MICHAEL D SIMMONS (DEC'D), Applicant
c/c BRENDA SIMMONS
JOHN VERIHA TRUCKING, Employer
FIREMANS FUND INS CO, Insurer
The applicant(1) filed an application for hearing in March 2003, seeking compensation arising from a February 2, 2001 back injury. No hearing was held, and an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision based on the exhibits in a list stipulated to by the parties. In addition, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $920.05, and that the applicant suffered a compensable injury on or about February 2, 2001. Further, the respondent conceded and paid certain periods of temporary disability, and permanent partial disability at twenty percent to the body as a whole. At issue is the claim for a death benefit based on additional permanent partial disability, as described more fully below.
The ALJ issued his decision on July 28, 2005. Both parties filed timely petitions for commission review.
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 makes the following:
1. Facts.
The applicant was born in 1964 and worked for the employer as a truck driver. As noted above, he filed an application seeking compensation for a February 2, 2001 work injury. He died on August 6, 2003, from causes unrelated to that work injury.
Before the February 2, 2001 work injury, the applicant had suffered thoracic or dorsal spine strain or sprain at work in June 2000. After treatment, he returned to truck driving work subject to a 50-pound lifting limit and medium work. The applicant was able to continue working as a truck driver despite these restrictions.
The current matter arose when the applicant hurt his back in a work-related motor vehicle accident on February 2, 2001. In June 2001, the applicant filed an application for hearing with respect to the work injury. In his application, the applicant indicated a claim for compensation including permanent partial disability, loss of earning capacity (LOEC), and vocational rehabilitation benefits (DVR).
The applicant underwent a surgical fusion procedure at L4-5 and L5-S1 on July 2, 2001, to treat the February 2, 2001 work injury. Evidently, there was some problem with the instrumentation, and he underwent additional surgeries on October 19, 2001 and October 26, 2001. An infection followed which was treated with antibiotics.
In December 2001, the applicant saw Carl F. Eiben, M.D., for rehabilitative treatment. The applicant was still having a lot of pain--Dr. Eiben diagnosed bilateral irritative lumbar radiculopathy and chronic pain syndrome. The doctor wanted to start therapy, and recommended he see a doctor for pain management.
On February 14, 2002, the applicant returned to Dr. Eiben who reported he was making good progress, though he expected a long rehabilitative process. The doctor felt the applicant might need vocational rehabilitation at some point in the near future. Dr. Eiben noted increased pain in late February 2002, and expressed concern with getting the applicant "on a fairly strict timeline for weaning his narcotics and looking into transitional work."
On March 6, 2002, Dr. Eiben noted "pain behavior, but not as much as I had seen at times from him in the past." Dr Eiben noted that if it was okay with the surgeon who did the fusion, he would have the applicant undergo a functional capacity assessment, and base the return to "transitional work at Goodwill" on that. The doctor listed the long term plan to "wean him off narcotic analgesics and get him into some type of vocational program." On March 25, 2002, Dr. Eiben opined the applicant was improving, and he thought it appropriate to start weaning him from his medications. On March 27, 2002, Dr. Eiben stated:
I think he is probably going to plateau, at least at this point at a level below where he would have to be to drive his truck and we will probably have to look at light duty work or vocational evaluation.
Thereafter, in the spring and early summer of 2002, the applicant underwent what Dr. Eiben described as a "mini FCA" and he began the transitional work at the Goodwill.
On September 23, 2002, Dr. Eiben noted chronic low back and radicular pain, with good days and bad days. After the appointment, the doctor noted he would try to get the applicant back to work at Goodwill, and continue with an Aftercare type of program. The applicant had increasing low back pain later that fall, and a myelogram CT scan was ordered. That scan did not show anything new, and the doctor opined everything looked fine from a fusion and hardware standpoint.
In January 2003, Dr. Eiben noted continuing radicular pain, and indicated he wanted to have the applicant recondition in a therapy program before doing a functional capacity evaluation. On February 7, 2003, the doctor noted the applicant was doing about the same painwise, and opined he had reached the point of maximum medical improvement.
