BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JOHN MARSHALL, Applicant

TACKLE BOX SPORTS SHOP, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 84-25047, 88-36778


The employer and its insurer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued on April 5, 1989. The applicant submitted an answer to the petition. At issue is whether the applicant sustained a work-related back injury on March 23, 1987, and if so, nature and extent of disability and liability for medical and mileage expense.

The Commission has carefully reviewed the entire record in this matter, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the applicant, who was the only witness at the hearing, hereby affirms the Judge's Findings and Interlocutory Order except as herewith modified:

MODIFIED FINDINGS OF FACT

In the second sentence of the third paragraph under FINDINGS OF FACT substitute "worker" for "worked."

Delete the eleventh paragraph under FINDINGS OF FACT and substitute the following paragraph therefor:

"Prior to his work injuries, the applicant had lifted items weighing up to 70 pounds in his work for the employer. He is now limited to sedentary work, as well as select jobs in the light and medium categories. His access to the general labor market has been significantly reduced by the effect of the work injuries. On the other hand, the employer/insurer's vocational expert, William Dingess, noted that the applicant's job seeking could be enhanced by his consideration of a wider scope of employment options, as well as receiving assistance in job placement or in developing on-the-job training opportunities. It is inferred from the applicant's failure to broaden his job search that he has primarily limited his opportunities to the sporting goods business, when he is young enough and capable enough to seek other career opportunities. Given these various considerations, it is found that the applicant sustained a 25 percent loss of earning capacity, which is 5 percent less than the lowest estimate of applicant's vocational expert, Michael Guckenberg. It is inferred that Mr. Guckenberg did not fully account for the applicant's less-than-complete effort to obtain suitable work. In accordance with Dr. Miller's breakdown of applicant's functional impairment, it is found that 16.67 percent loss of earning capacity was the result of the 1987 injury, and 8.33 percent loss of earning capacity was the result of the 1984 injury."

Delete the twelfth paragraph under FINDINGS OF FACT and substitute the following paragraph therefor:

"The applicant was temporarily totally disabled from March 23, 1987 to July 6, 1987, a period of 14 weeks and five days. At the applicable weekly rate of $ 211.35, he is due the sum of $ 3,135.02 for temporary total disability. The 8.33 percent permanent partial disability attributable to the 1984 injury entitles the applicant to 83.3 weeks of compensation, at the applicable rate of $ 100 per week, for a total of $ 8,330. The insurer has already paid $ 7,000 of that sum leaving a balance due of $ 1,330, less a 20 percent attorney's fee of $ 266. The 16.67 percent permanent partial disability attributable to the 1987 injury entitles the applicant to 166.7 weeks of compensation, at the applicable rate of $ 117 per week, for a total of $ 19,503.90. The 20 percent attorney's fee against this award and against the temporary total disability award amounts to $ 4,527.78, which will be reduced by an interest credit of $ 8.60 for immediate payment. Applicant's attorney is also entitled to $ 623.50 in costs, which will be subtracted from applicant's award. The net amount of accrued permanent partial disability and temporary total disability due the applicant on April 7, 1990 is $ 16,395.72. Beginning May 7, 1990, the applicant is entitled to monthly payments of $ 507 until he has received the further sum of $ 2,155.92. Applicant's attorney is entitled to fees in the total amount of $ 4,785.18, plus $ 623.50 in costs. These figures take into account the $ 7,000 in permanent partial disability previously paid to the applicant for the 1984 injury."

Delete the thirteenth paragraph under FINDINGS OF FACT and substitute the following paragraph therefor:

