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

KOREEN R MCGOUGH, Applicant

HARLEY DAVIDSON INC, Employer

TRAVELERS CASUALTY & SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-024495


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 by the employer.

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 8, 2005
mcgouko . wsd : 175 : 2 ND § 5.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review the administrative law judge erred in determining the applicant suffered 65 percent loss of earning capacity as a result of her work-related back injury on November 24, 1993. The employer contends the administrative law judge violated the provisions of Wis. Stat. § 102.44(6)(a) and (b) in awarding a loss of earning capacity in this case. Specifically, the employer states the applicant was returned to work at 85 percent of her former wage and worked for seven years prior to her last day of work on February 6, 2002. The employer argues the applicant was not forced to quit her employment due to her work-related back injury and the residual restrictions, but rather was forced to quit work due to an unrelated knee injury which occurred at home. The employer states the other conditions in question are carpal tunnel syndrome, a right shoulder problem, left shoulder problems and a right knee injury, and the denial of the employer's right to rely upon Wis. Stat. § 102.44(6)(a) in this case is tantamount to an award for loss of earning capacity for these scheduled injuries, some of which are not work related.

However, there is no requirement under Wis. Stat. § 102.44(6)(b) the applicant's termination from employment following an unscheduled injury be due to that particular injury in order to qualify for loss of earning capacity claim. Under Wis. Stat. § 102.44(6)(a) when an injured employee claiming compensation for disability has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard for loss of earning capacity unless the actual wage loss in comparison with earnings at the time of the injury equals or exceeds 15 percent. In our current case it is clear the applicant returned to work at least 85 percent of her former wage, and in fact earned subsequent increases over and above the wage she had been earning at the time of her work injury. Under Wis. Stat. § 102.44(6)(b) if during the 12-year period of the statute of limitations the employment relationship is terminated by the employee because her physical and mental limitations prevent her continuing of such employment, the department may reopen an award and make redetermination taking into account loss of earning capacity.

Clearly, on its face, the statute does not require the physical or mental limitations preventing the applicant from continuing to work be related to the actual work injury which caused the limitations in the first place. The commission has specifically rejected that contention in the case of Armstrong v. Heyde Health Systems, Inc., Commission Decision dated May 26, 1998. The commission noted in the Heyde case Wis. Stat. § 102.44(6)(b) does not require the physical limitations causing loss of employment to be attributable to a Chapter 102 injury in order to establish the right to bring a loss of any capacity claim. The commission stated in the Heyde case the applicant lost her employment with the employer due to her physical limitations, and that was all that was required in order to bring a loss of earning capacity claim. In the Heyde case the applicant was bringing a loss of earning capacity claim after being forced to quit her job due to non-industrial compression fractures which occurred many years after her initial work injury. Similarly, in our current case the applicant was forced to terminate her employment due to her physical limitations caused by a non-work-related knee injury on February 6, 2002, as well as shoulder problems and depression, in addition to any causal relationship to her ongoing back pain and restrictions. The commission finds the applicant is entitled to bring a loss of earning capacity claim pursuant to Wis. Stat. § 102.44(6)(b).

The commission credits Dr. Robbin's assessment the applicant has restrictions of 25 pounds lifting with no repetitive bending or twisting, and alternative sitting and standing due to her work-related injury which would allow her to continue to perform some work. Mr. McReynolds, the applicant's vocational expert, opined in his report dated April 2, 2003, the applicant suffered a loss of earning capacity of 65 percent as a result of her work injury. Mr. McReynolds noted the applicant has a high school diploma and reasonable academic skills, but no formal training or credentialing that would lead to alternative employment. Based on Dr. Robbin's assessment as well as Mr. Reynold's report of April 2, 2003, and given the applicant's physical restrictions, education, training, and the other factors contained in Wis. Admin. Code § DWD 80.34, the commission finds the applicant suffered 65 percent loss of earning capacity as a result of her work injury.

cc:
Attorney John A. Griner
Attorney Martin D. Stein



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