RALPH E BEECHER, Applicant
OUTOKUMPU COPPER KENOSHA INC, Employer
FREMONT INDEMNITY CO, Insurer
c/o CASUALTY INSURANCE
On December 18, 2001, the commission issued a decision finding, among other things, that Mr. Beecher had not made his prima facie case for permanent total disability on an odd-lot basis, and awarding compensation for loss of earning capacity at 60 percent.
Mr. Beecher sought judicial review and prevailed both in the Court of Appeals and Supreme Court. The Supreme Court found that the commission improperly considered Mr. Beecher's efforts to find work as part of his prima facie case. Noting that the employer conceded that Mr. Beecher had made his prima facie case, the court set aside the commission's decision and remanded the matter "for rebuttal and any further proceedings consistent with this opinion." Beecher v. LIRC, 2004 WI 88, ¶¶ 58, 59, 273 Wis. 2d 136, 173, 682 N.W.2d 29.
In compliance with the Supreme Court's remand order, the commission makes these
In addition to the findings challenged on review, the commission's December 18, 2001 decision found: (1) that Mr. Beecher's day-to-day employment activities to April 7, 1997 were least a material contributory causative factor in the onset or progression of his disabling condition; (2) that, as a result that exposure, Mr. Beecher sustained injury from an occupational disease arising out of his employment with the employer, while performing services growing out of or incidental to that employment; (3) that the appropriate date of injury was April 7, 1997; (3) that Mr. Beecher reached a healing plateau on May 19, 1999, with permanent partial disability on a functional basis at 15 percent compared to disability to the body as a whole; (4) that the work restrictions set out in the November 2000 functional capacity evaluation, as subsequently adopted by Mr. Beecher's treating doctor Christopher Noonan, M.D., were the most credible; (5) that the employer and its insurer (collectively, the respondent) were liable for certain medical expenses; and (6) that an interlocutory order was appropriate to permit future claims for disability compensation and medical expenses. Because these findings were not disputed on review, they are reiterated as if set forth herein. Further, as set forth above, the respondent has now conceded Mr. Beecher made his prima facie case under the odd-lot rule.
In deciding the rebuttal issue, the commission is particularly guided by the following language from the Supreme Court's decision in this case:
¶54 ... Under Balczewski, however, if the claimant brings forward the basic facts sufficient to satisfy the DWD that a prima facie odd-lot case has been made, the presumption is triggered and an obligation is imposed upon the party against whom the presumption runs-here, the employer. That obligation is the burden of proving that the non-existence of the presumed fact is more probable than its existence, or in other words, that it is more probable that the claimant is not permanently and totally incapable of earning a living. Balczewski holds that this burden requires the employer to show that there is an actual job that the claimant can do.
¶55 Accordingly, we conclude that the burden that shifts from the claimant to the employer under Balczewski is a burden of persuasion, but only as to the sub-issue of whether a job exists that the claimant can do. The burden of persuasion on the other aspects of the claimant's case for permanent total disability benefits remains, as always, with the claimant. The claimant must prove the industrial injury and medical aspects of his claim, and if the claimant makes a prima facie case for oddlot unemployability based upon his injury, age, education, training, and capacity, then it falls to the employer to show that there exists suitable employment for the claimant. The employer does this by bringing forward evidence of actual job availability, making it more probable than not that the claimant is able to earn a living. The claimant may respond with evidence of an actual, futile job search or rely on his expert evidence to defeat the employer's attempted rebuttal. The DWD then determines whether the prima facie odd-lot case under Balczewski has been successfully rebutted. The factors enumerated in DWD § 80.34 may come into play in the agency's ultimate determination of eligibility for benefits, to the extent that they overlap with the odd-lot doctrine, or in a broader sense to the extent that the odd-lot case fails and traditional eligibility rules prevail.
...¶57 ... Once a prima facie odd-lot case is made, it falls to the employer to prove that there is continuous and regular work available to the claimant in order to rebut the prima facie case of odd-lot unemployability. In making the ultimate determination of eligibility for benefits, the agency considers any factors enumerated in DWD § 80.34 that are consistent with the odd-lot doctrine, or more broadly if the agency concludes that the claimant is not prima facie odd-lot or the odd-lot prima facie case has been rebutted.
Beecher, at 264 Wis. 2d 170-173. In short, on rebuttal, the respondent has the burden of persuading the commission that there is a job Mr. Beecher can do, by bringing forward evidence of actual job availability, making it more probable than not that the claimant is able to earn a living.
The commission finds the respondent has not met that burden in this case.
Mr. Beecher was nearly 55 when injured, and 57 when treating doctor Noonan found he reached an end of healing in May 1999. Before his injury, Mr. Beecher had worked for the past 29 years for the employer. Mr. Beecher has a 9th grade education and admitted that his grades were mostly Cs and Ds. He has made some effort to get a GED, but has not obtained one. He testified that he could read e-mails, "some" of the newspaper, and certain magazines.
