GENE ESSELMAN, Applicant

MICHAEL J'S CAR CARE, Employer

RURAL MUTUAL INS CO, Insurer

Michael J's Car Care and Rural Mutual Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 9, 2003. Briefs were submitted by the parties. A compensable low back injury was conceded as having occurred on November 2, 1999. Certain temporary total disability and permanent partial disability compensation was also conceded and paid. Additional temporary total disability and liability for a proposed fusion surgery were at issue before the administrative law judge; however, at this point respondents have conceded liability for the additional period of temporary total disability and for the proposed fusion surgery. The sole basis for respondents' petition is their objection to the use of the escalated rate for temporary total disability, as set forth in Wis. Stat. § 102.43(7)(a).

The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

The applicant was employed as an auto mechanic for the employer when he injured his back lifting an 80-lb. tire on November 2, 1999. He continued working and sought chiropractic care from Dr. B. K. Platta, who eventually referred him to Dr. Richard Karr, an orthopedic surgeon. At that time, the applicant had symptoms of low back pain radiating into his left leg. An MRI performed on February 18, 2000, revealed a disk protrusion at L4-5. The applicant stopped working and began receiving temporary total disability as of February 28, 2000. On May 23, 2000, Dr. Karr performed a bilateral laminectomy/diskectomy at L4-5. After the surgery, the applicant experienced only brief improvement of his symptoms. He participated in a pain rehabilitation program under the direction of Dr. Sridhar Vasudevan, but this was unsuccessful in relieving his persistent low back and left leg symptoms. On February 6, 2002, the applicant returned to Dr. Karr with ongoing symptoms, and Dr. Karr assessed permanent restrictions.

The applicant has been unable to return to work for the employer since February 28, 2000, and has not found other employment. He reached a healing plateau and temporary total disability (TTD) ceased as of November 15, 2000. TTD was paid again for a period of vocational retraining between January 20, 2001 and April 29, 2001.

On February 25, 2002, the applicant treated with Dr. James E. Stoll. From his review of the MRI studies, Dr. Stoll opined that at the time of the May 2000 surgery the applicant's L5-S1 interspace was completely collapsed. He recommended surgery and referred the applicant to Dr. Dennis Maiman for surgical consultation. Dr. Maiman recommended a surgical fusion.

The administrative law judge (ALJ) accepted the opinions of Drs. Stoll and Maiman, which included a renewed period of TTD beginning February 25, 2002, and continuing through the date of hearing. The most recent period of TTD had ended on April 29, 2001. The ALJ also ordered prospective payment for the surgery.

Respondents have conceded the additional TTD and prospective liability for surgery. Their sole issue on appeal is the fact that the ALJ's order used the accelerated rate for TTD, pursuant to Wis. Stat. § 102.43(7)(a) and (c) which provide:

"(7)(a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in par. (c).

"(c)1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.

"2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employee's actual rate at the time of injury bore to the maximum rate in effect at that time.

Respondents argue that the accelerated rate does not apply because the applicant never "returned to work" between periods of TTD. He continued working after the injury until February 28, 2000, and never returned. As indicated in John D. Neal and Joseph Danas, Jr., Worker's Compensation Handbook § 5.11 (5th ed. 2003), to receive the escalated rate under 102.43(7), the applicant ". . . must have returned to work for at least ten days between the periods of disability." The applicant argues that the work he performed between the date of injury and February 28, 2000, constituted a period "preceding the renewed period of disability," and thus he qualifies for the escalated rate.

Interpreting Wis. Stat. § 102.43(7)(a) as the applicant urges would render the phrase "returned to work" superfluous. (1)  The applicant never stopped working until his first period of TTD began on February 28, 2000. There was no return to work subsequent to that date. While an equitable argument might be advanced for escalating the applicant's TTD rate in his circumstances, the Act is statutory and requires a return to work of at least ten days between periods of TTD. (2) That simply has not occurred in this case.

