MARTHA LOHR, Applicant

KOHLER CORP, Employer

KOHLER CORP, Insurer

The commission had previously set aside its order dated February 28, 2005, for further consideration in an order dated March 28, 2005. The commission set aside the previous order since it appeared that there was an error made in calculation of the amount of scheduled permanent disability the applicant was entitled to due to her work injuries. Based on subsequent calculations for permanent disability the commission makes the following order:

1. Delete the first three sentences in the first paragraph on page 11 of the administrative law judge's findings of fact and substitute therefor:

The medical evidence establishes the applicant suffered a work-related injury and has sustained 15 percent permanent partial disability to the right upper extremity at the shoulder as a result of the work injury.

2. Also delete the last full paragraph on page 12 of the administrative law judge's findings of fact which extends to the top of page 13 and substitute therefor:

The applicant is entitled to 15 percent permanent partial disability at the right shoulder. The employer conceded the applicant suffered 10 percent permanent partial disability at the right wrist and 15 percent permanent partial disability at the right thumb as a result of her work injury. Applying the statutory and regulatory parameters for multiple injuries, including Wis. Stat. § 102.53 and DWD Section 80.50, the applicant is entitled to permanent partial disability for 134.01 weeks based on 66.57 weeks for the right shoulder, and 38.20 weeks for the right wrist plus 7.64 weeks for the multiplier, and 18 weeks for the right thumb plus 3.60 weeks for the multiplier. At the rate of $184.00 per week the applicant is entitled to $24,657.84. Out of the $24,657.84 the employer and its insurer have previously paid permanent partial disability benefits of $11,003.20 including $2,200.64 as attorney's fees. The total payable to the applicant is $13,654.64 less attorney's fees due the applicant's attorney in the amount of $2,730.93 and costs of $141.37 leaving the amount of $10,782.34 payable to the applicant.

The employer and its insurer shall also pay appropriate temporary total disability benefits at the weekly rate of $394.14 minus a 20 percent attorney's fees payable to the applicant's attorney and shall also pay benefits as specified under the law during those periods of time the applicant participates and/or has participated in the DVR Retraining Program. The applicant is directed to specifically identify both periods of time.

Additionally, the employer and its insurer shall pay reasonable and necessary medical expenses related to the work injury along with mileage expenses including but not limited to: to applicant as reimbursement for out-of-pocket expense and mileage $1,524.35; to Dr. Heydarpour, $150.00; to Froedtert Memorial Hospital $133.00; to Aurora Health Care $116.49; to EMPI $870.67 and to Greater Milwaukee Pathologists $378.00.

The employer and insurer are entitled to take credit against the amount to which applicant is otherwise entitled in this order for any corresponding payments of worker's compensation payments which have already been made.

Jurisdiction is reserved for such further orders or awards as may be warranted.

Dated and mailed May 6, 2005
lohrma . wpr : 175 : 8 ND § 5.21  § 5.40

/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 determining the applicant suffered 10 percent permanent partial disability to the body as a whole as a result of her work-related injury to her right wrist and thumb on August 9, 2000. The employer points to the fact that the applicant did not demonstrate any disability to any unscheduled part of her body as a result of her work injury. The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony concerning any disability or restrictions to other parts of her body other than her right upper extremity as a result of her work injury on August 9, 2000. The administrative law judge indicated that the applicant did not report any disability or restrictions to other parts of her body other than her right upper extremity as a result of her work injury.

The administrative law judge appropriately noted in his order that it is the location of the disability, and not the injury, that determines whether the schedule applies. However, in this case there is no evidence that there is any specific permanent disability or restrictions to the applicant's back or head or any other unscheduled parts of her body due to her scheduled work injury. The administrative law judge indicated that the applicant's permanent disability involves her right wrist and her right upper extremity.

The fact that the applicant received injections in her cervical spine to relieve and cure the symptoms in her right upper extremity does not in and of itself establish any permanent disability to the cervical spine. In addition, although the applicant clearly has reflex sympathetic dystrophy as a result of the work incident which involves the sympathetic nervous system, none of Dr. Heydarpour's notes or reports reflect any permanent disability to an unscheduled part of the body as a result of that involvement. Dr. Heydarpour does not list any specific restrictions to any other part of the applicant's body as a result of her right upper extremity injury.

