WILMER WETOR, Applicant
BOLENS CORP, Employer
SENTRY 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 June 23, 2005
wetorw . wsd : 101 : 8 ND § 5.31
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
This case arises from the applicant's claim for permanent total disability. He was born in 1943. He is a high school graduate, who served in the U.S. Army for two years. He began working for the employer, Bolens Corporation, in 1965, and worked there and for another employer, Milsco Manufacturing, during almost his entire employment history.
During the course of his employment for the employer, the applicant suffered a neck injury due to occupational exposure. Due to his injury, the employer moved the applicant from work as an assembler to work as a shipping/receiving clerk.
The applicant underwent a three-level cervical fusion discectomy in 1986. Following his surgery, he was permanently restricted from work over chest level. Indeed, a June 14, 1995 report from James R. Flesch, M.D., an IME retained by the employer, agreed the applicant should avoid work involving elevation of the arms beyond chest level, and should avoid excessive bending, rotation, or twisting of the cervical spine.
In 1996, the applicant underwent a refusion from T1 to C7. He returned to work as a shipping/receiving clerk, but then was laid off in 1997 when the employer's plant closed. The applicant began working as a receiving clerk at Milsco Manufacturing within two weeks after his layoff. While working for Milsco, the applicant continued to treat for his neck problems, having approximately 55 physical therapy appointments from 2001 to 2003. The applicant lost his job at Milsco due to cutbacks in 2003.
According to the applicant, he then contacted 35 to 40 employers about work before finding work as a receiving clerk with Milwaukee Sign in July 2003. However, he had to leave that job after a day because of increased pain. He testified he could not continue in this employment because it required him to turn and file papers different places, something he just could not do.
The applicant's treating doctor, D. Scott Sellinger, M.D., has completed a functional capacity evaluation which is at exhibit A. This allows an eight hour day, with up to eight hours at any one time of sitting, standing and walking. It allows continuous lifting or carrying of up to 5 pounds, frequent lifting or carrying of up to 10 pounds, occasional lifting or carrying of up to 20 pounds, and no lifting or carrying over 20 pounds. It allows occasional squatting, crawling, and climbing, but no overhead or above the shoulder reaching. The doctor recommended avoidance of upward gazing and of rotation of the head to the left and right.
The employer and its insurer (collectively, the respondent) retained Dennis Brown, M.D., to do an examination. He set permanent restrictions as
light work level with no lifting greater than 25 pounds on an occasional basis, no work at or above shoulder height under any circumstances, no repetitive rotation of the neck, no repetitive crawling, and no exposure to marked temperature changes, namely cold drafts.
According to the applicant's vocational expert, Maude Prall, given the applicant's restrictions, age, high school education, work history with one employer, and vocational skills, he is permanently totally disabled. Exhibit G.
The employer's expert is Michael S. Campbell. He administered a Wonderlic Personnel Test, which disclosed an IQ of 114, and put the applicant in the 82nd percentile of scholastic and employment potential. Mr. Campbell also thought the problem the applicant had at Milwaukee Sign was probably an anomaly, and that under IME Brown's restrictions, the applicant had fairly full access to sedentary and light materials distribution jobs. He thought that even under Dr. Sellinger's restrictions, the applicant could work as a cashier, security guard, office and administrative support person, food and concession counter person, courier and messenger, counter clerk, parking lot attendant, correspondent and order clerk, claims and policy processing clerk, dispatcher, and procurement clerk. In summary, Mr. Campbell saw a 30 to 35 percent loss of earning capacity under Dr. Sellinger's restrictions and a 20 to 25 percent loss of earning capacity under Mr. Campbell's.
Ms. Prall then responded to Mr. Campbell's report. She stated that the jobs identified by Mr. Campbell should have been ruled out because they involved head rotation, which Dr. Sellinger advised against.
The ALJ found the applicant permanently and totally disabled. The respondent appeals.
The applicant's claim for permanent total disability in this case, of course, raises the "odd-lot" doctrine. Under the "odd-lot" rule, when a worker makes a
prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer.
Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id.
The supreme court has recently reiterated its adherence to the odd-lot doctrine in
Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29. In
Beecher, the court explained that the commission cannot require a worker to show evidence of a job search or efforts to find work as part of the
prima facie case. Id., 273 Wis. 2d at 165-66,
¶ 44, 168, ¶ 48, 172-73,
¶¶ 57, 58. In its decision, the court analogizes the odd-lot rule to the law of presumptions in civil cases, so that if a worker makes his or her
prima facie case, a presumption that the worker is permanently totally disabled arises.
Id., 273 Wis. 2d at 170-71, ¶¶ 53, 54. Once the presumption arises, in rebutting the presumption the employer bears a burden of persuasion on the issue of whether the worker is in fact employable and that jobs do exist for him or her.
Id., 273 Wis. 2d at 171-72, ¶ 55.
Given this framework and the facts here, the commission concludes the applicant has made a prima facie case that he is an odd-lot worker, even though he was able to retain employment for several years after his injury. The commission finds credible the restrictions of treating doctor Sellinger, who opined the applicant can only lift and carry 20 pounds and should avoid upward gazing and rotation of the head to the left and right. Factoring in the applicant's age, education, and work experience, the applicant has established he is an odd-lot worker as Ms. Prall opined.(1)
The employer's position is that Ms. Prall's opinion cannot serve as the basis for a finding of a prima facie case of odd-lot unemployability, as she equates avoiding head rotation and upward gazing as a total prohibition of those tasks. The commission does not agree. Ms. Prall accurately described the restrictions set by Dr. Sellinger, and then ruled out the jobs identified by Mr. Campbell as requiring head rotation, upward gazing or both in excess of what was permitted by Dr. Sellinger.
The commission cannot conclude that the applicant would work as a security guard -- or a counter clerk, in either a factory setting or in food service -- if he or she is trying to avoid turning his or her head or looking up. Mr. Campbell may have identified what seem to be the lightest jobs available, but they are not reasonable vocational options for the applicant. In short, Ms. Prall's report makes a prima facie case, and Mr. Campbell's report neither prevents the odd-lot presumption from arising nor rebuts it by showing work the applicant can do.
cc:
Attorney David L. Weir
Attorney Thomas M. Rohe
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