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

SHARON L KADWIT, Applicant

SENTRY FOODS, Employer

AMERICAN MOTORISTS INS , Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-022462


The applicant submitted a petition for review alleging error in the administrative law judge's Findings and Order dated November 1, 2002. The employer submitted an answer. At issue is the nature and extent of the applicant's permanent disability as a result of her work-related neck injury on May 1, 1993 and medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge concerning his assessment of the credibility of witnesses, hereby reverses the Findings and Order below and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began working for the employer, a supermarket, in 1973 cashiering, stocking and performing office work, working 28 to 40 hours per week. The applicant sustained a work-related occupational neck injury on May 1, 1993 and treated with Dr. Robbins. The applicant underwent cervical fusion surgery on April 11, 1994, May 1, 1995, and November 3, 1997. Dr. Robbins opined the applicant reached a healing plateau on August 20, 1998, and returned the applicant to work with restrictions of five pounds lifting, and limited the applicant to part-time work.

The employer had no work available for the applicant within her restrictions. Subsequently in May 1999 the applicant went to work as a retail clerk for a new employer, a lamp shade store. The applicant worked for The Lamp Shader until June 23, 2000 when the employer went out of business, and the applicant has not looked for work since. The applicant testified she had difficulty working at The Lamp Shader but the evidence did not indicate that she lifted a great deal of time or was unable to perform the work which was very light duty.

Dr. Robbins referred the applicant to Dr. Davison, a psychiatrist, in April 1998, who evaluated the applicant for pain management and depression. The applicant's current symptoms include pain and tingling in her neck and upper extremities, tightness and headaches. The applicant testified she feels her neck pain, arm pain and headaches all relate to her neck surgeries, and any neck motion or use of her arms increases her symptoms. The applicant has a two-inch long titanium plate in her neck which restricts her neck movement, she has trouble swallowing and she cannot put her head back. The applicant continues to take pain medications and she is able to do some housework. The applicant admitted she suffered from other health ailments while working for The Lamp Shader in 1999, including bilateral hip and knee pain, and she treated with Dr. Puchinelli for both problems. The medical notes in November 2000 also indicate the applicant was suffering from shoulder, scapula and elbow pain due to a fall. The applicant saw Dr. Puchinelli in January 2001 for elbow and hip pain, and she was referred to Dr. Borca, who continues to treat the applicant for fibromyalgia.

Dr. Robbins completed a report dated September 13, 2000, in which he opined the applicant could return to work with a five pound lifting restriction, working four hours per day, three days per week. Dr. Robbins stated the applicant should alternately sit or stand, and she should avoid repetitive bending, lifting and twisting. Dr. Robbins opined the applicant sustained functional disability of 22 percent of the cervical spine and he did not believe the applicant was a good candidate for any further surgery, and he did not recommend any further treatment for her neck problem.

Dr. Robbins indicated in his functional capacity evaluation on June 12, 2002 the applicant be allowed rest periods twice per day. Dr. Robbins stated on July 30, 2001, at the present time the applicant is capable of gainful employment with her previous permanent sedentary restrictions which are based on her episodes of chronic pain and restriction of motion. The applicant's CT scan on September 13, 2000 found a stable, post-operative cervical spine showing multiple anterior interbody fusion procedures from the C4-5 to C6-7 levels with no untoward findings. Dr. Robbins' functional capacity report on June 12, 2002, states the applicant can walk and stand one to two hours and sit two to three hours, and she is required to change positions frequently during the day, and can lift less than five pounds frequently and up to ten pounds occasionally. The applicant is also required to take two rest periods per day.

Dr. Davison stated in a letter dated September 30, 2002 the applicant has worked with him in pain management for depression and anxiety since being referred by Dr. Robbins and intermittently her pain has improved, but anxiety and depression are still present. Dr. Davison opined considering her level of pain and emotional distress from the cervical injury the applicant is not able to work, which is a permanent condition. Dr. Borca stated in a letter dated October 4, 2002 it was her medical opinion the applicant fit the criteria for fibromyalgia and has a related chronic myofascial pain syndrome which developed as a direct result of her work- related neck injury. Dr. Borca stated in reviewing Dr. Robbins' 22 percent permanent partial disability rating, she would add a permanent partial disability of 5 percent based on continued pain, loss of range of motion and decreased endurance. Dr. Borca also noted the applicant's hip complaints are a separate issue along with her known degenerative disc disease in the lumbar spine.

