BRETT M DAVIS, Applicant
MILLS FLEET FARM, Employer
HARTFORD ACCIDENT & INDEMNITY, 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 modifications:
1. Delete the last sentence of the second paragraph on page 4 of the ALJ's decision and substitute:
"The current claim for additional functional permanency and loss of earning capacity shall be dismissed."
2. Delete the third paragraph of the ALJ's decision and substitute:
"This order shall be left interlocutory to allow the applicant to bring a claim for permanent disability on a vocational basis if he becomes unable to maintain clean air employment. Further, the nature of the applicant's respiratory condition meets the minimal burden of retaining jurisdiction on the possibility of additional functional disability in the future.(1) With respect to the unpaid bills, respondent Mills and its insurer are responsible for the payment of reasonable and necessary medical expenses. This order shall thus be left interlocutory with respect to future medical expense as well."
3. Delete the first paragraph of the ALJ's Interlocutory Order and substitute:
"The claim for additional functional permanency and loss of earning capacity is dismissed."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed February 3, 2005
davisbr . wmd : 101 : 1 ND § 5.20 §
5.29
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Posture.
The applicant was born in 1963, and began working for the employer in 1991. He installed car tires sold by the employer. In 1994, ALJ Joseph Schaeve found the applicant sustained an injury to his respiratory tract from extended exposure to a chemical compound, Permaseal, at work. The diagnosis was reactive airways dysfunction syndrome or (RADS). The commission affirmed, by order dated February 8, 1995.
The extent of permanent disability was litigated next, before ALJ Roberta Arnold, later in 1995. The applicant's treating doctor, Oulette, rated functional permanent partial disability at 30 percent while the employer-retained doctor Schlueter rated no permanent partial disability. ALJ Arnold awarded permanent partial disability on a functional basis at 30 percent compared to disability to the body as a whole, but reserved jurisdiction for a possible vocational rehabilitation claim and loss of earning capacity claim. The commission affirmed this order, too, on April 3, 1996.
In 2003, ALJ Cathy Lake heard the applicant's claim for increased permanent partial disability on a functional basis and for loss of earning capacity. Specifically, the applicant sought permanent total disability on an odd lot basis, or at least an increase in permanent partial disability on a functional basis to 60 percent per his doctor's most recent opinion. ALJ Lake denied the claim for additional permanent disability compensation, both for permanent total disability and for increased functional permanent partial disability. It is this decision that is now before the commission.
In dismissing the applicant's claim for additional permanent disability with prejudice, the ALJ stated she was not persuaded by his testimony that he cannot work or that he was as disabled as he said. On this point, the ALJ noted that the applicant was able to frequent pool halls, bars, and Eagles Club meetings. The ALJ also credited Mr. Metzler's opinion that the applicant did not try hard enough to obtain vocational retraining.
On appeal, the applicant asserts that after the recent decision in Beecher v.
LIRC, (2) he is not required to establish a work search to make his
prima facie case, and that in any event the record shows he tried to work with several employers after his injury. The applicant asserts that his ability to go to pool halls and bars should not be held against him, as the law does not require he be a hermit to obtain perm total disability and such recreational activity does not prove he can work competitively. Finally, the applicant points out that even Dr. Brown, the medical expert retained by the employer, states that the applicant would require placement in a "work setting where he would not be exposed to provocative chemicals or fumes and where there would be flexibility to take time off in the event of an acute exacerbation of his lung disease." The applicant then points out that while the employer's expert Mr. Metzler took into account the restriction to a clear air environment, he did not account for the "flexibility to take time off work in the event of an acute exacerbation."
2. Discussion.
a. Oulette's revised 60 percent "functional" rating.
The commission credits Dr. Brown's opinion that the rating for permanent partial disability should be limited to 30 percent. As the ALJ pointed out, while the applicant complains of symptoms so disabling he cannot attend school because of his concern about exposure to respiratory infection, he admits going to pool halls and bars. Further, much of the applicant's post-injury employment has been in jobs with exposure that exacerbate his condition -- auto mechanic work, work in damp areas building pools, and work with moldy tires. The facts that he kept returning to this type of employment rather then "clean air" work and that he is able to frequent pool halls and taverns for recreation, leads the commission to question whether the applicant is actually as prone to exacerbation, respiratory infection, and loss of work time due to his injury as he claims and Dr. Oulette believes.