Mr. Beecher's vocational expert, Charles McReynolds, reported testing administered to Mr. Beecher showed proficiency at the 6th grade level for math, 7th grade for reading, and 5th grade for spelling. He noted that, consistent with Mr. Beecher's hearing testimony, he had not read a book in 30 years but occasionally read the newspaper. Based on the scores, and particularly Mr. Beecher's difficulty with math, Mr. McReynolds felt Mr. Beecher was not a candidate for retraining. The respondent's vocational expert, Leanne Panizich, reported her testing revealed average reading skills (34th percentile) which put Mr. Beecher at the high school level, but 6th grade levels of arithmetic and spelling (12th and 21st percentiles, respectively). She regarded these tests as showing "low average to average" academic skill, giving him the basic skills for work.
The employer relocated the job Mr. Beecher had when injured to another state. After reaching a healing plateau, in June 1999, Mr. Beecher tried to work as a security guard for about two weeks. This required standing and walking for about three hours per day, and it became painful for him after a half an hour. He could not continue in the job. After the employer's plant closed, he went to job service to try to find work. He had no success, and stopped going to job service after he qualified for social security disability.
With respect to whether jobs exist for Mr. Beecher, the respondent relies on the reports of Leann Panizich, particularly her December 20, 2000 report (exhibit 2). Ms. Panizich reported that Mr. Beecher can work in light duty under the restrictions of treating doctor Noonan, in jobs such as cashier, assembler, production inspector, checker/examiner, miscellaneous machine operator, hand packager. She stated that these positions exist in significant numbers in the open labor market (which she identified as Wisconsin). She asserted 2,000 such positions exist in the sedentary classification and 20,000 in the light classification.
At the initial hearing in this case, Mr. Beecher offered the testimony of vocational expert McReynolds. He questioned the reliability of the publication Ms. Panizich used as a source of jobs available to Mr. Beecher (transcript, page 62). Mr. McReynolds also questioned Ms. Panizich's use of "Wisconsin" as the geographic labor market, as opposed to the more regional Racine/Kenosha area where Mr. Beecher lives. Mr. McReynolds also testified that Mr. Beecher would be competing with younger, healthier individuals, and that Mr. Beecher "would have a lot going against him" in competing for the jobs identified by Ms. Panizich. Transcript, page 77. Finally, Mr. McReynolds testified that he did a job search using four of the job classes identified by Ms. Panizich. Using JobNet (1), and in some cases actually contacting employers, he could not locate a single job within Mr. Beecher's restrictions in the Racine/Kenosha area. Transcript, pages 78.
The commission concludes that Ms. Panizich's report fails to show that an actual job exists that Mr. Beecher can do. Based on Mr. McReynold's testimony and on Mr. Beecher's testimony about his attempt to work as a security guard, the commission is persuaded that Mr. Beecher probably can not obtain employment in the job classes identified by Ms. Panizich. The reliability of Ms. Panizich's report is also undercut by various other points made by Mr. McReynolds. In particular, Mr. McReynolds noted that Ms. Panizich's report overstates the relevant geographic labor market, and that the report does not identify open positions but merely jobs purportedly within Mr. Beecher's restrictions bolstered by the presumption that because they exist in sufficient numbers within the state to constitute "regular work available to the [applicant.]" Further, her report does not identify any particular job or employer as "evidence of actual job availability." After considering Mr. Beecher's age, education, work experience, and efforts to find employment (which included short term employment as a security guard which Mr. Beecher had to discontinue for physical reasons), and the other factors set out in Wis. Admin. Code § DWD 80.34(1), the commission concludes the respondent has not met its burden of persuasion on rebuttal.
The commission therefore finds that Mr. Beecher was permanently totally disabled as of the date he reached an end of healing, May 19, 1999.
Under a compromise agreement dated October 27, 1998, Mr. Beecher agreed not to claim any additional temporary disability accruing, or medical expense incurred, prior to October 14, 1998. However, Mr. Beecher did not reach an end of healing until May 19, 1999, and the respondent has failed to establish a reason not to pay temporary total disability in the interim. Accordingly, Mr. Beecher is entitled to temporary total disability from October 14, 1998 to May 19, 1999, a period of 30 weeks and 5 days. Due to the social security reverse offset under Wis. Stat. § 102.44(5), Mr. Beecher is entitled to disability compensation at the weekly rate of $308.45 during this period of temporary disability totaling $9,510.54, and his attorney is entitled to a fee at the weekly rate of $61.69, totaling $1,902.11.
The social security reverse offset also affects Mr. Beecher's award for permanent total disability through December 31, 2003, as follows:
As of January 1, 2004, the social security reverse offset ends, as the amount due calculated under Wis. Stat. § 102.44(5) plus the attorney fee exceeds the applicant's straight permanent total disability rate of $509 per week (the statutory maximum for injuries in 1997.) For the period from January 1, 2004 to May 19, 2005, a period of 72 weeks, the applicant is entitled to compensation at the weekly rate of $407.20, totaling $29,318.40. His attorney is entitled to a fee at the weekly rate of $101.80 for that period totaling $7,329.60.
