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


RANDALL BRAUN, Applicant

CUDAHY TANNING CO INC, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92007699


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.

ORDER

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

Dated and mailed February 26, 1997
braunra.wsd : 101 : 8  ND § 5.23

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

a. Issues; "functional disability."

The employer raises three issues on appeal: that the ALJ erred in fixing permanent partial disability on a functional basis at eighteen percent compared to permanent total disability rated by treating doctor Delahunt instead of twelve percent rated by the independent medical examiner Robbins; that no loss of earning capacity award should have been made under sec. 102.44 (6), Stats.; and that, if an award for loss of earning capacity is made, it should be limited to five percent.

The commission is satisfied that the record in this case supports the ALJ's award for permanent partial disability on a functional basis. The applicant underwent a laminectomy and fusion surgery in November 1992, and second surgery in June 1994 to remove the fusion hardware. Despite evidence of a solid fusion mass, the applicant testified credibly to pain leading to, and continuing after, the second surgery. Given the minimum rating for successful procedures under sec. DWD 80.32 (11), Wis. Adm. Code, the eighteen percent rating given by the treating physician is quite reasonable.

The remaining question, then, is the extent of loss of earning capacity (LOEC), if any. Injured workers with unscheduled disability normally are eligible for permanent disability based on loss of earning capacity as well as their functional loss. (1) Awards for loss of earning capacity are based on wage loss, age, education, training and a variety of other factors set out in sec. DWD 80.34, Wis. Adm. Code., that arise from the physical or mental limitations caused by a work injury. An injured worker who returns to work for the time-of-injury employer may not recover loss of earning capacity unless his actual wage loss exceeds fifteen percent. (2)    An employe who refuses such work from a time- of-injury employer, quits such work or is discharged from such work may also be ineligible for an award for loss of earning capacity depending on the facts of the refusal, quit or discharge. (3)

With respect to loss of earning capacity, the employer first contends that the applicant is disqualified from any award for LOEC because he quit the employer. The employer alternatively argues that, assuming the applicant is eligible for an LOEC award, he is not entitled to the 45 percent awarded by the ALJ. In support of the second contention, the employer points out that the applicant has very little current actual wage loss as he is working overtime in violation of the restrictions set by both the independent medical examiner and his treating doctor.

b. Quitting and the "85 percent rule."

To resolve the question of whether the applicant is disqualified from receiving any LOEC by quitting, depends to a large extent whether it was reasonable to believe the employer would accomodate his permanent restrictions on an ongoing basis. The appliant testified that he was told no work was available within his restrictions about the time he quit in September 1993. Maintenance supervisor Tewelis testified that the employer would have accommodated the applicant's restrictions permanently.

On the one hand, the record indicates the applicant was actually working eight hour days within his restrictions when he quit, leading one to question his explanation that he specifically asked for such full-time work when he quit. On the other hand, all the witnesses agree that the light assignment the applicant had when he quit (whether in the splitting department or the machine shop) was not permanent. Mr. Tewelis specifically testified that the applicant would eventually have to go back to the sewer treatment department. Yet it is clear that the normal sewer treatment job was beyond the applicant's restrictions. Indeed, he had tried the job and was taken off the work by Dr. Delahunt.

Moreover, it would not be unreasonable to infer that, if the employer could have accommodated both the hours and lifting restrictions in the sewer department, the employer would not have moved the applicant out of the sewer department in the first place. More to the point, Mr. Tewelis, whose memory of the September 1993 meeting is hazy, could not specifically deny telling the applicant in September 1993 that the employer had no permanent work for him.

Also significant, of course, is the applicant's unrebutted testimony that he asked about work again in 1995, and was again told none was available. Finally, while Mr. Tewelis testified that the applicant's permanent restrictions would have been accommodated in the sewer department, he admitted that to his knowledge no one has ever worked in the sewer department with restrictions.