Beyond that Dr. Oulette's opinion that the applicant has a 60 percent permanent partial disability does not appear to be a functional rating, but rather the doctor's
opinion about the extent of permanent disability on a vocational basis. Specifically, Dr. Oulette stated:
This man is 60% disabled based on the type of work he has been trained to do -- He is unable to sustain gainful employment in the environment that he has to work.
However, Dr. Oulette is a medical expert, not a vocational expert.(3)
b. Lynch's permanent total disability opinion
The applicant's vocational expert, Ross K. Lynch, suggested that the applicant could be viewed as permanently and totally disabled. Dr. Lynch makes this suggestion based on the long-time restriction that the applicant must work in a "clean air" environment coupled with the assumption the applicant will miss a lot of work time due to exacerbations of his condition.
On the one hand, the medical experts, both treating doctor Oulette and employer's expert Brown, agree the applicant must work in a clean air environment. Further, even employer's medical expert Brown acknowledges the applicant would need to work "where there would be flexibility to take time off in the event of an acute exacerbation of his lung disease." The applicant contends that the respondent's vocational expert, Mr. Metzler, does not take into account the vocational effect of the restriction to employment that allows the applicant to take time off work because of his condition. However, the applicant's own expert, Dr. Lynch, does not definitely state what the effect of that restriction is either. Rather, Dr. Lynch rated a 45 percent loss of earning capacity based on the assumption the applicant could sustain employment in the "clean air" occupations he listed. He then stated that assumption "may" be invalid "as Mr. Davis has had significant difficulty in remaining illness-free over the years since his exposure to chemicals during the course of his employment."
Again, the applicant has not really tried "clean air" employment. He quit the vocational retraining that would have provided him with the training to secure such employment, and the ALJ who observed him testify was not convinced the applicant left school because of his respiratory condition. On this record, the commission is left with doubt as to whether the applicant is as prone to respiratory infection from a clean air environment as he represents.
This case differs from the question of efforts to find work as it arose in Beecher. There, the commission rejected a vocational expert's perm total opinion because it did not think the applicant had tried hard enough to find work. This case -- in contrast -- raises the question of whether there is medical support for the proposition that the applicant's condition will be so chronically symptomatic that he cannot work regularly which underlies Dr. Lynch's conditional opinion regarding permanent total disability.
Dr. Brown only opined that the applicant would need flexibility to take time off work if he has exacerbations; this is not the same as an opinion from a doctor that he is sick so often he cannot work regularly. Dr. Oulette indicates only that he cannot do the work for which he was previously trained -- i.e., auto mechanic. The commission is not certain that the facts of this case allow a vocational expert to credibly opine to a requisite degree of vocational certainty that the applicant is unemployable while working in the "clean air" jobs that both vocational experts indicate are suitable for him. In any event, the commission reads Dr. Lynch's vocational opinion to suggest only a possibility of permanent total disability, not prove that the applicant is probably permanently total disabled.
c. Lynch's 45 percent LOEC opinion
The commission declines also to award loss of earning capacity at 45 percent as rated by Dr. Lynch. Mr. Metzler's lower rating (4) is justified, based on the applicant's unwillingness to undergo suitable vocational retraining and the applicant's apparent lack of effort to find suitable clean air employment. These are both factors that must be considered in determining the extent of the loss of earning capacity under Wis. Admin. Code § DWD 80.34(1) (at least once the commission is past the question of the prima facie case for odd lot unemployability (5).) Finally, the commission concurs in ALJ Lake's credibility impression that the applicant's symptoms are not as disabling as he contends.
d. Final or interlocutory order
The last question--though the applicant does not raise this (6) -- is whether to leave the order interlocutory to permit a future increased permanent disability if the applicant's condition worsens. The commission has modified the ALJ's order to leave it interlocutory, for the reason explained in the text added by amendment.
cc:
Attorney Douglas J. Phebus
Attorney Keith Kostecke
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