DIANE KELLY, Applicant

MARINER POST ACUTE NETWORK, Employer

AMERICAN HOME ASSURANCE 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, except that it makes the following modification:

Delete the first sentence in the fifth paragraph beginning on page 4 of the ALJ's decision, and substitute:

"Accordingly, retraining benefits for coursework leading to a BSN degree are appropriate from March 2002 and thereafter, even beyond the eighty week limit in Wis. Stat. § 102.43(5), subject to periodic review and reevaluation as provided for in that section.".

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed May 27, 2004
kellydi . wmd : 101 : 9  ND § 5.40

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant worked as a nursing supervisor, as well as a hands-on registered nurse, at a long term care unit. She started as a nursing assistant, became an LPN, then got an RN through an associate degree program. She hurt her right wrist in a lifting injury on October 16, 2000.

This case involves the issues of the length of temporary disability, the amount of functional permanent partial disability, and vocational retraining benefits. The ALJ decided all these issues for the applicant. The employer and its insurer (collectively, the respondent) appeal.

a. TTD

The ALJ awarded temporary disability from December 13, 2001 to March 29, 2002, the date the applicant's treating doctor, Dr. Konkol, set the final work restrictions and issued his permanent disability rating. See exhibit A. The respondent contests this, noting that in a visit on November 30, 2001 -- or just before the December 13, 2001 healing date set by its examiner, Dr. Hussussian -- Dr. Konkol had described the applicant's clinical picture as "unchanged." Further, the employer points out that the applicant saw Dr. Konkol only once between the December 13, 2001 date set by Dr. Hussussian and the March 29, 2002 end-of- healing date set by Dr. Konkol.

However, in that visit on January 4, 2002, Dr. Konkol explained he wanted to wait a year out from the ganglion cyst surgery to declare an end of healing. He stated, too, that while her surgical scar was basically healed:

"some tenderness is present but that will gradually resolve as the sympathetic dystrophy resolves"

which clearly indicates the doctor expected further improvement. In addition, Dr. Konkol noted a slightly limited range of motion in the right wrist on January 4, 2002, which ties in with Dr. Hussussian's notation of minimal limitation on wrist motion on December 13, 2001. However, Dr. Konkol later described the range of motion in the wrist as "excellent" in his March 29, 2002 report, indicating improvement (though as described below he noted other elements of disability) See exhibit C.

Given the expectation of improvement in tenderness, and the documented improvement in wrist motion, the commission is satisfied that the applicant did not reach an end of healing until March 29, 2002.

2. PPD.

The next question is how much permanent partial disability the applicant has: two percent compared to amputation at the wrist rated by Dr. Hussussian, or twenty percent at the wrist as rated by Dr. Konkol. The extent of permanent disability from the work injury, in the commission's view, depends upon whose diagnosis is more credible.

Dr. Hussussian diagnoses only minor residual disability following a not wholly successful surgery for a slight limitation of range of motion in the wrist. Dr. Konkol, on the other hand, sees a more serious condition, reflex sympathetic dystrophy, following the ganglion cyst surgery, and cites continuing pain in the biceps and elbow, ratcheting weakness in the tricep at the elbow, and ratcheting wrist strength. See exhibit C, note of March 29, 2002. His March 29, 2002 note also describes the overall symptomology as unchanged, thus incorporating numbness in the fingers noted in the January 2002 report. He thus rated permanent partial disability at 20 percent at the wrist for "dysfunctional use of the hand and chronic pain and discomfort in the arm."

At the hearing, the applicant testified she currently experiences pain in her right wrist every day, that starts as an aching pain, and progresses as it sweats and burns. At its worst, the pain is throbbing, stabbing and radiating to the armpit. Any movement of the hand aggravates her pain. The nerves in the hand tingle, and she has no feeling in the fingertips.

The ALJ, who saw the applicant as she testified, believed her complaints. They are documented in the medical records, particularly those of Dr. Konkol. Even Dr. Hussussian noted at least some of them in his report, though he did not rate disability for the pain and neurological complaints because they could not be attributed to a pathology documented in EMG testing.

On this record, the commission affirms the ALJ's award of permanent partial disability at twenty percent compared to loss at the wrist. The fact that the objective testing, including the EMG and other tests, cannot pinpoint a neurological or orthropedic source for the applicant's continuing pain and finger numbness does not mean she has none. The record contains no evidence of actual malingering or symptom magnification. The applicant's complaints have been consistent. She has undergone considerable treatment, including injections, to treat her complaints.

c. Vocational Rehabilitation

This leaves the vocational retraining or rehabilitation claim.

Under Wis. Stat. § § 102.43(5) and 102.61(1), if a worker is entitled to receive and has received workers compensation, and is entitled to receive and is receiving instruction under the federal vocational rehabilitation laws, he is eligible for certain expenses as well as weekly payments at the temporary total disability rate. Under Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957), the authority of the commission and the workers compensation division in such cases is limited, at least once it is determined that the applicant has a compensable injury and that DVR has certified the worker for retraining.

Specifically, the supreme court has noted the narrow scope of review of the commission (or its predecessor agency, the Industrial Commission) under Wis. Stat. § 102.61(1). The court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR, and that the Industrial Commission had no power to review the acts of the DVR- predecessor. The court held that the Industrial Commission must find that an injured worker receiving retraining authorized by the DVR-predecessor is entitled to it, unless the commission concluded that (a) highly material facts were withheld or misrepresented to the DVR-predecessor or (b) the DVR-predecessor's interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power. Massachusetts Bonding, at 275 Wis. 512.