On this record, the commission agrees with the ALJ that the applicant had reasonable cause for quitting his job with the employer. (4)     Consequently, sec. 102.44 (6)(a), (b) or (g), Stats., does not operate to bar LOEC claim.

c. Extent of LOEC.

The next question, then, is how much? Considering only the applicant's permanent restrictions (as agreed to by both the treating surgeon and the independent medical examiner), the applicant's expert sees a 45 to 50 percent LOEC and the respondent's expert rates a 36 to 46 percent LOEC. The 45 percent rating adopted by the ALJ is clearly at the intersection point of these opinions, and would normally be unassailable.

The problem here is that both experts also opine that if the applicant's earnings from his current job at Andrew Toyota are considered to supersede his permanent restrictions, the applicant's loss of earning capacity falls off precipitously. Considering the Andrew Toyota earnings, the respondent's expert fixed loss of earning capacity at five percent (for lost access), and the applicant's expert fixed it at only 25 to 35 percent.

The applicant began working at Andrew Toyota in June 1995, and so had worked there for 10 months by the time of the April 1996 hearing. He testified that he works between 60 and 70 hours per week. As noted above, this exceeds the restriction to forty hours per week in light work set by both Dr. Delahunt and Dr. Robins. The applicant also testified he has to exceed the 20-pound lifting limit and physical movement restrictions set by the doctors. He testified his job increases his back pain, and that he continues to look for another job that will give a similar income in fewer hours.

In explaining why she went with the 45 percent figure, the ALJ stated that she thought this figure best illustrated the applicant's lost capacity as opposed to simple wage loss. Her point is that in Wisconsin, LOEC awards are based on loss of earning capacity, which incorporates many factors beside actual wage loss. (5)      Indeed, an LOEC award is often more or less than an injured worker's actual wage loss determined by comparing pre-and-post-injury earnings.

Since it is the lost earning "capacity" that is measured, the ALJ reasoned, an injured worker who earns more by working in pain beyond his capacity should not be penalized. By the same token, an injured worker who chooses not work up to his full capacity is not rewarded with a relatively larger award based on increased wage loss of his own making.

The commission concludes the ALJ's reasoning, under the facts of this case, is sound. The supreme court has recognized that an LOEC award "is for all time," Northern States Power Co. v. Industrial Commission, 252 Wis. 2d 70, 76 (1974). That is why the award for permanent vocational loss is based on the more permanent (but less numerically certain) concept of loss of capacity, rather than the transient (but more numerically certain) concept of actual wage loss at a fixed point in time. While the applicant here may be able to work beyond his restrictions temporarily, the commission declines to reduce his permanent vocational loss on that basis.

cc: ATTORNEY MIRIAM R HORWITZ
ZUBRENSKY PADDEN HORWITZ & WEIR

ATTORNEY PEGGY E STRAUB
STILP & COTTON


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Footnotes:

(1)( Back ) Section 102.44 (3), Stats., and Pfister and Vogel Tanning Co. v. DILHR, 85 Wis. 2d 552 (1979).

(2)( Back ) Section 102.44 (6), Stats. Sometimes, this is referred to as the 15% or 85% rule.

(3)( Back ) Section 102.44 (6)(b) and (g), Stats.; Terry Ann Mallette v. Hartford Finishing Inc., WC claim no. 93036016 (LIRC, July 31, 1995), affirmed Dodge County circuit court case no. 95 CV 402 (March 22, 1996). See also Merrill Kummer v. Industrial Air Products, WC claim no. 92-019275 (June 30, 1995).

(4)( Back ) In many respects, this case is similar to LIRC's recent decision in Booker T. Worthy v. City of Milwaukee, WC claim no. 92058410 (LIRC, July 25, 1996).

(5)( Back ) In that case, the commission held that where the facts established that an employer would not have continued to supply work within the applicant's restrictions permanently, the "85 percent rule" did not apply to bar LOEC under sec. 102.44 (6)(a), Stats.

(6)( Back ) See sec. DWD 80.34, Wis. Adm. Code.