DEBRA M NOBLE, Applicant

CABELA'S INC, Employer

TWIN CITY FIRE INS 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 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.

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

Dated and mailed July 14, 2005
noblede . wsd : 175 : 2  ND § 5.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant suffered a work-related cervical injury on November 8, 2001 resulting in a herniated disc at the C5-6 level, temporary total and temporary partial disability to March 10, 2003, as well as ten percent permanent partial disability. The applicant contended she suffered a work-related cervical injury on November 8, 2001 while pushing some heavy boxes off of a conveyor belt. The employer contends the administrative law judge should have credited the opinion of Dr. Yuska, who examined the applicant on behalf of the employer. Dr. Yuska stated the work activity of pushing a box of wine bottles was not consistent with a direct injury to cause the applicant's current cervical condition, nor was it consistent with a precipitation, aggravation or acceleration of a degenerative process.

Dr. Yuska stated the disc problem and degenerative changes at C5-6 were already established prior to the incident and the work incident on November 8, 2001 might have at most caused a slight temporary flare-up of symptoms in the neck. Dr. Yuska did not recommend surgery for the applicant's complaints and he opined the applicant should have been able to return to work as of February 8, 2002 and after that time she was treated predominantly for her degenerative changes and not for any work-related flare-up of symptoms.

The evidence indicates the applicant suffered the work-related cervical injury while pushing some heavy boxes at work on November 8, 2001, and promptly reported the neck problems to the employer and began treating with Dr. Lund. The evidence indicates the applicant had a history of prior chiropractic treatment for neck problems with Dr. Lund in 2000 and 2001. However, the administrative law judge appropriately noted the applicant's treatment notes do not reveal a serious pathology in her neck prior to the work incident in November 2001. The applicant was not diagnosed with any disc herniation prior to November 8, 2001. Clearly the applicant's MRI and objective tests revealed preexisting cervical spondylolysis. However, Dr. McDonnell noted the applicant's MRI in April 2001 revealed a herniated disc at the C5-6 level. Dr. McDonnell, the applicant's neurosurgeon, subsequently opined the applicant's need for surgery was related to the work incident of November 8, 2001 when she felt the pulling sensation in her neck and had the immediate onset of headaches and neck pain following the work incident. Prior to the work incident the applicant had been asymptomatic and had not needed treatment for several weeks.

The commission credits the applicant's testimony of the nature and onset of her neck problems on November 8, 2001. Dr. Lund's notes reflect ongoing problems without resolution as do Dr. Hendrick's notes prior to referral to Dr. McDonnell in October 2002. The employer contends Dr. McDonnell did not have an accurate history and actually believed the applicant was injured in August 2002 while working in her husband's garage. However, a review of Dr. McDonnell's initial treatment notes in October 2002 reflect he was aware of the applicant's history of being injured while working for the employer on November 8, 2001, while pushing some heavy boxes filled with wine bottles. The commission finds the applicant's history of the nature and onset of her neck problems as given to various treating physicians to be consistent with her testimony.

The employer also contends the applicant was not entitled to any temporary disability after August 20, 2002 when she was discharged for violation of the employer's drug policy. The employer states it had work available for the applicant which she could have performed within her restrictions but she was unable to perform such work due to her own misconduct, and therefore should not be entitled to any ongoing temporary disability. The administrative law judge appropriately noted that although the applicant appeared to be discharged for good cause, the reliable and convincing medical and chiropractic evidence demonstrated that she remained within the healing period after the discharge. The commission notes that any time an employee has been returned to light duty and is subsequently discharged by the employer, the employer can make the argument that the applicant could be working and there is work available pursuant to Wis. Admin. Code § DWD 80.47, but the applicant is not performing the work due to his or her own misconduct. However, the administrative law judge appropriately noted that pursuant to Wis. Admin. Code § DWD 80.47 the employer and its insurer must continue to maintain the applicant's temporary disability benefits until she finds suitable employment until March 10, 2003, because it was the applicant's work injury and not the termination that is the cause of the applicant's economic loss after the discharge pursuant to Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 635 (1997).

In a follow-up case to Brakebush, in Wellsandt v. Chippewa County, Commission Decision dated November 28, 1997, the commission found that an employee who had returned to restrictive work following his injury, and was subsequently discharged for failing to replace the oil in the sheriff's deputy's car while working on a last-chance agreement, was eligible for continuing temporary disability benefits. The commission stated in Wellsandt there is support for reducing or denying temporary total disability benefits in an analogous situation of suitable light work for reasons unrelated to the work injury during the healing period. Such an exception to the Brakebush holding must rely on the conclusion the applicant's conduct with respect to the oil change in Wellsandt was the analytic equivalent of refusing an offer of work.

The commission reached a similar decision in Banach v. Bucyrus International Inc., Commission Decision dated March 23, 2001, in which the employer contended that once the employee had returned to work and was absent without valid reason, his actions were tantamount to a refusal or abandonment of his job, and therefore the employee was not entitled to temporary total disability benefits and under these facts this would be an exception to the general rule in the Brakebush decision. The commission determined in Banach the applicant's absence was not the analytic equivalent of a quitting or refusal of work. Further, in Race v. Emmpak Foods, Commission Decision dated January 14, 2005, the commission found an applicant who was discharged for a valid reason for a second violation of the employer's lock out/tag out policy was eligible for temporary disability since his actions were not the analytic equivalent of a refusal of work. In the current case the applicant testified she was discharged for use of the over-the-counter drug, ephedrine. The commission does not find the applicant's discharge for a violation of the employer's drug policy to be the equivalent of a refusal of work. Therefore the commission finds the administrative law judge appropriately awarded the applicant temporary disability benefits subsequent to August 20, 2002 to March 10, 2003.

cc:
Attorney Peter T. Waltz
Attorney Cori Lynn Prahl

Appealed to Circuit Court.

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