gross's 45 to 55 percent loss of earning capacity rating was calculated as if the applicant could do all the work in the identified classifications.

Beyond that, based on the facts in this case, including the serious injury, the significant restrictions, the applicant's age (54 when he underwent the fusion surgery in 1998), his education (7th grade with some vocational training), his lack of transferable skills now that he cannot work as a welder, and the other factors set out in Wis. Admin. Code § DWD 80.34, the commission credits Mr. Goldsmith's opinion and concludes the applicant has made his prima facie case. Under Balczewski v. DILHR, 76 Wis. 2d 487, 495 (1977), then, the burden shifts to the employer to show that some kind of work is regularly and continuously available to the applicant, in other words that the applicant is in fact employable and jobs do exist for him.

Mr. Gross's report does not meet that burden in this case. At most, Mr. Gross identifies some job openings that might be within the applicant's restrictions if they are the types of select employment to which Mr. Gross himself acknowledged the applicant is limited. Mr. Gross's report does not establish that the job openings represent work in the select employment within the applicant's restrictions. Beyond that, simply showing the existence of job openings does not prove that jobs do exist for the applicant here--that is, work regularly and continuously available to a worker who is in his late 50s, has a seventh grade education, has significant work restrictions following a less-than-successful back surgery, and must take pain medication to function.

cc: 
Attorney Robert T. Ward
Attorney Ahmed J. Quereshi

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uploaded 2003/08/12