The total currently due the applicant in temporary total disability and permanent total disability compensation, then, is $122,868.15, from which is subtracted $13,920 which has been previously paid, leaving a balance of $108,948.15, which shall be paid the applicant in 30 days. The total due the applicant's attorney in fee is $26,038.93, for which $3,480 has been previously paid, leaving a balance due of $22,558.93. That amount, plus costs of $1,481.37 (paid from the reverse social security offset savings), shall be paid to the applicant's attorney in 30 days.
From June 19, 2005 through December 19, 2005, the amount due the applicant monthly for permanent total disability compensation is $1,764.52, and the amount due his attorney monthly in fee is $441.13. As of December 19, 2008, all 500 weeks of fee permitted under Wis. Admin. Code § DWD 80.43(3) will have been paid. Beginning on January 19, 2009, the applicant shall receive the full rate of $2,205.67 per month for life.
The commission's award for disability compensation is based on figures obtained from the Worker's Compensation Division; if the respondent has paid more than the computation set out above assumes, it may take an appropriate credit so that it does not pay the same amount twice.
The commission assumes also the medical expenses awarded have already been fully paid.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Ralph E. Beecher, One hundred eight thousand nine hundred forty-eight dollars and fifteen cents ($108,948.15) in disability compensation.
2. To the applicant's attorney Daniel J. Kelley, the sum of Twenty-two thousand five hundred fifty-eight dollars and ninety-three cents ($22,558.93) in fee and One thousand four hundred eighty-one dollars and thirty-seven cents ($1,481.37) in costs.
Beginning on June 19, 2005, and continuing on the nineteenth day of each month thereafter through December 19, 2008, the employer and its insurer shall pay all of the following:
1. To the applicant, One thousand seven hundred sixty-four dollars and fifty-four cents ($1,764.54) per month in disability compensation.
2. To the applicant's attorney, Four hundred forty-one dollars and thirteen cents ($441.13) per month in fee.
Beginning on January 19, 2009, and continuing on the nineteenth day of each month thereafter, the employer and its insurer shall pay the applicant Two thousand two hundred five dollars and sixty-seven cents ($2,205.67) per month for life
Jurisdiction is reserved for further orders and awards as are necessary and warranted under this decision.
Dated and mailed May 6, 2005
beecher . wrr : 101 : 8 ND § 5.31
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In its brief, the respondent asserts that "based on the evidence already in the record, the persuasiveness of which the LIRC already determined, the LIRC must uphold its original decision and find that the respondents rebutted the case for PTD." The respondent asserts that while the commission should not have used the term prima facie in its original findings, "elevating substance over the unfortunate use of the term" the commission in fact has already balanced the persuasiveness of each side's case.
The commission does not believe it is bound to decide this case in favor of the respondent because of the findings in its prior decision. First and foremost, once the prima facie case is made the burden of persuasion shifts to the respondent, a point the Supreme Court made clearly in its decision, and which was the basis for rejecting very similar arguments on appeal. Beecher, at 273 Wis. 2d 168, ¶ 48, 173, ¶ 55 note 10. In other words, the fact the commission weighed the evidence in the respondent's favor when it erroneously determined Mr. Beecher had not made his prima facie case does not mean it must weigh the evidence in the respondent's favor on the separate question of whether the respondent has met its burden on rebuttal.
Second, the Supreme Court did not simply set aside part of the commission's decision; it set it aside the decision entirely. This is not a case where the commission is "reconsidering" its prior findings; those findings no longer exist.
Third, the fact an agency gives a wrong reason or entertains a mistaken view of the law is immaterial if it makes an order it is entitled to make on the facts found. United Shoe Worker's v. Wisconsin Labor Relations Board, 227 Wis. 569, 576-77, 279 N.W. 37, 40 (1938) (holding also that when a board enters an order authorized by the applicable statute upon a set of facts which are supported by the evidence, the order is immune from judicial attack); Liberty Trucking Co. v. ILHR Department, 57 Wis. 2d 331, 342 (1973) (an appellate court is concerned with whether the decision of the department is correct, not whether its reasoning is.) If the Supreme Court had viewed the commission's error as simply one of semantics, or of form over substance, it presumably would have affirmed under that line of authority. However, the court did not affirm, suggesting that a decision in the respondent's favor does not automatically result from the facts found by the commission in its initial decision under the correct view of the law. Rather, the court expects the commission to use its judgment in weighing the evidence. While the terms of the remand order allow the commission to credit Ms. Panizich's report on the issue of whether continuous and regular work is available to the claimant, after weighing the evidence the commission concluded the respondent did not meet its burden of persuasion.
Attorney Scott E. Wade
Attorney Daniel J. Kelley
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(1)( Back ) According to McReynolds, JobNet lists open jobs, while the Employment Statistics Quarterly relied upon by Ms. Panizich lists all jobs whether open or not.