DEDRA EMMONS, Applicant

LAKESIDE MFG INC, Employer

ZURICH AMERICAN INS OF IL, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings of Fact and Interlocutory Order issued on March 29, 2004. Briefs were submitted by both parties. At issue was payment of current medical expenses, vocational retraining and a recommended pain management program.

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

Delete the 10th and 11th sentences in the paragraph which begins at the bottom of page 3 of the administrative law judge's Findings of Fact and ends on the top of page 4 of the administrative law judge's Findings of Fact, and also delete the last two sentences of the first full paragraph on page 4 of the administrative law judge's Findings of Fact and substitute therefor:

The applicant's claim for vocational retraining is held open pending an evaluation by a DVR specialist or by a private rehabilitation counselor at the employer's expense pursuant to Wis. Admin. Code § DWD 80.49 (7).

NOW, THEREFORE, this

Dated and mailed April 22, 2005
emmonde . wpr : 175 : 8  ND § 5.41

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer contends in its petition for commission review the administrative law judge erred in crediting Dr. Robbins' assessment that the applicant's fusion surgery in 1997 was related to her initial work injury in 1994. The commission credits Dr. Robbins' assessment that the applicant's current disk at the L5-S1 level was due to her initial occupational injury in 1994. The administrative law judge appropriately noted that often a fusion surgery follows a laminectomy, and there is no evidence of any other cause for the applicant's need for fusion surgery in 1997. Dr. Soriano reviewed the applicant's medical records on behalf of the employer on January 6, 2004, and attributed the applicant's need for surgery to degenerative disk disease. However, the applicant had a consistent history of back problems following her initial back surgery in 1994. Dr. Wichman also credited Dr. Robbins' assessment and did not reach any independent conclusion that there was any other cause for the applicant's need for fusion surgery other than her occupational back injury.

The employer also contends that the administrative law judge erred in awarding the applicant vocational rehabilitation training benefits. The commission agrees. Under Wis. Stat. § 102.61 an employee is eligible for payment for vocational rehabilitation training if the department, referring to the DVR, determines the employee is eligible to receive those services. Under Wis. Admin. Code § DWD 80.49 if the DVR cannot provide services, an applicant may elect to obtain services from a private certified vocational rehabilitation counselor who is required to develop an individualized written rehabilitation program for the employee. The DVR is required to send the applicant a list of private certified rehabilitation counselors. The applicant admitted that she received the list of private counselors in this case. However, the applicant testified she did not elect to see a private counselor because she could not afford one and no individualized written rehabilitation program was prepared.

Rather, the record reveals the applicant simply underwent an evaluation by vocational experts, Mr. Ginter and Mr. Gross, to determine if she suffered a loss of earning capacity due to her work injury. This type of evaluation takes place in most cases of unscheduled injuries. This loss of earning capacity evaluation did not substitute for or meet the requirements for an individualized written rehabilitation plan under Wis. Admin. Code § DWD 80.49. Although Mr. Ginter appears to be a certified private rehabilitation counselor he did not see the applicant to evaluate her for vocational retraining as envisioned under Wis. Admin. Code § DWD 80.49. Therefore, his report does not substitute for an individualized written rehabilitation plan. Although Mr. Ginter and Mr. Gross found that the applicant was a suitable prospect for retraining, and that it would lessen her loss of earning capacity, the applicant did not follow the steps required under DWD 80.49 to qualify for vocational retraining benefits.

Therefore, the commission reverses the administrative law judge's findings that the applicant was eligible for vocational rehabilitation training. However, it is also clear under sec 80.49 that in this circumstance, upon remand, the employer should be directed to pay the applicant the needed amount for services of a private certified rehabilitation counselor. Under Wis. Admin. Code § 80.49(7) if it is determined the DVR cannot serve an eligible employee, the department shall mail to the employee and the self-insured employer a list of certified specialists serving the area. The applicant admitted to Mr. Gross that she had received a list of private rehabilitation counselors. Under 80.49(7)(b) the self-insured employer or insurance carrier is liable for the reasonable and necessary cost of the private specialist's services and the reasonable costs of the training program recommended by the specialist provided that the employee and the specialist substantially comply with the requirements under sec. 80.49. Therefore, the applicant is eligible to be seen by a certified private rehabilitation counselor and the employer and its insurer are directed to make payments for such services. Once the applicant has been evaluated, if an individualized written retraining plan is prepared and the applicant is found to be a suitable candidate for retraining under the act, the applicant would be eligible for retraining benefits pursuant to Wis. Stat. sec.102.61.

cc:
Attorney Robert T. Ward
Attorney Stanley J. Lowe

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