Dr. Vasudevan, who submitted a report on behalf of the employer dated July 26, 2002, noted the applicant clearly has chronic pain in her cervical area and headaches as a result of cervical disc disease which is work related, and she has some associated depression that has been evaluated and treated. Dr. Vasudevan indicated that as a result of the applicant's work-related condition she has permanent restrictions of lifting up to ten pounds maximum, avoiding excessive neck flexion, extension and rotation, and avoiding overhead activities and activities that involving frequent twisting of her neck. Dr. Vasudevan stated the applicant should frequently change position from sitting to standing every 30 to 45 minutes with preferably some neck rest such as an extender chair. Dr. Vasudevan opined that with these restrictions she should be able to return to full-time work.

Mr. Goldsmith, the applicant's vocational expert, noted the applicant's primary work experience has been as a cashier at a grocery store, but given Dr. Robbins' final restrictions to less than five pounds lifting and 12 hours work per week, with the need for a sit stand option, the employer had no work available for the applicant. Mr. Goldsmith stated the applicant has found a job in a retail store but since it closed in June 2000 she has been out of work. Mr. Goldsmith noted the applicant is approaching retirement age, she is not a high school graduate, and she does not have any advanced training or experience which would help her pursue higher paying sedentary jobs, and she has no office work experience or skills. Mr. Goldsmith opined that the applicant is probably permanently and totally disabled according to the odd lot doctrine of the Worker's Compensation Law, and she has sustained 100 percent of loss of earning capacity as a result of her condition.

Mr. Goldsmith noted the applicant is unable to lift most objects and she is limited to working four hours per day, three days per week, and requires a sit stand option. Mr. Goldsmith stated although the work at The Lamp Shader demonstrated there may be some jobs available to her, there are in fact very few such opportunities and the applicant will have extreme difficulty finding sustainable and continuous employment.

Ms. Panizich, the employer's vocational expert, stated the applicant has transferable skills from her work history including stock checking, merchandising, accounting, recording, accommodating others and healing/caring. Ms. Panizich noted the applicant has worked in retail trade and merchandising and her transferable skills identified a wide variety of options that would be available to her including various cashiering positions, ticket seller, auction clerk, order clerk, food checker, food tabulator, work in a cafeteria, telephone solicitor, and appointment clerk among others. Ms. Panizich stated the restrictions concerning the amount of hours the applicant can work as imposed by Dr. Robbins limited her earning capacity, and taking into consideration the fact the applicant has historically worked only part- time, her reduction in earning capacity falls in the range of 55 to 60 percent. Ms. Panizich also opined that based on Dr. Vasudevan's restrictions the applicant has sustained a reduction in earning capacity in the range of 5 to 10 percent.

In order to establish a claim for permanent total disability on a odd lot basis where non-scheduled industrial injuries are sustained, the crucial factor in establishing permanent total disability is proof of the total and permanent impairment of earning capacity. Balczewski v. DILHR, 76 Wis. 2d 487, 492 (1977). In Balczewski the court stated that where a claimant makes a prima facie case that he has been injured in a work accident, and because of this injury, age, education and capacity, he is unable to secure any continued and gainful employment, the burden of showing the applicant is in fact employable and that jobs do exist for the injured claimant shifts to the employer.

In this case the applicant has presented evidence that she suffered a work-related occupational neck injury and has undergone several cervical fusion surgeries resulting in significant permanent partial disability and restrictions. The applicant is limited to only part-time work, lifting no more than five pounds frequently, working three to four hours per day, 12 hours per week, with significant restrictions in overhead activities and bending her neck. The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony of her ongoing pain and restrictions and ability to work as a result of her work-related occupational neck injury. The administrative law judge indicated he found the applicant to be basically credible in her testimony of her ongoing pain and restrictions. The administrative law judge credited Dr. Robbins' permanent restrictions. The administrative law judge indicated he found Ms. Panizich's report to be persuasive and he believed that the applicant, although limited to part-time work, would be able to find jobs within her restrictions.