However, the limits on department or commission authority under Massachusetts Bonding apply only to the first eighty weeks of vocational retraining benefits under Wis. Stat. § 102.43 (5). Specifically, benefits under Wis. Stat. § 102.43(5) end after 80 weeks, unless the commission or department finds that additional retraining is warranted. In other words, the commission or department may terminate benefits under Wis. Stat. § 102.43(5) after the first 80 weeks of retraining, even if DVR has authorized a longer program, if the department or commission finds the extended retraining is unwarranted.

In this case, there is no allegation of misrepresentation or withholding of material facts. Rather, the employer focuses on two points: (a) that retraining with a BSN enhances the applicant's earning capacity instead of restoring it, and (b) the recommendation of Ms. Demmon -- the counselor to whom DVR itself referred the applicant -- that the applicant get a business degree indicates an abuse of administrative power by approving her for a nursing degree.

However, the commission cannot conclude that DVR abused its administrative authority. The applicable standard is that the DVR's "interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power." That has not been shown here.

First, the language about only restoring, rather than enhancing, earning capacity and potential comes from Wis. Admin. Code § DWD 80.49(1), which of course is a workers compensation regulation. It is not one of the "vocational rehabilitation laws" referred to in Massachusetts Bonding -- which presumably are the federal statutes listed in Wis. Stat. § 102.61 -- that DVR administers. In fact, Wis. Admin. Code § DWD 80.49(3) seems to acknowledge that at least 80 weeks of compensation under Wis. Stat. § 102.43(5) is appropriate even when the primary purpose of the retraining authorized by DVR it to improve upon, rather than restore, pre-injury earning capacity. The employer identifies no specific vocational rehabilitation law or laws that DVR has unreasonably interpreted.

Second, of course, even the DWD rules for worker's compensation are considered "vocational rehabilitation laws", they refer to "restoring . . . a worker's preinjury earning capacity and potential." Wisconsin Admin. Code § DWD 80.49(1) does not limit retraining to restoring the pre-injury wage.  Indeed, the court has previously recognized that in some instances appropriate retraining can include a four-year college degree program. (1)

Nor, really, is Ms. Demmon's report some kind of indicator of abuse of administrative power. She did not say the BSN degree coursework at Marion College was not reasonable. Indeed, her report could be read to indicate the applicant might want to consider two baccalaureate degrees, one in nursing and one in business administration. Certainly, that is a reasonable assumption from Demmon's reference to the applicant's option of working toward a master of arts degree in counseling from the University of Wisconsin-Milwaukee. The commission believes it unlikely that UWM would allow the applicant to obtain a master of arts degree with only an associate's degree from a technical college, and reads Ms. Demmon's report to suggest more university education rather than less.

There is, of course, Mr. Campbell's vocational report obtained by the employer, which opines that only coursework for an associate degree in business is warranted. This perhaps suggests a reasonable basis for a different program than the one authorized by DVR. It does not, however, establish an abuse of administrative authority.

The commission nonetheless has the authority under Wis. Stat. § 102.43(5) and Wis. Admin. Code § 80.49(3) to limit retraining to 80 weeks even in the absence of abuse of administrative power by DVR. The applicant's BSN plan is reasonable; further, the 96-week duration that Mr. Campbell suggests is not that much more than the 80 week cut-off under Wis. Stat. § 102.43(5). Further, while the BSN might result in higher wages on average, one must keep in mind that the applicant will have not only the BSN, but the permanent work restrictions, which could affect her employment opportunities and/or her ultimate pay. In short, the commission cannot conclude the primary purpose of the applicant's retraining is to improve upon, rather than restore, her earning capacity.

The ALJ, of course, ordered the payment of vocational rehabilitation until the applicant successfully completes her BSN program, essentially issuing a final order on this point. However, Wis. Stat. § 102.43(5) provides that the necessity for additional training beyond 80 weeks as authorized by the department for any employee shall be subject to periodic review and reevaluation. Accordingly, the commission has modified the ALJ's order to permit such review and reevaluation.

cc: 
Attorney Patrick R. Griffin
Attorney Michael C. Frohman

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(1)( Back ) In Beloit Corporation v. LIRC, 152 Wis. 2d 579, 590 (Ct. App. 1989), the court approved the commission's finding that virtually any retraining will result in some increase in earning capacity. The Beloit Corp. case dealt with DVR vocational rehabilitation training that sent a young laborer to college to become an engineer. The court concluded that while training increased the injured worker's earning capacity, that did not make it unreasonable. The court specifically noted that vocational retraining is undertaken to restore earning potential, as well as earning capacity. Beloit Corp., at 591. The court approved of the commission's finding that the purpose of the training was to use his ambition, intellect and remaining natural assets to restore his pre-injury capacity. It affirmed LIRC's finding of vocational rehabilitation benefits beyond 40 weeks. The commission reached a similar result in Marcia Hellmer v. Sheboygan County Comprehensive Health Center, WC claim no. 88-041428 (LIRC, April 7, 1992) (holding that instead of looking solely at the effect on the applicant's earning potential the commission looks to see if the primary purpose of the retraining program is to restore earning capacity or improve upon it.) See also Julie Galston v. Oshkosh B'Gosh, WC claim no. 91026029 (LIRC, January 24, 1996.)

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