BRAD A PORTER, Applicant
RON KILTY CONCRETE, Employer
INTEGRITY MUTUAL INSURANCE CO, 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 28, 2005
porterb . wsd : 101 : 8 ND § 5.40
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant is a concrete worker born in 1972. There are two insurers and two dates of injury: a 2000 injury when Integrity Mutual Insurance (Integrity) was on the risk and a 2002 injury when Society Insurance (Society) was on the risk.
The first injury occurred on August 21, 2000, when the applicant moved a trailer to hook it to a truck, and felt a pull in his back. The applicant came under the care of Margaret Anderson, M.D., for nonoperative treatment. On February 19, 2001, Dr. Anderson opined the applicant's permanent work restrictions were those set out in a December 2000 FCE, including a 75-pound maximum lift, and a one and one-half hour sitting tolerance. She added that he could not do extended driving such as operation of a Bobcat. She rated a 2 percent PPD, which she felt was from a previously asymptomatic condition that was aggravated by his work injury. She recommended retraining and working through DVR.
The applicant, however, continued to work. On April 30, 2002, Dr. Anderson recommended an epidural injection to deal with his continuing pain.
On May 7, 2002, however, before the injection was done, the applicant sustained another work injury. This occurred while he was shoveling or puddling concrete.
The previously-recommended injection was done on May 16, 2002. On May 23, 2002, noting increasing symptoms, Dr. Anderson issued work restrictions permitting lifting up to 50 pounds rarely, and again emphasizing the need for the applicant to pursue other options.
Dr. Anderson has consistently regarded the May 2002 injury as a mere short-term exacerbation from which the applicant returned to baseline, a temporary aggravation of a pre-existing condition dating back to the August 2000 injury. She also explained that the epidural injection had been scheduled before the May 2002 injury occurred. Regarding the increased restrictions after the May 2002 injury, she stated "I cannot fully attribute this to an additional work injury but rather to the natural history of the underlying degenerative disease." It is evident from an earlier note that she declined to attribute the need for the increased restrictions to the August 2000 injury. Society exhibit 2.
Dr. Anderson reiterated her opinions both in a practitioner's report at exhibit E and a letter to the applicant's attorney at Society exhibit 3. She referred to the May 2002 event as a temporary aggravation of a pre-existing condition, and stated he was back to baseline by January 2003. She maintained her previously-rated 2 percent PPD for the August 2000 injury and rated no PPD for the May 2002 injury. She attributes the initial set of restrictions (the 75-pound maximum) to the August 2000 injury, but not the additional restrictions (50-pound maximum).
Integrity retained Richard Lemon as its examiner. Dr. Lemon did not think the applicant suffered anything more than a minor back strain with the August 2000 injury, and does not think the May 7, 2002 injury even occurred. He does say the applicant has pre-existing multilevel degenerative disease, but indicates he does not think even the 2 percent PPD rated by Dr. Anderson for the August 2000 injury was warranted.
The applicant's vocational expert is Francis Maslowski, and his report is at exhibit 6. He opined that even Dr. Anderson's original set of restrictions precluded work as a concrete worker, though he exceeded them. He opined the vocational effect of the applicant's injury is significant as it prevents him from working as a concrete worker where he could eventually have expected to earn well over $20.00 per hour. He thought retraining as a "civil engineering technician" was appropriate to recover his lost earning capacity.
The respondent's expert is Thomas Herro. He opined the applicant would have no loss of earning capacity under Dr. Anderson's initial set of restrictions and a minimal 0 to 5 percent under the second set of restrictions.
The ALJ found for the applicant, awarding 2 percent PPD, medical expense, and finding that the applicant was entitled to vocational rehabilitation benefits which he approved beyond 80 weeks (it appears DVR approved another semester, bringing the total to 90 weeks). He kept his order interlocutory for, among other things, possible loss of earning capacity. He held the 2000 insurer, Integrity, liable for everything.
Integrity appeals. It argues that Dr. Lemon is more credible on causation. It also argues that the applicant's increased restrictions are not related to the August 2000 work injury, and that the applicant had no loss of earning capacity under the first set of work restrictions, so he should not get compensation for vocational retraining under Wis. Stat. § § 102.43(5) and 102.61.
Regarding the medical issue, the ALJ who saw the applicant testify credited an injury causing permanent disability from the August 2000 event. The commission also agrees that Dr. Anderson's opinion on this point is more reasonable than Dr. Lemon's. The commission does recognize that the applicant tried to relate the epidural injection on May 16, 2002 to the May 7, 2002 injury while puddling concrete. See Society exhibit 1, report of Anderson dated January 21, 2003. However, that does not retroactively invalidate the work restrictions and permanency rating set by Dr. Anderson for the first injury many months earlier.