"The insurance carrier challenged the reasonableness of the medical charges submitted by the applicant and whether they were all attributable to his 1987 work injury. For example, there are charges for elbow and wrist X-rays on October 25, 1988; antibody and blood work done on November 16, 1988; an unexplained X-ray charge for $ 736.95 on March 24, 1987; and a hospital room charge for $ 1,395 on March 24, 1987, without a breakdown of whether this represents several days of room use or other expense. The applicant withdrew from consideration two charges incurred on March 23, 1987, and charges for prescription drugs, leaving an unidentified balance of medical expenses claimed. The applicant also claimed $ 66.22 for mileage with no indication of when or why this mileage was incurred. Employers Insurance of Wausau paid $ 19,912.48 in medical expense for the applicant. Given the state of the record the order must be left interlocutory, with Liberty Mutual Insurance liable to reimburse Employers Insurance of Wausau for any medical expense which Employers or the applicant can demonstrate was reasonable and necessary as a consequence of the 1987 work injury. The applicant may also submit verification to Liberty Mutual of the reasonablenss and necessity of the mileage charge for $ 66.22, which Liberty Mutual may thereafter be liable to pay to the applicant."

Delete the Administrative Law Judge's INTERLOCUTORY ORDER and substitute therefor all except the first sentence of the Commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the Administrative Law Judge are modified to conform with the foregoing, and as modified, are affirmed. Within 30 days from this date, the employer or its insurer shall pay to the applicant as accrued compensation for temporary total disability and permanent partial disability the sum of Sixteen thousand three hundred ninety-five dollars and seventy-two cents ($ 16,395.72); to the applicant as unaccrued compensation the sum of Five hundred seven dollars ($ 507) per month beginning on May 7, 1990, and continuing monthly thereafter until the further sum of Two thousand one hundred fifty-five dollars and ninety-two cents ($ 2,155.92) has been paid to him; and to applicant's attorney, James Bartells, attorney fees and costs in the total amount of Five thousand four hundred eight dollars and sixty-eight cents ($ 5,408.68).

Jurisdiction is reserved with respect to all issues.

Dated and mailed March 13, 1990
ND § 3.31

Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In the petition, the employer/insurer first asserted that the applicant's 1987 injury was idiopathic in nature, i.e., due solely to a force personal to the applicant. However, the undisputed testimony was that the applicant's back injury occurred on March 23, 1987, when he reached across his desk from a seated position to grab some work papers. Unlike the applicant in the Commission decision cited by the employer/insurer, Witkowski v. ARPS Manufacturing, Inc., issued on May 6, 1988, the applicant was clearly performing a duty of his employment when he sustained his back injury. His injury was a consequence of the stretching motion he made across his work desk in furtherance of his work duties, while the Commission was unconvinced that the back pain Mr. Witkowski experienced upon simply rising from a seated position was related to any cause other than his own back spontaneously giving out.

The employer/insurer next argue that the Administrative Law Judge erred in accepting Dr. Miller's physical restrictions over those given by Dr. Idarraga. Initially, it must be noted that Dr. Miller was the treating physician, and the Administrative Law Judge found the applicant credible with respect to his stated physical limitations, which are similar to those provided by Dr. Miller. Perhaps more importantly, a simple inspection of the record reveals that Dr. Idarraga gave no specific opinion regarding what the applicant's physical restrictions are.

The employer/insurer assert that the applicant sustained no loss of earning capacity, but this argument was rejected by the Commission for the reasons given in the Administrative Law Judge's decision as modified by the Commission. The Commission consulted with the Judge regarding the credibility and demeanor of the applicant, who was the only witness at the hearing held on March 7, 1989. The Commission agreed with the Administrative Law Judge with respect to his credibility impressions, but was compelled by the evidence to place more weight on the fact that the applicant had not demonstrated a full and complete effort to obtain suitable employment subsequent to his 1987 work injury.

The employer/insurer also asserted that no loss of earning capacity should have been attributed to the 1984 work injury, because the applicant went back to work at full wages between 1984 and 1987. However, after the 1987 injury, the applicant was released to return to work. It is inferred that had the employer not gone out of business shortly after the 1987 work injury, the applicant could have returned to work for it in his former capacity as a buyer. Therefore, the 1987 injury was not the sole cause of the applicant's loss of employment and loss of earning capacity. His ability to find other employment has been affected by both the 1984 and the 1987 work injuries.

cc:
Attorney Thomas W. Bertz,
Anderson, Shannon, O'Brien, Rice & Bertz

Attorney James Bartells,
Jerome A. Maeder, S.C.

Employers Insurance of Wausau


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