JOHN SAGER, Applicant
KOHLER CORPORATION, Employer
KOHLER CORPORATION, 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed April 22, 2005
sagerjo . wsd : 101 : 1 ND § 5.23
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The self-insured employer (Kohler) conceded that the applicant injured his neck and shoulder in 1997, and five percent PPD rated by the applicant's doctor. Further, Kohler does not dispute the work restrictions set by the applicant's doctor: no repetitive neck turning, forward bending, or backward bending; no persistent neck forward bending or turning, and no repetitive work at or above shoulder level. At issue is the applicant's claim for additional PPD on a vocational basis based on those restrictions.
Following his injury, the applicant was able to return to his pre-injury job, at at least his pre-injury rate of pay, with Kohler. Indeed, he was promoted by Kohler to a supervisory job which paid more. However, Kohler fired the applicant from the supervisory job because of a timecard dispute. The applicant subsequently found re-employment elsewhere in various jobs, some of which paid more than he was making when injured with Kohler.
Regarding his separation from Kohler, the applicant testified the timecard problem was an inadvertent error, occurring on one occasion. The applicant is salaried, and the hearing record does not contain evidence establishing if or how the misreporting affected his pay -- though Kohler asserts in its brief that it did (as the applicant was paid overtime). The applicant testified he explained to the Kohler's representative that the error was inadvertent -- and that it might have just been a matter of marking time on the wrong day -- but Kohler was not interested in excuses. According to the applicant, Kohler's representative told him he could quit or be fired, and he quit. Kohler offered no countering testimony.
The ALJ awarded loss of earning capacity at 15 percent based on the applicant's vocational expert. Kohler appeals, contending the commission should deny loss of earning capacity because the applicant was fired for misconduct or conduct tantamount to refusing an offer of work. In its brief, Kohler points out that it initially returned the applicant to work paying at least 85 percent of his pre-injury wage. Since he was fired for the timecard issue, rather than because of his work restrictions, Kohler argues it is not liable for LOEC under Wis. Stat. § 102.44(6).
Wisconsin Stat. § 102.44(6)(a) does preclude a claim for loss of earning capacity if the applicant is returned to work paying 85 percent of his pre-injury wage. However, Wisconsin Stat. § 102.44(6)(b) provides for "reopening" an LOEC award if the employment relationship is thereafter terminated by the employer. That essentially is what happened here. The supreme court has held that the statute applies -- and the claim for loss of earning capacity may be reopened -- even when the employer terminates a worker for reasons other than the limitations from the work injury. (1) The supreme court has also made it clear that a loss of earning capacity award may be reopened, even if the worker quits because of his physical or mental limitations unrelated to an unscheduled injury. The commission has in the past recognized an exception to reopening a loss of earning capacity award when an employer terminates a worker due to conduct that is the analytic equivalent of refusing work under Wis. Stat. § 102.44(6)(g) or due to misconduct that justifies the commission in not exercising its discretion to "reopen" a loss of earning capacity award under Wis. Stat. § 102.44(6)(b). Wellsandt v. Chippewa County, WC Case No. 93050745 (LIRC, November 28, 1997).
The proof here falls far short of either standard. Kohler may believe it was justified in terminating the applicant's employment, but the facts here do not bar a loss of earning capacity award.
Nor does the fact the applicant was able to find re-employment elsewhere at at least 85 percent of his preinjury wage automatically bar an award for loss of earning capacity. Wisconsin Stat. § 102.44(6) clearly confines the 85/15 percent rule to wages paid by the time-of-injury employer. Post injury wages earned from another employer is a fact that may be considered in setting a loss of earning capacity award under Wis. Admin. Code § DWD 80.34(1), but post-injury wages with another employer cannot serve to bar the award entirely.
The last issue is the extent of loss of earning capacity. Kohler's expert asserts that the applicant has no loss, because he can make more as a supervisor than he would have made as a machine operator with Kohler had he remained there (the buffer/polisher job in which the applicant was injured having been eliminated). He noted, too, that the applicant did not appear to have been fired because of his work restrictions.
The applicant's expert, Maud Prall, rated a ten to fifteen percent LOEC for loss of access; that is, the idea that the applicant would have to be selective in his choices of employment in the future, though he might sustain little or no actual wage loss once he found a suitable job. She reasoned the applicant's injury would have an impact on his ability to find and retain employment, even though he probably could still work as a production supervisor.
The ALJ credited Ms. Prall's estimate. Kohler challenges the ALJ's decision, asserting that Ms. Prall relied on the inaccurate history that Kohler asked him to resign because of his work injury. However, Ms. Prall's opinions are not grounded in the reason why the applicant lost his job with Kohler, but rather the effect of his work restrictions in finding other work.
Further, Ms. Prall's rating is reasonable under the facts. After he separated from Kohler in 2000, the applicant obtained a post-injury production supervisor job but was laid off. He obtained another job which required to him to work third shift, and left that for another production supervisor that he subsequently lost due to that employer's bankruptcy. The applicant then had a significant gap in employment and brief employment as a shipping clerk until he retained a second shift job as a production supervisor.
In short, the expectation that the applicant will enjoy seamless employment as a production supervisor is unrealistic given the facts. The applicant has had to look for work, and will likely have to in the future, and the loss of access identified by Ms. Prall will more probably than not affect the applicant's earning capacity.
cc:
Attorney Michael H. Gillick
Attorney Paul H. Ten Pas
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