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

JAMES D BURESH, Applicant

WISSOTA TOOL & MACHINE, Employer

FALLS DAIRY CO DEC INTERNATIONAL, Employer

ACE PROPERTY AND CASUALTY INSURANCE
ACE USA, Insurer

KEMPER INSURANCE COMPANY, Insurer
 

WORKER'S COMPENSATION DECISION
Claim Nos. 1997-019890 & 1987-015355


Wissota Tool and Machine and Ace Property and Casualty Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on September 5, 2001. The applicant submitted an answer to the petition and briefs were submitted by all the parties, including Falls Dairy Company/Kemper Insurance Company. At issue are nature and extent of disability and liability for medical expense, including apportionment, attributable to the conceded work injuries of March 22, 1987, and March 29, 1996.

The commission has carefully reviewed the entire record in this matter, and hereby affirmed the administrative law judge's Findings and Interlocutory Order, accept as herewith modified:

MODIFIED FINDINGS OF FACT

1. In the second paragraph of page 5 of the administrative law judge's decision, substitute "1987" for each of the two references to "1988."

2. In the 14th line of page 19 of the administrative law judge's decision, substitute "1987" for "1986."

3. Delete the paragraph which begins with line 12 of page 22 and ends with line 4 of page 23 of the administrative law judge's decision, and substitute the following paragraph therefor:

"It is found that the 1987 and 1996 injuries each substantially and materially contributed to the applicant's current disability, and in accordance with Dr. Bodeau's medical opinion, liability is apportioned equally between those two injuries. Liability for permanent total disability rests with the employer(s)/carrier(s) on the risk for the injury or injuries which have the effect of pushing an injured worker into the "odd lot" category, such that the worker can no longer perform services for which a reasonably stable labor market exists. The medical evidence demonstrates that in this case, the 1987 and 1996 injuries each played an equal part in the development of the applicant's current physical condition, and therefore are equally responsible for pushing him into the "odd lot" category. Accordingly, Falls Dairy Company/Kemper Insurance Company together with Wissota Tool and Machine/Ace Property and Casualty are equally liable for the applicant's permanent total disability."

The remainder of the administrative law judge's Findings and Interlocutory Order are reiterated as if set forth herein.

Now, THEREFORE, THIS

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to confirm with the foregoing and, as modified, are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 30, 2002
buresja . wrr : 185 : 1  ND § 3.43

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission has little to add to the administrative law judge's balanced and well-reasoned decision. Petitioners were critical of Dr. Bodeau because his early opinions concerning apportionment of causation were unclear and/or inconsistent with his final opinion. However, Dr. Bodeau explained the medical reasoning behind his final opinion, with particular reliance upon the fact that no L4-5 annular tear was seen on the MRI study of February 28, 1996, while one was identified in the CT scan/myelogram of May 8, 1996. While these studies were of different diagnostic types, each should have identified an annular tear if one existed.

Petitioners also attacked the applicant's credibility, and while the commission agrees with the administrative law judge that the applicant's testimony was not credible in every respect, it is clear that he has sustained major permanent disability to his back, that his condition has deteriorated, and that Dr. Bodeau's most recent physical restrictions are credible. Those restrictions, in conjunction with consideration of the other factors enumerated in Wisconsin Administrative Code DWD § 80.34, place the applicant in the "odd lot" category.

cc:
Attorney Manlio G. Parroni
Attorney James D. Budish
Attorney Robert J. Kelly


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