On March 5, 2003, Dr. Eiben saw the applicant on follow-up to review his functional capacity assessment. The doctor noted the applicant was "doing about the same painwise" and was continuing with his exercise program. Regarding the applicant's functional capacity, Dr. Eiben wrote:
I reviewed his functional capacity evaluation. This shows ability generally, and for sure, in the light work activity. Possibly, he could work up to medium activities but I think that less of a likelihood. I think he could go up to 30 pounds now at this point and if we needed 50 pounds, we would have to look at little bit more therapy or exercise time. I am going to, therefore, recommend the following release as I feel he has reached maximum medical improvement.
1. Can participate in light to medium work, 30 pounds on average but possibly could work up to 40 or 50 pounds, if necessary, depending on the job.
2. He will need to change positions between sitting, standing and walking every 30 to 40 minutes.
3. He can occasionally climb stairs and walk and should squat only rarely. He has good grip.
On March 8, 2003, the applicant filed a second hearing application with the department (his first application having been dismissed with leave to refile.) The second application specified a 25 percent permanent partial disability rating and again listed "DVR LOEC" in the "other" compensation box.
On March 20, 2003, Dr. Eiben saw the applicant for a new problem: the acute onset of right-sided arm pain that had begun when he awoke eight days earlier. The doctor assessed probable irritative cervical radiculopathy for this condition. That diagnosis was later confirmed with electromyography.
After the onset of these cervical symptoms, which the applicant's attorney concedes are unrelated to his work injury, Dr. Eiben wrote one more functional capacity evaluation dated May 12, 2003 (Exhibit G) setting out permanent restrictions. Under these restrictions, the applicant could sit, stand, and walk at up to an hour at a time. For an entire day, he could sit a total of four hours, and stand and walk for a total of two hours. This evaluation also allowed for lifting and carrying up to 20 pounds, occasional bending, twisting, squatting and reaching, and no crawling or climbing.
A few months later, the applicant died.
Treating doctor Eiben offers medical opinion in a practitioner's report dated May 12, 2003, at Exhibit B. Regarding causation, Dr. Eiben indicated the February 2, 2001 injury precipitated, aggravated, and accelerated a pre-existing degenerative condition beyond normal progression, referring back to his notes for more explanation. Regarding temporary restrictions, the doctor referred back to his March 5, 2003 note and noted "light work activity." Regarding permanent restrictions, the doctor wrote "possibly work up to medium work activities." Dr. Eiben went on to rate permanent partial disability as follows: 15 percent for a dorsal condition dating back to the 1990s, 20 percent for the 2001 fusion surgery at L4-5 through L5-S1, and 15 percent for the 2003 cervical radiculopathy. He explained the lumbar spine disability by referring to a 25 degree limitation in range of motion.
The employer retained Dr. Burgarino who has submitted several reports providing expert medical opinion on behalf of the employer. In the first, dated July 3, 2001 Exhibit 1, (Dr. Burgarino) agreed the applicant would need a two level fusion to ameliorate the pain syndrome emergent from the traumatic spondylosis condition caused by the February 5, 2001 motor vehicle accident. He added the surgery probably would not have been necessary had it not been for the work injury.
In a second report dated August 7, 2002 (Exhibit 3), Dr. Burgarino opined the applicant's care to that point had been appropriate. He noted that he believed the applicant continued to heal, but expected a November 1, 2002 healing plateau date. Dr. Burgarino set temporary restrictions allowing four hour per day work with up to 25 pounds lifting, and certain positional restrictions before then. He recommended continuing physical therapy and a work hardening program until then.
In a third report dated January 2, 2003, (Exhibit 4), Dr. Burgarino issued another report saying it was too early to find a healing plateau or rate permanent disability, but that he expected to be able to on February 1, 2003 after further testing.
In a fourth report dated January 14, 2003 (Exhibit 5), Dr. Burgarino opined the applicant would reach an end of healing on February 1, 2003, with a likely two percent permanent partial disability to the body as a whole from the work injury. The doctor felt the applicant could return to work on February 1, 2003, but should avoid excessive squatting, bending, and lifting more than 20 pounds.
