KEVIN TRUSK , Applicant
KOHLS DEPT STORES INC, Employer
LIBERTY MUTUAL 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.
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 29, 2005
truskke . wsd : 101 : 1 ND § 5.17
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant, whose job involved moving boxes of merchandise, hurt his back at work in 1991 and underwent a laminectomy in July 1991, followed by discectomy and fusion in February 1992. He returned to work full time, but suffered periodic back strains, and his lifting limit was reduced. Then, following the recurrence of back pain in November 1999, the applicant's hours were reduced. Still, he continued to work as the employer was willing to accommodate his restrictions.
The applicant then brought a claim for functional PPD at 40 percent and permanent total disability on a vocational basis, based on his occupational exposure through November 1999. The matter was heard by ALJ Cathy Lake in August 2001, and she issued her decision that same month. ALJ Lake credited the opinion of the applicant's treating surgeon, Dr. Block, that the applicant's then-current disability was related to the 1991 injury. She rejected the November 1999 date of injury. However, she adopted the opinion of the respondent's medical examiner, Dr. Keane, with respect to extent of functional disability of 20 percent.
ALJ Lake also rated loss of earning capacity at 40 percent noting the applicant could still work and that a functional capacity evaluation indicated the applicant could work in the "light" duty capacity, which allows frequent lifts up to 10 pounds and occasional lifts up to 20 pounds. See (functional capacity evaluation done at Columbia Work Fitness Center on September 13, 2000; See August 2001 hearing exhibit F.) Noting that further medical attention might be necessary, ALJ Lake issued an interlocutory order.
Neither party appealed ALJ Lake's decision. Thereafter, the applicant continued to work. He also continued to have pain, and sought additional treatment. His family doctor ordered another functional capacity evaluation (FCE); this was done in December 2001 at Orthopedic Hospital. See November 22, 2004 hearing exhibit H. It is noteworthy that that is undoubtedly the same clinic where the first functional capacity evaluation was done in September 2001 (albeit under the name "Columbia Work Fitness Center"), as the testing protocol and report are nearly identical in format, and the same occupational therapist signed both FCEs. Both the therapists administering the second FCE and the applicant's treating doctor were satisfied he gave a full effort in the second FCE. After completing the second FCE in December 2001, the applicant was assigned to the "low end of sedentary" job classification.
In sum, the applicant had a significantly lower functional capacity in the December 2001 FCE -- administered after the hearing before ALJ Lake -- than he had when the September 2000 FCE on which ALJ Lake relied was performed. Based on the reduced capacity as shown in the second FCE, the applicant's treating doctor, Frederick Deboe, M.D., took him off work entirely on February 25, 2002. Transcript, page 44.
The applicant then filed another hearing application, again seeking permanent total disability listing both the 1991 injury date and the February 2002 last day of work. Essentially, the applicant was claiming that work exposure through February 2002 was a material contributory causative factor in the progression of his condition.
A hearing on this second application was held before ALJ Thomas Jones in November 2004. Dr. Deboe testified at the second hearing before ALJ Jones that the applicant's condition declined medically between the dates of FCE (transcript, page 43), and that because of his continuing to work his symptoms were getting progressive worse (transcript, page 42, 44). Following the second hearing, ALJ Jones concluded that the applicant aggravated and accelerated his condition to the extent that he sustained a new injury with a last day of work on February 25, 2002. It is evident that ALJ Jones concluded that the continued work exposure through February 25, 2002 was at least a material contributory factor in the progression of the applicant's condition. He also found the applicant to be permanently and totally disabled since that date.
In explaining his decision, ALJ Jones indicated he credited Dr. Deboe's belief thus the decline in functional capacity between the two FCEs objectively established a worsening of the applicant's condition. Further, he noted that not only did Dr. Deboe feel the applicant should not be working, but that treating surgeon Block agreed.
The respondent appeals raising two points. First, that the evidence does not support a perm total finding, and second that any additional claim is barred by res judicata (now called claim preclusion) or similar concerns.
The commission turns first to the question of whether the applicant could even bring the claim for more disability given the terms of ALJ Lake's prior order. The commission is satisfied that he can.
A final worker's compensation order will dispose of all claims that arise from the litigated date of injury (1) (subject of course to Wis. Stat. § 102.18(4)(a).) An interlocutory order which specifically reserves jurisdiction over only some issues arguably reserves jurisdiction over all issues, including those that have been decided. See: American Motors Corp. v. Industrial Commission, 26 Wis. 2d 165, 170 note 6 (1965) (holding that res judicata does not apply to interlocutory orders of the commission). (2) Further, one of the recognized purposes of an interlocutory order is to preserve jurisdiction when an end of healing with an ascertainable amount of PPD has been reached, but it cannot be definitely said the injured worker will not have more PPD in the future. Larsen Co. v. Industrial Commission, 9 Wis. 2d 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973).
In this case, of course, the applicant is bringing a claim for more disability arising after the date of the first hearing based on a new date of injury, February 25, 2002, which occurred after the hearing held by ALJ Lake. The applicant cannot be regarded as "bringing a second suit on the same cause of action," nor is he attempting to "relitigate issues actually litigated and determined in a prior suit." ManuTronic v. Effective Management Syst, 163 Wis. 2d 304 (Ct. App. 1991). (3) In short, the commission is satisfied that neither res judicata (claim preclusion) nor collateral estoppel (issue preclusion) bars the applicant's claim for increased disability based on a new injury from additional work exposure.
The closer question is whether the applicant's condition actually is worse -- that is, whether he actually has additional permanent disability -- due to a new injury from additional occupational exposure.
Dr. Deboe testified at the hearing before ALJ Jones that the applicant's condition worsened after the hearing before ALJ Lake, and that it was the continued work that caused the condition to worsen. This is borne out by the first FCE that originally allowed the applicant to work in a light duty capacity in contrast with the second FCE which now allows only the low end of sedentary work. The commission, like the ALJ attaches significance to this, and to the fact that the therapists who administered the evaluation stated the applicant gave a full or maximal effort. Further, following the 1991 injury, the applicant has had two back surgeries, and several sprains over the years. Nonetheless, he continued to work until 2002, a fact which also enhances his credibility, and supports the ALJ's conclusions and findings in this case.
cc:
Attorney Kurt Van Buskirk
Attorney Thomas Lonzo
Appealed to Circuit Court. Affirmed June 8, 2006.
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