The applicant additionally argues that the requirement of returning to work for ten days between periods of TTD is effectively waived in his circumstance, because he received TTD during his period of rehabilitation training from January 20, 2001 to April 29, 2001. In making this argument the applicant points to Wis. Stat. § 102.43(7)(b), which provides:

"(7)(b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under sub. (5) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in par. (c)."

This subsection waives the 10-day-return-to-work requirement only for TTD received during periods of rehabilitative training. The applicant constructs an equitable argument to the effect that since the subsection waived the return-to-work requirement for his period of retraining, the "spirit" of the subsection should carry over and waive the requirement for any renewed period of TTD occurring after the retraining. There is no support in the statutes for this equitable argument.

Wisconsin Stat. § 102.43(7)(a) is designed to allow an escalated rate of TTD for those individuals who sustain a period of TTD long after the date of injury, but only if there has been a healing of sufficient magnitude to have allowed a temporary (10-day) return to work. The unmistakable purpose of the statute is to allow for an updating of the disability rate, but only in limited circumstances. As with all of the provisions of the Act, the statute reflects compromise between the opposing interests of employers and employees. (3) The return-to-work requirement provides a reasonable statutory standard consistent with the purpose of the statute, and unfortunately for the applicant his circumstances do not meet that standard.

The medical opinions of Dr. Stoll and Dr. Maiman are found credible. The fusion surgery from L4 to S1 recommended by Dr. Maiman is prospectively determined to be a compensable consequence of the work injury of November 2, 1999. The applicant has been temporarily totally disabled from February 25, 2002 (inclusive) through the date of hearing on February 17, 2003. This is a period of 51 weeks and one day at the applicable of $400 per week, for a total of $20,466.67.

Because further treatment is indicated, and because the applicant's temporary disability was continuing as of the date of hearing, jurisdiction will be reserved with respect to additional disability and medical expense.

NOW, THEREFORE, this

The Findings and Interlocutory 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 compensation for temporary total disability in the amount of Sixteen thousand one hundred nineteen dollars and sixty-six cents ($16,119.66); and to applicant's attorney, Mark McGillis, fees in the amount of Four thousand ninety-three dollars and thirty-three cents ($4,093.33), and costs in the amount of Two hundred fifty-three dollars and sixty-eight cents ($253.68).

In addition, respondents are prospectively ordered to pay all medical expense and disability attributable to the L4-S1 fusion surgery recommended by Dr. Maiman, assuming the applicant undergoes such surgery.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 22, 2004
esselge . wrr : 185 : 2 ND § 5.11

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The only part of the administrative law judge's decision which was reversed was his use of the escalated TTD rate to compute the additional TTD award. The administrative law judge indicated to the commission that he had not intended to use the escalated rate, but the department performed the compensation calculations for him, and in doing so inadvertently used the escalated rate. He overlooked that fact when drafting his order. Neither he nor the department would have intentionally calculated the applicant's TTD using the escalated rate, had they taken note of the fact that the applicant had not returned to work between his periods of temporary disability.

cc: 
Attorney Mark P. McGillis
Attorney Mark W. Andrews

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(1)( Back ) A basic rule in construing statutes is to avoid construction which would result in any portion of the statute being superfluous. Gaertner v. Holcka, 219 Wis. 2d 436, 451, 580 N.W.2d 271 (1998); Milwaukee Metropolitan Sewage District v. DNR, 126 Wis. 2d 63, 70, 375 N.W.2d 648 (1985).

(2)( Back ) In worker's compensation, neither the commission nor the courts have the authority to impose an equitable solution in contravention of the applicable statutes. Yunker v. LIRC, 115 Wis. 2d 525, 531, 341 N.W.2d 703 (Ct. App. 1983); Southside Roofing and Material Co. v. Industrial Comm., 252 Wis. 403, 409, 31 N.W. 577 (1948); Employers Mutual Liability Insurance Co. v. Industrial Comm., 230 Wis. 374, 376, 284 N.W. 40 (1939).

(3)( Back ) See Melzer v. Cooper Industries, Inc., 177 Wis. 2d 609, 614, 503 N.W.2d 291 (Ct. App. 1993). 

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