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

EDWARD C. BONNELL, Applicant

VOLLRATH COMPANY LLC, Employer

VOLLRATH COMPANY LLC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-048728


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 April 28, 2005
bonnele . wsd : 101 : 8  ND 5.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The applicant was born in 1953. He was injured in September 2000. He hurt his back reaching to pick up a part. The commission previously found he was entitled to PPD at the amount rated by the employer's doctor, Dr. Keane, which was 2.5 percent to the whole body. The applicant now brings a claim for loss of earning capacity.

After his injury, the applicant returned to work subject to temporary restrictions, including a limitation on hours. While working on reduced duty subject to temporary restrictions, the employer discharged the applicant on the allegation that he had removed some items of product from the employer's premises on or about December 13, 2000.

The applicant testified that he had permission from a supervisor to remove the items from a "donation box," that is, a bin the employer kept for product it would donate to charities. According to the applicant, he had been given permission to take items for a club he belonged to in the past. Indeed, he testified a supervisor had given him permission to take the items he took on December 13, but the supervisor changed his story.

The employer called no witness to testify about the discharge. The record contains the notes of the investigation, which the applicant's attorney stipulated were admissible under the "business records" hearsay exception. Indeed, the employer offered to have its human resource director testify to provide the necessary foundation for the admission of the investigation notes at exhibit 8 as records of a regularly conducted activity, and that had the applicant not been fired, he would have been back at work with no wage loss. Transcript, page 81-85.

The parties sharply differ about the effect of the discharge. The applicant's attorney asserts the discharge does not bar the loss of earning capacity claim, or even justify a lower award, citing Brakebush Brothers Inc. v. LIRC, 210 Wis. 2d 623 (1997). The employer contends it has proven misconduct, which is a ground for denying a loss of earning capacity award altogether, and in any event the loss of earning capacity award should be reduced based on the discharge.

The ALJ awarded loss of earning capacity at 45 percent. He expressly rejected a higher loss of earning capacity given by the applicant's expert (whom he thought assumed too high a pre-injury wage and too limited a post-injury employment outlook) and instead credited the 45 percent rating given by the employer's expert.

The employer appeals.

The operative statutes are Wis. Stat. § 102.44(6)(a), (b) and (g), which provide:

102.44(6) (a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.

          (b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

          (g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal.

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, Wis. Stat. 102.44(6)(b) provides for "reopening" an LOEC award if the employment relationship is thereafter terminated by the employer. That is essentially 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. On the other hand, the commission has in the past recognized an exception where the 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 an LOEC award under Wis. Stat. § 102.44(6)(b)." Wellsandt v. Chippewa County, WC Case No. 93050745 (LIRC, November 28, 1997).

The applicant essentially argues that the fact of a misconduct discharge is irrelevant to a claim for permanent disability for loss of earning capacity, based on the Brakebush decision. While that case involved temporary disability compensation, the applicant points to fairly general language from the decision stating:

"The purpose of worker's compensation disability benefits is to compensate employees who have lost the ability to work, temporarily or permanently, due to a work-related injury, regardless of whether they are good or bad employees. It contravenes public policy to allow an employer to avoid paying disability benefits to a disabled employee without evidence that the employee's activities are inconsistent with his or her injury. Without such a requirement, the law would leave employees suffering from legitimate work-related injuries in grave danger of being left both unemployed and unable to work due to their work-related disability, without compensation and potentially with a lower earning capacity [Emphasis supplied.]."

However, the Brakebush court did not expressly consider Wis. Stat. § 102.44(6)(b) or (g) and the TTD statute has no comparable provisions. Further, the court was careful to note it was not addressing whether the injured worker in Brakebush effectively refused work within his restrictions -- which is the very argument on which a denial of loss of earning capacity following a misconduct discharge rests. Brakebush, at 210 Wis. 2d 631, note 1.

However, it is unnecessary to resolve language in Brakebush with the provisions of Wis. Stat. § 102.44(6) in this case. The record here falls short of establishing a reason to justify the denial or reduction of loss of earning capacity no matter what standard is used.

The record contains no firsthand testimony from anybody from the employer. While the applicant has stipulated to the admission of the notes of the investigation under a hearsay exception for records of a regularly-conducted activity, he did not stipulate they were true. In short, there is no firsthand testimony refuting the applicant's testimony that he had permission to take the items, and in the absence of such testimony the presiding ALJ -- who saw the applicant as he testified -- reasonably chose to base his findings on the applicant's testimony.

The employer also argues the commission should at least reduce the percentage of LOEC based on the alleged misconduct. Again, however, the commission is faced with the factual issue of whether the applicant actually committed the misconduct alleged as well as the legal issue of whether it is a factor that should count against him in rating loss of earning. And again, as set out above, there is little satisfactory proof of misconduct.

cc:
Attorney Michael H. Gillick
Attorney Daniel L. Zitzer



Appealed to Circuit Court.  Affirmed December 6, 2005.

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Footnotes:

(1)( Back ) See Mireles v. LIRC, 237 Wis. 2d 69, 84 (noting that under Wis. Stat. 102.44(6)(b), an employee may revisit an award if terminated by the employer and "no reason for the termination is required"), 86, 91 (concluding that the limitations that require an employee to end the work relationship under Wis. Stat. 102.44(6)(b) need not arise from an unscheduled injury or apparently from a compensable injury at all).

 


uploaded 2005/05/02