PATRICK DELANEY, Applicant

WAUPACA FOUNDRY INC, Employer

EMPLOYERS INSURANCE OF WAUSAU, 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 September 29, 2003
delaney . wsd : 101 : 3  ND § 5.20

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Facts.

Thee applicant was born in 1978. He was a mill room operator for the employer. This job required him to pick up and roll iron castings weighing 15 to 50 pounds to inspect them. He would also grind off excess iron from the castings, using a power grinder/hydraulic system. This required picking up the casting and twisting to move it on the grinder/hydraulic system, then holding it in place. At most, the applicant moved up to 550 castings an hour, or about 4,700 in a night. On average, or maybe at the low end, the applicant estimated he worked with 3,500 castings a night. January 2002 transcript, pages 22-23.

The applicant did other jobs on the employer's production lines. For example, he described another job requiring inspection and using a cup grinder. In another job, he "palletized" the castings which required not only twisting to move castings off the line and on to a pallet, but also occasionally lifting pallets weighing 100 pounds. Another job involves putting castings into "trees." The tree is a kind of rack, with arms at varying heights where one puts the castings. This required reaching and bending with the castings to place them on arms from below waist height and to overhead.

The applicant testified that he hurt his back again on June 18, 2000. Specifically, he experienced back pain on that day while working on the job where he took the castings off the tree. The applicant claims he sustained disability from the injury, and seeks, among other things, permanent partial disability for loss of earning at 60 to 70 percent. The employer and its insurer (collectively, the respondent) contend the applicant in fact was not injured at work, and that he was paid temporary disability benefits under mistake of fact.

One of the applicant's treating doctors, Dr. Van Sistine, opined in an August 29, 2000, treatment note that the applicant injured his back through repetitive activity at work on June 18, 2000. In addition, Dr Van Sistine's January 11, 2001, practitioner's report form lists the event or work exposure to which the applicant attributed his disability as "repetitive twisting with 30-50# castings at work 8-18-00," and states that that directly caused the applicant's disability. See exhibit I. The doctor rated permanent partial disability at five percent for an L4-5 disc protrusion, and persistent pain.

The respondent retained Sridhar Vasudevan, M.D., as its medical expert. Dr. Vasudevan acknowledged that applicant had pre-existing lumbar degenerative disc disease, but did not think that was causing the applicant's complaints. Indeed, the doctor saw no need for any permanent restrictions. He described the applicant's symptoms as "very inconsistent," and concluded the applicant did not suffer an injury on June 18, 2000 that required any medical treatment or work restrictions or resulted in disability.

Both parties have submitted vocational reports as well. The applicant's expert Jeanne Krizan, found the applicant had suffered a 60 to 70 percent loss of earning capacity based on Dr. Van Sistine's restrictions. Exhibit L, report of Van Sistine, page 7. The respondent's expert, Jay R. Smith, concluded the applicant had no loss of earning capacity, even under Dr. Van Sistine's restrictions, as he refused an offer of work within those restrictions without reasonable cause.

2. Discussion.

The ALJ found that the applicant sustained a work-related injury, and awarded loss of earning capacity at 17.5 percent. In his careful and thorough decision, the ALJ explained his finding that work caused the injury. He stated that while he had some reservations about some aspects of the applicant's testimony, he was satisfied that the applicant accurately described the onset of pain with repetitive bending while at work on June 18. The ALJ noted the applicant's testimony that he told foreman John Smith about his symptoms was supported by the nursing report written by company nurse Nasberg at exhibit A, and was unrefuted by the respondent who did not call Smith to testify. The ALJ noted, too, that Mr. Schwietzer, whom the ALJ found to be very credible, testified that the applicant told him he hurt his back at work in the summer while working on line 5.

The ALJ went on to explain that it did not matter whether the applicant could remember exactly which casting he moved when he was injured, citing Briggs & Stratton Corporation v. ILHR Department, 43 Wis. 2d 398, 407 (1969). He noted that this type of injury, from repetitive work on a given day, seems to merge the traditional categories of an accidental event and occupational disease, as anticipated by the court in Shelby Mutual Insurance Company v. DILHR, 109 Wis. 2d 655, 661 (Ct. App., 1982).

On appeal, the respondent argues that the applicant's version of an injury on June 18, 2000, cannot be sustained, as the early medical notes refer to a history of back pain going back to the December 1999 slip and fall, and to a two-week history of pain. The respondent also pointed out that the applicant first testified he noticed the pain while on break on June 18, then testified he noticed it at this work station. The respondent also points out that the applicant testified he told co-worker Schwietzer and foreman Smith "he didn't know what he had done to his back."

