LORI NIEVES, Applicant

REYNOLDS METAL COMPANY, Employer

PACIFIC EMPLOYERS INS CO, 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. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed November 7, 2003
nievelo.wsd : 185 :   ND § 5.39

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In their petition, respondents argue that Dr. Weiss' opinion is credible and that the applicant's knee symptoms are subjective and incredible.  As noted by the administrative law judge, the applicant's knee was shown in the medical records to have been subject to swelling and popping after the work injury of December 1, 1998, and she had no knee symptoms prior to that date.  She sustained a serious work injury to her knee with permanent consequences on December 1, 1998, and Dr. Springer's opinion is credible.  This includes Dr. Springer's assessment of 8 percent permanent partial disability which is consistent with the applicant's ongoing limitations.  It is the only assessment of permanency on record, except for Dr. Weiss' incredible opinion that there was no permanency.

Respondents argue that the temporary total disability award for the period of March 22, 1999 to May 7, 1999, should be denied because the employer allegedly offered her work within her restrictions during that period.  Dr. Springer wrote restrictions on March 22, 1999, which included 20-pounds lifting, 10-pounds carrying, no kneeling or squatting, and limitation on standing.  The employer responded with a letter to the applicant which stated that these restrictions did not prevent her from performing her normal work duties, and that she was expected to return to work at her next scheduled shift.  The applicant credibly testified that when she received this letter she telephoned the employer and was told that she should call a supervisor for a shift assignment to her regular duties.  She was not offered any accommodations consistent with her physical restrictions, and her regular job duties involved daily lifting of 50-pounds, squatting, and prolonged standing.  The employer's occupational health nurse testified that the employer has a work hardening program that could have accommodated the applicant's restrictions.  However, the nurse admitted on cross-examination that she never spoke to the applicant about work hardening, and that the letter the employer sent to the applicant did not mention work hardening.

Pursuant to Chapter DWD § 80.47 of the Wisconsin Administrative Code, it is the employer's duty to furnish suitable employment to the injured worker that is within the worker's restrictions.  The letter which the employer sent to the applicant merely offered to return her to her normal duties, which clearly would have exceeded her medical restrictions.  Suitable employment was not furnished to the applicant and the award for temporary total disability was appropriately calculated.

Finally, respondents argue that the award for vocational rehabilitation benefits should be set aside.  They argue that the DVR counselor abused his discretion by not determining whether the applicant could have returned to employment with the employer.  However, as noted by the administrative law judge, on October 1, 1998, the DVR adopted a new policy whereby the counselor is not required to attempt to return the injured employee to work with his/her previous employer, or to seek employment with other employers prior to approving a vocational rehabilitation plan.  This was explained in Robert Manske v. Rasch Construction and Engineering and Virginia Surety, WC Claim No. 1998-016330 (LIRC June 24, 2002).  For injuries occurring on or after January 1, 2002, Wis. Stat. § 102.61(1g) provides that offers of suitable employment paying 90% or more of the preinjury average weekly wage do disqualify an employee from receiving Chapter 102 benefits for vocational retraining. But 102.61(g) is not applicable to the applicant's 1998 injury.

Accordingly, the DVR counselor was not required to investigate whether work was available from the employer.  Given the fact that the applicant had been discharged in 1999, it is questionable whether such an inquiry would have been appropriate anyway.

Finally, respondents argue that since Dr. Springer's restrictions were not exactly the same when he gave them at different times, the DVR counselor should have asked Dr. Springer for clarification before settling on the applicant's rehabilitation plan.  Dr. Springer's various statements of restrictions do contain some minor inconsistencies when compared with each other.  However, he has consistently placed the applicant in the light/medium work category with avoidance of prolonged standing, and avoidance of kneeling, squatting, or climbing.  The DVR counselor credibly testified that these were the restrictions he considered in assisting the applicant.  Accordingly, there was no abuse of discretion by the counselor.

cc: 
Attorney Richard E. Ceman
Attorney Scott D. Metz

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

uploaded 2004/03/23