There is only one comment in the applicant's testimony that she had some neck involvement as a result of the work injury, but there are no specific limitations indicated, and none of the applicant's treatment notes reflect a neck or back involvement. The applicant mentioned that she has headaches which she did not have before the work injury. However, Dr. Heydarpour did not indicate any restrictions due to headaches, and he does not even mention the headaches as an ongoing problem.

The employer submitted a report from Dr. Toivonen dated January 31, 2003. Dr. Toivonen noted the applicant does have reflex sympathetic dystrophy which was not active. Dr. Toivonen opined the applicant did not suffer any permanent disability of the body as a whole, and her disability was limited to her right upper extremity, and therefore an entire body disability rating was not appropriate. The commission credits Dr. Toivonen's assessment that the applicant did not suffer any permanent disability to the body as a whole as a result of her work-related injury in August 2000. However, the commission finds that the administrative law judge appropriately awarded the applicant 15 percent permanent partial disability to the right shoulder as a result of the applicant's work injury. The applicant's treatment notes are replete with evidence that the applicant's injury affected more than just her thumb and her wrist, and she has pain complaints and tingling and numbness extending up into her right upper extremity to the shoulder. The commission credits Dr. Heydarpour's assessment that the applicant suffered 15 percent permanent partial disability to the right shoulder as a result of her work injury.

In addition, the employer contends that the administrative law judge erred in awarding the applicant DVR retraining benefits for her course of training at Lakeland College in business management. The employer contends that the applicant's course of retraining will enhance her prior earning capacity and not merely restore it. Under Massachusetts Bonding Insurance Company v. Industrial Commission, 275 Wis. 505 (1957), the Supreme Court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR, and that the commission had no power to review the acts of the DVR. The Supreme Court held that the commission must find that an injured worker receiving retraining authorized by the DVR is entitled to it unless the commission concluded that highly material facts were withheld or misrepresented to the DVR or the DVR's interpretation of the vocational rehabilitation laws was so outside the reasonable scope of interpretation as to be an abuse of administrative power.

The administrative law judge appropriately held in this case that there was neither material facts withheld or misrepresented to the DVR by the applicant, nor was there an interpretation so as to fall outside the reasonable scope of interpretation by the DVR to be an abuse of administrative power. Mr. Louden, the applicant's DVR counselor, testified he considered the applicant's severe lifting restrictions, and her inability to find suitable work in certifying her for retraining. Mr. Louden noted that the applicant was at least of average intelligence and has strong math skills, and would perform well in college which is evidenced during her first semester.

The employer argues that by certifying the applicant for a college degree program that in fact the employer is being forced to pay for retraining which enhances the applicant's earning capacity rather than restoring it to what it was at the time of her work injury. However, the applicant's eligibility for retraining is not limited simply to the training which will restore her to her previous wage level. The statute and administrative rules are not interpreted so narrowly. Section DWD 80.49 of the Wisconsin Administrative Code provides that the primary purpose of vocational rehabilitation benefits is to provide a method to restore an injured worker as nearly as possible to the workers pre-injured earning capacity and potential. The term potential refers to the future ability to increase one's earnings beyond that in the current occupation. It is clear from the evidence that the applicant has sufficient intelligence and potential to exceed what she was earning with the employer, and her work injury has restricted her from performing the more physical work that she had done in the past.

In Vande Kolk v. Quad Graphics and Home Insurance, Commission Decision dated December 14, 1999, the employer argued that the applicant being retrained in police science was inappropriate because completion of the program would more than restore the applicant's pre-injury earning capacity. The commission disagreed and stated scrutiny of the applicant's earnings in her prior jobs such as gas station attendant, waitress and bartender/manager did not fully explore her pre-injury earning capacity or potential. The commission stated that the goal is not merely to search for a restoration of the pre-injury earning capacity, but rather to identify and restore the pre-injury capacity and potential as stated in the administrative regulations. The commission cited Beloit Corporation v. State, 152 Wis. 2d 579 (1989) and noted that the applicant's pre-earning injury capacity was certainly not virtually limitless, but her years of college after high school suggested her earning capacity potential was significant. In our current case, the applicant's aptitudes and math skills would certainly indicate that her earning capacity potential was appropriate for business management as noted by Mr. Louden. The commission finds the administrative law judge appropriated awarded the applicant retraining benefits pursuant to Wis. Stat. § 102.61 and 102.43.

cc:
Attorney Kellett J. Koch
Attorney Jan M. Schroeder

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