In a fifth report dated February 11, 2003 (Exhibit 8), Dr. Burgarino revised his permanent partial disability estimate to five percent for the February 5, 2001 injury at issue here (in addition to two percent rated for the prior June 2000 thoracic injury.) He reiterated the restriction against squatting, bending, and lifting more than 20 pounds.
In a sixth report dated June 2, 2003 (Exhibit 6), Dr. Burgarino opined the applicant sustained 10 percent permanent partial disability for the two-level fusion done to treat the February 5, 2001 injury, not five percent as he stated in his first revised rating.
In a seventh and final report dated July 8, 2003, Dr. Burgarino opined the cervical spine injury or disease (that the applicant began complaining of on March 20, 2003) was unrelated to the work injury.
After the applicant's death, both parties arranged for estimates of loss of earning capacity by vocational experts.
The applicant's expert is Daniel Oswald, and his September 1, 2004 report is at Exhibit A. Based on Dr. Eiben's May 12, 2003 practitioner's report and the functional capacity evaluation from that date, Mr. Oswald described the applicant's restrictions as limiting the applicant to light/and or sedentary work. He opined he could not have returned to work as a truck driver, but could have done such work as parking lot attendant, cashier, laundry worker, or gatekeeper. He opined the pay range for these types of job is $6 to $8 per hour, leaving the applicant with a 70 percent loss of earning capacity.
In a follow up report dated June 29, 2005 (Exhibit F), Mr. Oswald further explained his rating as follows:
Please note, Dr. Eiben assigned light duty restrictions and the possibility of working up to a medium level. These restrictions are apparently related to the injuries Mr. Simmons sustained on 2 February, 2001. Dr. Burgarino also assigned light duty restrictions relative to this date of injury. In Dr. Eiben's report dated 5 March 2003, Dr. Eiben ... reviewed his functional capacities evaluation. He reports that this showed general ability and definite functional capacity in light work activity. Possibly he could work up to medium work activities, but Dr. Eiben felt that this was less of a likelihood....Taking into account his need to change positions between sitting, standing, and walking every thirty to forty minutes and his assessed abilities with regard to occasionally climbing stairs and squatting rarely, it is my opinion that Mr. Michael Simmons would be limited to light work activities as of 5 March 2003, and could possibly work up to medium work activities with more physical therapy. As no additional physical therapy and or exercise was provided one can only assume the possibility of working up to forty to fifty lbs dependent on the individual job situation. My opinion was based upon the reports of Dr. Eiben and Dr. Burgarino which limit Mr. Simmons to sedentary and light work activity with the possibility of moving to medium work activity given additional therapy.
The employer's expert is Karen A. Boehm who gave a hypothetical vocational evaluation on October 13, 2004 (Exhibit 7.) She noted the difficulty in assessing the loss of capacity to earn from the February 2001 work injury due to the subsequent applicant's death which foreclosed any earning capacity. Referring to the factors set out in Wis. Admin. Code DWD § 80.34, she noted the applicant's age at death, the relevant labor market, his 16-year history of truck driving, and his wage at the time of death, but did not know if he conducted a job search, what his educational level was, and whether he would have relocated to secure employment.
Nonetheless, pointing out that Dr. Eiben had assigned light duty with the possibility of working up to medium duty while Dr. Burgarino had assigned light duty restrictions for the February 2001 date of injury, Ms. Boehm went on to opine that career alternatives were available within those restrictions (as set out in her report at page 4). She estimated 50 to 55 percent loss of future earning capacity assuming light duty restrictions and 30 to 45 percent assuming medium duty restrictions.
In a follow-up report dated June 20, 2005 (Exhibit 16), Ms. Boehm noted Dr. Eiben's reference to a 50-pound lifting restriction in the report he had prepared for the earlier June 2000 thoracic/dorsal spine strain injury preceding the work injury at issue here. In that report the doctor had released the applicant to medium duty with a fifty pound limit, and the applicant had in fact returned to truck driving work. On this basis, Ms. Boehm continued, if the applicant could have again progressed to medium duty following his February 2001 injury, there would be no loss of earning capacity.
