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

LARRY DALTON, Applicant

PARTRIDGE RIVER SUPERIOR, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-005008


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.

ORDER

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

Dated and mailed June 30, 2004
daltonl . wsd : 101 : 1  ND § 3.6  § 5.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The applicant was born in 1962. Prior to beginning work with the named employer, he began working for another employer, Woodcraft, in 1980, and was a supervisor for 15 years. In late 1998, he began working for the named employer, another woodworking company that makes products like kitchen cabinets. On January 1, 1999 he became the named employer's "co-plant manager," answering directly to the employer's owner. At issue in this case is whether the applicant sustained injury arising out of his employment with the employer while performing services growing out of and incidental to that employment, and the nature and extent of disability any such injury caused.

The plant which the applicant co-managed was new. Only two or three of the 100 or so workers had industrial woodworking experiencing. As a result, the applicant routinely worked 16 hour days, arriving at 1:30 or 2:00 a.m., then working until 5:00 p.m. (This testimony is corroborated by that of Dan Popp, the plant manager of another plant owned by the employer, who worked very similar hours.) The applicant also did a lot of hands-on machine operation, which was necessary to meet the expectations and demands of the employer's owner.

The applicant testified he injured himself at work on Friday, November 10, 2000, while operating a machine called a double-ended tenoner, a machine which cut product for running through the other woodworking machines. This required loading wood from a pallet into the machine.

At the time of his injury the applicant was working with maple, 1 inch thick, by 6« inches wide, by 100 inches long. The applicant testified he would pick up two or three boards at time to feed through the machine, trying to run 8 to 12 boards through a minute. The report of the employer's doctor states the wood he lifted weighed 75 pounds (given that he lifted 2 boards sometimes and 3 other times, maybe 50 to 75 pounds is a better estimate.) The applicant would get wood from a pallet behind him, lift it, then twist to put the wood chest high on the machine. As the wood was stacked on a pallet, he might have to bend considerably to reach the wood as he neared the end of a pallet. The applicant described the task as involving a lot of bending, twisting, lifting, and extending.

The applicant testified he was two-thirds of the way through a pallet, having done 100 to 120 boards, when he experienced pain shooting down his arms and into his hands, causing them to tingle and go numb briefly. He stopped for a while, but then continued work, surmising he had a pulled muscle or "pinched nerve." He did mention the injury to a supervisor -- who presumably was subordinate given the applicant's role as plant manager -- but neither man thought much of the injury. The pain continued, though he did not seek treatment until January 2001. He subsequently has undergone two surgeries to the cervical spine.

The ALJ found the applicant sustained a compensable injury from his employment, and that he is permanently and totally disabled. She discredited the opinion of the employer's examining doctor, Cederberg, as she felt it was based on the inaccurate assumptions that the applicant did not do much in the way of physical work and that he did not report the injury. She noted the boards he was working on when injured were heavy (even Dr. Cederberg noted they weighed 75 pounds); that he credibly testified he reported the injury albeit to a subordinate; and that the applicant had an unusually good work ethic.

The employer and its insurer appeal, arguing:

1. There was no work injury on November 10, 2000 because--

-- the applicant did not seek immediate medical attention or report the injury. On this point the employer suggests the applicant's testimony that he reported the injury to a subordinate coworker is incredible, noting that he continued to work for weeks before reporting the injury to Ms. Prinkkila in early January and beginning treatment after returning from Disney World. The employer also notes intervening medical treatment on November 13, 2000 when the applicant did not mention the work injury.

-- Dr. Cederberg credibly opined the work he was doing did not cause the accident based on his review of the videotape, and the fact--asserted by the employer's attorney--that lifting would strain the back, arms and legs, but not the neck.

2. Even if there was a work injury, the applicant is not permanently totally disabled based on job offers by the employer.

The gap in treatment and a formal report of injury would perhaps seem suspicious under other circumstances. However, in this case, the applicant was at the time of injury the employer's plant manager and had been working 16-hour days for several months. He is a career-long factory supervisor who relocated and obtained a substantial salary increase to work for the employer. It seems quite reasonable that he would not immediately stop working and seek treatment for his symptoms. Moreover, the notes for his initial medical treatment in January 2001 put the injury back in November 2000. The commission adopts the ALJ's reasonable credibility impression that the applicant was not lying about when and how his symptoms started.

Further, the ALJ reasonably questions Dr. Cederberg's belief that the work was not heavy, given that it is based on videotape that is showing a worker going half as fast as the applicant worked and that Dr. Cederberg admitted the work involved repetitively moving 75 pounds of lumber into the machine. While Dr. Cederberg opined the work duties did not involve a lot of stress to the neck, the commission cannot -- based on the work activity as described at the hearing and in the medical reports -- credit that opinion.

Regarding the job offers, the commission cannot conclude the employer made them in good faith, and concludes that in any event the applicant had reasonable cause to reject them. Wisconsin Stat. § 102.44(6)(g). The commission is unpersuaded that the employer acted in good faith by offering the applicant, a former plant manager whom it had apparently demoted once, (1)   to remain employed in a subordinate position, much less at a wage for the subordinate position that was significantly inflated to reach the 85 percent level under Wis. Stat. § 102.44(6)(a).

Further, the applicant takes significant amounts of medication, including pain medication, and is subject to a significant work restriction which the employer's own expert opines renders him permanently and totally disabled absent a college degree. None of the doctors have specifically said he could do the jobs as offered; rather, Dr. Harrison said the applicant is not employable. Mr. Sondrol may have testified he expected the supervisors to perform little or no physical work, but that had not been the applicant's experience with the employer. Given the competitive nature of the employer's business -- which directly affected the applicant in terms of his long work hours and the two demotions the employer sought to impose upon him -- the applicant could reasonably conclude he would not be able to perform the job regardless of whether the offers were made in good faith. The commission concludes therefore, that the job offers neither bar his claim under Wis. Stat. § 102.44(6), nor suggest he is not permanently and totally disabled on a vocational basis.

The commission did consider the applicant's efforts toward a college education, which employer's expert Smith suggested could ultimately reduce or eliminate the applicant's loss of earning capacity. However, on this record, denying or even delaying an award for permanent total disability on that basis is too speculative.


cc:
Attorney Daniel D. Hannula
Attorney James O. Moermond


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Footnotes:

(1)( Back ) By the time of the applicant's discharge, Mr. Sondrol was plant manager instead of the applicant. Further, the record indicates the applicant was being paid less ($60,500) when discharged than he had been making ($62,500) when injured.

 


uploaded 2004/07/02