The commission agrees with the ALJ regarding causation. The applicant's testimony is consistent with Dr. Mitchell's detailed history taken shortly after the injury. Further, as the ALJ noted, the applicant's testimony about the onset of pain while bending, twisting and lifting at work on June 18 is corroborated by Nasberg's June 21 note and Schwietzer's testimony. Moreover, the ALJ observed the applicant's demeanor as he testified, and he credited his description of his symptoms and their onset on July 18, 2000.

The commission also notes that injuries caused by short-term repetitive strain may not fit neatly into the analytical categories of accident and occupational disease, but that does not mean they are not compensable as a matter of law. See for example, Charles F. Meyers v. Fort James, WC Claim No. 1998002628 (LIRC, December 8, 1999). On this point, the commission notes that "occupational diseases were brought under the compensation act ... 'so as to include, in addition to accidental injuries, all other injuries including occupational diseases, growing out of and incidental to the employment. [Emphasis supplied.]' " Employers Mutual v. McCormick, 195 Wis. 410, 413-14 (1928).

The commission also affirms the ALJ's conclusion that the applicant's injury resulted in permanent partial disability on a functional basis at 1.5 percent compared to disability to the body as a whole, and that the applicant was capable of medium duty work. On this point, it is noteworthy that the MRI shows a disc pathology, albeit not a surgical one. In concluding that effects of the work injury were less limiting than Dr. Van Sistine suggested, the ALJ noted that the therapist who administered the applicant's functional capacity evaluation observed that the applicant limited his performance due to his perceived pain, so that the evaluation "may not show patient's maximal functional abilities but his abilities due to perceived pain." Exhibit D, note of October 21, 2000.

The ALJ went on rate permanent partial disability based on loss of earning capacity at 17.5 percent. The respondent challenges the award of earning capacity, based on the offers of work it made to the applicant after his injury and citing Wis. Stat. § 102.44(6).

Wis. Stat. § 102.44(6)(a) and (g) provide:

102.44 (6) (a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
. . . 
(g) 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.

The department's interpretative footnote provides:

Section 102.44(6) provides that in cases of non-scheduled injury permanent partial disability is to be determined on the basis of the physical limitations without regard to loss of earning capacity where the employee has returned to work for the same employer as at the time of injury at a wage loss of less than 15 percent. A good faith offer of employment refused by the employee without reasonable basis has the same effect as actual reemployment. The claims subject to this section including those upon which an award is issued remain open for the period of the statute of limitations in the event that there is a termination of the employment or a wage loss of 15% or more occurs.

In this case, the ALJ concluded the applicant had reasonable cause to refuse all three job offers, thus avoiding the absolute bar on any loss of earning capacity benefits under Wis. Stat. § 102.44(6). Essentially, he concluded the applicant had good cause to believe that the first core room offer and the painter offer violated his restrictions. The applicant tried the core room job when initially offered, and was not allowed to sit even though Dr. Van Sistine's restrictions required it, and he had to bend and twist more than occasionally. With respect to the second job -- the painter/housekeeping job -- the ALJ credited the applicant's testimony that he spoke with his would-be supervisor in that job who told the applicant the job required bending and twisting and "he doesn't think I'd be good for that type of a job." May 2002 transcript, page 85.

By the time Van Sistine had okayed a return to work under the third offer in June/July 2001, the ALJ concluded the applicant had good cause based on the possibility the employer might violate the work restrictions, as well as the applicant's anticipated employment in his own business venture. However, the ALJ went on to conclude that, while the applicant's refusal of the offers did not bar his claim, they did impact negatively on the amount of loss of earning capacity awarded. His award of loss of earning capacity at 17.5 percent thus took those job offers into account.

On the point of a worker refusing an offer from a time-of-injury employer based on his or her anticipation of working elsewhere, the commission has previously held that the reasonable cause standard under Wis. Stat. § 102.44(6)(g) allows a worker to act in his or her own interest when choosing between competing offers of employment as long as he or she does so reasonably. Drake v. North Star Print Group, WC claim No. 1996032876 (LIRC, October 30, 2002). Under the facts of this case, the ALJ properly concluded the applicant had reasonable cause to refuse the offered jobs. Moreover, the ALJ reasonably considered the refusals a negative factor in assessing the amount of loss of earning capacity due, consistent with Wis. Admin. Code § 80.34(1).

cc: 
Attorney Wayne R. Luck
Attorney Jessica J. Tlusty

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