The commission does not disagree with the administrative law judge's credibility assessment. The commission credits the applicant's testimony of her ongoing pain and restrictions as a result of her work injury, and the commission also credits Dr. Robbins' permanent restrictions. The commission finds the applicant has established a prima facie case for permanent and total disability on an odd lot basis. Mr. Goldsmith, the applicant's vocational expert, credibly opined that given Dr. Robbins' restrictions, the job market for the applicant is so limited both in quantity and quality that there is no reasonable expectation of genuine employment, and he noted that she is unable to lift most objects, and she is limited to working four hours per day for three days a week and requires a sit and stand option. Mr. Goldsmith also credibly noted that even though the applicant was able to find some part-time work with The Lamp Shader, these types of jobs are rare and he felt she would have extreme difficulty finding sustainable and continuous employment given her age, education and work capacity.

The commission does not find that the employer has refuted the applicant's prima facie case. Ms. Panizich, the employer's vocational expert, did not present evidence that suitable work was regularly and continuously available for the applicant. As the court stated in Balczewski, mere speculative testimony as to employment opportunities will not suffice to satisfy the employer's burden of proof. Ms. Panizich simply conducted a labor market survey based on the applicant's transferable skills and stated that current statistics for the Milwaukee/Racine area found 6,000 receptionist positions, 12,000 information clerk positions, 13,000 telephone operator positions, and 2,000 bank teller positions among others currently in the labor market consistent with the applicant's transferable skills and physical restrictions. However, Ms. Panizich did not find that there were actual vacancies available for the applicant, and employers who were willing to hire her given her specific restrictions. The commission does not find that Ms. Panizich's report meets the requirement of Balczewski to establish that there is a stable labor market currently available for the applicant. Therefore, the commission finds that based on Dr. Robbins' restrictions and the applicant's credible testimony of her ongoing pain and restrictions, and given Mr. Goldsmith's vocational report and the factors contained in DWD § 80.34, Wis. Admin. Code, and given the applicant's age, education, physical restrictions, and prior surgeries, the evidence establishes that the applicant is permanently and totally disabled on an odd lot basis.

The evidence indicates that the applicant was entitled to 60 percent loss of earning capacity from May 1, 1993 to September 12, 2000 based on the medical evidence and Dr. Robbins' restrictions. As of September 13, 2000, the applicant was permanently and totally disabled based on Dr. Robbins' restrictions and Mr. Goldsmith's report. Therefore the applicant is entitled to $46,146.74 in permanent partial disability benefits and $4,857.66 in permanent total disability benefits accrued to September 12, 2003, less attorney's fees of $10,200.88, leaving a total of $40,803.52 due to the applicant. Beginning October 12, 2003, the applicant is due an amount of $126.01 per month for life and the applicant's attorney is entitled to an amount of $25.22 per month until July 15, 2010. The applicant's award is subject to a social security offset and periodic review. The employer and insurer shall also pay unpaid medical bills of $750.00 to Dr. Walter Davison, reimburse the applicant for mileage for treatments with Drs. Robbins and Davison and shall pay any of the applicant's prescriptions for Darvocet, Vicodin, Zoloft, and Trazodone. The Department shall retain jurisdiction for further findings and awards as may be warranted.

NOW THEREFORE THIS

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed and the commission's findings and order substituted therefor. Within 30 days from the date of the commission's order, the employer and its insurer shall pay to the applicant the sum of $40,803.52 and to the applicant's attorney, Thomas Flanagan, the amount of $10,200.88. Beginning on October 12, 2003, the applicant shall be paid an amount of $126.01 per month for life and the applicant's attorney, Mr. Flanagan, is entitled to an amount of $25.22 per month until July 15, 2010.

Dated and mailed September 25, 2003
kadwish . wrr : 175 : 9   ND § 5.31

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


cc: 
Attorney Thomas J. Flanagan
Attorney Jan M. Schroeder


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