2. Posture; issues
Following the applicant's death, the respondent wrote to the Worker's Compensation Division suggesting there could be no claim for loss of earning capacity as a matter of law, as such a rating is supposed to consider factors under Wis. Admin. Code § DWD 80.34 such as a worker's willingness to retrain, look for work, consider relocation, all of which were foreclosed by the applicant's death. Exhibit 18. No hearing was actually held; this matter was decided on the record outlined above and a case summary outlining the claims and defenses.
In his July 28, 2005 order, the ALJ found the respondent liable for permanent partial disability on a "functional" basis at 25 percent. However, the ALJ declined to find any liability for permanent partial disability on a "vocational" basis for loss of earning capacity. Both sides appeal. The respondent wants the functional permanent partial disability reduced to 20 percent. The applicant agrees that the functional permanent partial disability is only 20 percent, but desires the commission to find the respondent liable for additional permanent partial disability on a vocational basis for loss of earning capacity.
3. Discussion.
Given the medical record, including the opinion of Dr. Eiben, and the agreement of the parties on this issue, the commission finds the respondent is liable for permanent partial disability on a functional basis at twenty percent compared to permanent total disability. This leaves the question of additional compensation for permanent partial disability on a vocational basis for loss of earning capacity.
The commission notes at the outset that any liability for compensation for loss of earning capacity will be paid out--together with the unaccrued functional award--as a death benefit under Wis. Stat. § 102.47(2). That statute provides:
102.47 Death benefit, continued. If death occurs to an injured employee other than as a proximate result of the injury, before disability indemnity ceases, death benefit and burial expense allowance shall be as follows:
...
(2) Where the injury proximately causes permanent partial disability, the unaccrued compensation shall first be applied toward funeral expenses, not to exceed the amount specified in s. 102.50. Any remaining sum shall be paid to dependents, as provided in this section and ss. 102.46 and 102.48, and there is no liability for any other payments. All computations under this subsection shall take into consideration the present value of future payments. If there are no surviving dependents the amount payable to dependents shall be paid, as provided in s. 102.49 (5) (b), to the fund created under s. 102.65.
In other words, because the applicant here did not die from the work injury, his dependent's death benefit equals the unaccrued part of the applicant's permanent partial disability compensation as of the time of his death.(2) The ALJ found the employer liable only for permanent partial disability based on the functional ratings estimated by Dr. Eiben following the applicant's surgery. The ALJ did not find the respondent liable for any permanent partial disability for loss of earning capacity. As a result, his award limits the death benefit to the unaccrued functional permanent partial disability.
In support of the ALJ's decision not to award permanent partial disability for loss of earning capacity, the respondent points to two bases cited by the ALJ in his decision: (1) Given the subsequent cervical disability, and its apparent effect on the May 2003 FCE reflecting a reduced lifting limit to 20 pounds, it is not clear that the applicant actually had or would have had any loss of earning capacity related to the February 2, 2001 lumbar injury; and (2) In March 2003, prior to the onset of the cervical symptoms, Dr. Eiben opined the applicant might have been able to return to medium duty which makes any award for loss of earning speculative.
However, Dr. Eiben referred to the increase to medium duty as only a possibility in his March 5, 2003 note. Employer-retained doctor Burgarino limited the applicant to 20 pounds lifting following the work injury, not the fifty-pound restriction the applicant had been working under before his February 2001 injury. Further, only the May 13, 2003 functional capacity evaluation was written after the applicant began to experience symptoms in his cervical spine. The other documented work restrictions (including not only Dr. Eiben's March 5, 2003 note setting out the work restrictions on which the vocational experts rely, but also Dr. Burgarino's January 11 and February 14, 2003 reports) preceded the cervical symptoms. In short, the applicant was able to drive a truck until his work-related fusion procedure resulted in light duty restrictions as set even by the employer's own doctor. Only the possibility of further improvement was noted, and then by a doctor in a report that nonetheless found an end of healing or maximum medical improvement. The subsequent cervical condition and the possibility of improvement do not support denial of compensation for permanent partial disability on a vocational basis in this case.