Integrity also makes the point that the applicant's symptoms got worse in early 2002 when he was off work on layoff. However, Dr. Anderson knew this. And presumably it is why she attributed the exacerbation--and the increased restrictions in May 2002--solely to the underlying condition rather than either work injury.
With respect to the vocational rehabilitation claim, Integrity argues that the applicant had work restrictions, but no loss of earning capacity, from the August 2000 injury (as the second set of restrictions were related by Dr. Anderson solely to the underlying pre-existing condition and not any work injury). Integrity asserts that with no loss of earning capacity, there can be no vocational rehabilitation, citing language from an ALJ decision affirmed without opinion in Machel v. O'Malley Oldsmobile, WC Claim No. 97-007744 (LIRC, May 31, 1990).
However, when the applicant returned to work after the first injury, he performed duties in excess of the first set of restrictions, as both Dr. Anderson and vocational expert Maslowski opined. Dr. Anderson recommended the applicant change jobs or obtain DVR retraining indicating that his injury made continuing work as a concrete worker infeasible long term. Further, Mr. Maslowski convincingly explains why the applicant's job as a concrete worker with the employer was beyond even the first set of restrictions. While there may not have been permanent wage loss until after the applicant stopped working, the applicant's restrictions and condition from the first injury did cause a reduction in earning capacity.
Further, under Wis. Stat. §§ 102.43(5) and 102.61(1), if a worker is entitled to receive and has received workers compensation, and is entitled to receive and is receiving instruction under the federal vocational rehabilitation laws, he is eligible for certain expenses as well as weekly payments at the temporary total disability rate. Under Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957), the authority of the commission and the workers compensation division in such cases is limited, at least once it is determined that the applicant has a compensable injury and that DVR has certified the worker for retraining.
Specifically, the supreme court has noted the narrow scope of review of the commission (or its predecessor agency, the Industrial Commission) under Wis. Stat. § 102.61(1). The court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR, and that the Industrial Commission had no power to review the acts of the DVR predecessor. The court held that the Industrial Commission must find that an injured worker receiving retraining authorized by the DVR predecessor is entitled to it, unless the commission concluded that (a) highly material facts were withheld or misrepresented to the DVR predecessor or (b) the DVR predecessor's interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power. Massachusetts Bonding, at 275 Wis. 512. (1)
Further, ALJ Jackson's decision in the Machel case discussed loss of earning capacity in that case was in the context of former Wis. Admin. Code § IND 80.49 which previously stated that if the injury at issue did not cause at least 100 weeks of PPD, it would be presumed no retraining was needed. ALJ Jackson was making the point that in determining if that 100-week threshold was met, a decision maker should consider an injured worker's permanent partial disability for loss of earning, not simply his permanent partial disability on a functional basis. Former Wis. Admin. Code § IND 80.49 was removed from the code after the court of appeals suggested the limit set out thereunder could not conflict with Massachusetts Bonding and that the presumptions applied only to compensation after the 80-week, then 40-week, limit under Wis. Stat. 102.43(5). Dane County Hospital & Home v. LIRC, 125 Wis. 2d 308, 325-26 (1985). Finally, commission decisions (or here an ALJ decision affirmed by the commission) are based on their own facts, and are not binding precedents in subsequent commission decisions. United Wisconsin Ins. Co. v. LIRC, 229 Wis. 2d 416, 424, 600 N.W.2d 186 (Ct. App. 1999). In any event, ALJ Jackson's discussion pertained to a different point under a code provision that has been eliminated.
In short, under Wis. Stat. § 102.61 and Massachusetts Bonding, the commission's authority is limited to determining if a worker has received compensation under ch. 102 and is receiving instruction under the vocational rehabilitation laws. Neal & Danas, Worker's Compensation Handbook § 5.40 (5th Ed. 2004), cited by Integrity, adds the sensible implication that the disability occasioning the retraining must be related to the work injury for which the compensation was paid. But the statute as interpreted in Massachusetts Bonding and Dane County Hospital does not require the commission to make a finding of loss of earning capacity to supplement DVR's determination.
In this case, the ALJ awards retraining beyond 80 weeks because the coursework the applicant is taking lasts last 90 weeks. That is entirely appropriate and in any event DWD retains ongoing review authority after 80 weeks -- in the event the retraining stretches out beyond 90 weeks -- under Wis. Stat. § 102.43(5).
cc:
Attorney R. John Symonds
Attorney Randall Skiles
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