There remains the legal question of whether a deceased worker's dependents may receive death benefits based on loss of earning capacity. The respondent asserts that there is no legal basis for such an award.
In deciding this issue, the commission notes first that as the applicant points out, Wis. Stat. § 102.47(2) does not distinguish between permanent partial disability compensation awarded on a functional basis as opposed to a vocational basis for loss of earning capacity. The commission also notes the supreme court's holding in the case of City of Milwaukee v. Industrial Commission, 185 Wis. 307 (1924). There, a worker hurt his shoulder in a conceded injury for which the employer was paying temporary disability compensation and medical expenses up until the applicant died of apoplexy. His widow filed an application seeking additional compensation. The commission awarded additional compensation on the basis that--had he not died--the worker would have remained temporarily disabled for an additional eight weeks and four days had he lived and would have permanent partial disability at thirty percent at the shoulder. It paid this compensation to the worker's widow--with the permanent partial disability paid as a death benefit after making a deduction (allowed under the law at the time) based on age.
The supreme court affirmed. The statute at issue in City of Milwaukee (a predecessor of Wis. Stat. § 102.47(2)) specifically provided for, where the injury did not cause death, a death benefit "as shall fairly represent the proportionate extent of impairment of earning capacity ... caused by such disability." Milwaukee, at 185 Wis. 209 (citing then-Wis. Stat. § 102.09(4)(b).) The court reasoned that while the payment under then-Wis Stat. § 102.09(4)(b) was termed a "death benefit," it was not really a death benefit in the sense of benefit based on the worker's death, but rather simply a vehicle for paying out what would have been due the applicant if he had not died.
The court continued:
The title and right to the entire compensation both for permanent partial and temporary total disability was as much in him at the time of his death as would have been title to the funds if the award had been made and paid before his death. The award does not fix the right to, only determines the amount of, the compensation for the injury. The right to the compensation is fixed by the statute, the amount is merely the administrative detail. If the provision here in question had not been in the statute, the fund here awarded might have properly become a part of his estate to be so administered, but as to funds of this nature the legislature may well provide, as we deem it they here have, that such funds shall go directly to dependents without the necessity of other procedure.
The supreme court revisited the City of Milwaukee case in State v. LIRC, 136 Wis. 2d 281 (1987). There, the injured worker retired in 1971, totally disabled from a work injury. However, he never filed for permanent total disability indemnity. He died from an unrelated cause in 1979. Thereafter, the worker's widow filed for both death benefits and the permanent total disability indemnity that would have accrued to the applicant's death had the applicant filed for it. The widow's death benefits were litigated, but were ultimately conceded and paid.
In State v. LIRC, then, the only issue before the supreme court was the widow's entitlement to the permanent total disability indemnity from the date of retirement to the date of death that the injured worker himself had never claimed. The commission concluded the widow could not bring the claim, as she had only the right to the death benefits, not compensation that would have belonged to the applicant during his life had he brought the claim. Discussing the earlier City of Milwaukee case, the court stated:
Thus, Milwaukee appears to stand for two propositions.... First, the spouse has an independent right to death benefits under the act. Spouses who are entitled to death benefits when a permanently partially disabled employee dies do not forfeit the benefits granted to them by the death benefits statute (i.e., the balance of permanent partial disability payments) if the deceased employee failed to file a claim for permanent partial disability benefits during his lifetime. Second, the spouse of a deceased, disabled employee is entitled to the unpaid balance of an award for temporary total disability made during the employee's lifetime.
State v. LIRC, at 136 Wis. 2d 293.
This case, of course, is distinguishable from State v. LIRC in two very important respects. First, the applicant himself brought the claim for loss of earning capacity and was in the process of litigating it at the time of his death. Second, the applicant's dependents are not trying to get unclaimed permanent total disability compensation that accrued prior to the applicant's death in addition to the death benefit. Rather the applicant's dependents are trying to establish that the applicant sustained permanent partial disability based on loss of earning capacity to fix the amount of their death benefit.
Accordingly, the commission is guided by the City of Milwaukee case. While City of Milwaukee was a case of scheduled disability, the applicable statute at the time referred to a death benefit based on "impairment of earning capacity." Further, the courts have recognized that the permanent disability awards based on the schedule in Wis. Stat. § 102.52 have an award for loss of earning capacity effectively built in. Mednicoff v. ILHR Department, 54 Wis. 2d 7, 10-16 (1972) (holding that where the injury is scheduled or relative, the loss of earning capacity is inherent in the schedule). Finally, while current Wis. Stat. § 102.47(2) refers to the unaccrued compensation for permanent partial disability rather than "impairment of earning capacity" the courts have consistently recognized that an award for an unscheduled permanent partial disability must be based on a prediction of loss of earning capacity.(3) Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d. 522, 528 (1976); Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947).
In short, the commission concludes the law per se does not support limiting an award under Wis. Stat. § 102.47(2) to permanent partial disability for unscheduled injuries on a functional basis only. In a case of unscheduled disability, a death benefit award under Wis. Stat. § 102.47(2) may be based on unaccrued compensation for permanent partial disability from loss of earning capacity.
This leaves the asserted due process or proof problems arising from the applicant's death before the loss of earning capacity claim was fully litigated. On this point, the respondent observes that since the applicant died, there is no way to determine what his actual wage experience would have been by the time of the hearing. The respondent also objects that it cannot examine the applicant and asserts that its vocational expert (Boehm) gave only hypothetical figures on the facts she had.
However, while Ms. Boehm noted that she could not take into account the applicant's efforts to find employment, to relocate, or to rehabilitate himself at the point when she wrote her report, the fact is she did not say DVR retraining or relocation to find employment would have been warranted for the applicant given his labor market or vocational history had he not died. Further, while it is possible the applicant may have found work as of the hearing had he not died, post-injury wages are only a factor to be considered in rating loss of earning capacity under Wis. Admin. Code DWD � 80.34(1). The fact that a worker is able to find work with another employer despite his disability does not extinguish a claim based on loss of earning capacity; awards are routinely made based on a prediction of impairment of earning capacity "for all time",(4) even though a worker may obtain relatively high-paying work at some future date after the award is made. Finally, as set out below, it is improbable that the applicant would ever have returned to employment as lucrative as truck driving given the restrictions for his work injury as set by the medical experts. An award for permanent partial disability from loss of earning capacity is appropriate based on the record in this case.
The last question is the amount of the award. The commission concludes the applicant sustained a 50 percent loss of earning capacity from his work injury (into which the rating for permanent partial disability on a functional basis is merged), based on the rating given by Ms. Boehm on behalf of the respondents based on the light duty restrictions. The applicant's ability to lift more than the 30 pounds set by Dr. Eiben was hypothetical, particularly in light of more limiting restrictions set by employer-retained Dr. Burgarino. Further, the applicant also had significant positional restrictions set by both Dr. Eiben and Dr. Burgarino. Even if the applicant might have become able to do medium duty work in terms of lifting had he lived and not suffered the cervical injury, given these positional restrictions it is improbable he would have returned to truck driving.
4. Award
The commission therefore concludes the applicant sustained--and the respondent is liable for--permanent partial disability at 50 percent compared to permanent total disability under Wis. Stat. § 102.44(3) and 102.47(2). Compensation shall be based on the conceded average weekly wage of $920.05, and paid out under the terms of the stipulation entered into by the parties (including his executor and his dependent's guardians) in September 2005, and attached to Mr. Domer's brief on behalf of the applicant dated October 14, 2005. The matter shall be remanded to the department for calculation of the award.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part. The matter is remanded to the Worker's Compensation Division of the Department of Workforce Development for further appropriate action, consistent with this decision.
Dated and mailed January 26, 2006
simmomi . wrr : 101 : 2 ND 6.2 6.9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
As no hearing was held, a credibility conference with the ALJ was unnecessary.
cc:
Brenda Simmons
Attorney Thomas M. Domer
Attorney Joseph J. Ferris
Abby Butler
Jennifer Lattis
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