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

LAWRENCE LANG, Applicant

CONSOLIDATED PAPERS INC, Employer

CONSOLIDATED PAPERS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89048039

The administrative law judge issued her findings of fact and interlocutory order in this case on October 29, 1996, following a hearing on September 11, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage resulting in the maximum compensation rates, and an August 4, 1989 compensable injury. The respondent also conceded and paid certain periods of temporary disability, and permanent partial disability at eight percent compared to disability to the body as a whole amounting to $10,000.

The issues at the hearing, and now before the commission, are the nature and extent of disability beyond that conceded. Specifically, the applicant contends he is permanently and totally disabled as a result of the work injury.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside her Findings of Fact and Interlocutory Order, and substitutes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1940. He was in the army for two years until 1965 or 1966, and earned a GED while in the service. He began working for the employer shortly after his honorable discharge from the army.

On August 4, 1989, the applicant was injured when he fell from the top of a machine that was nine feet high. On the way down his face struck a return water line, and then he landed on the concrete floor on his right shoulder and the right side of his head. In addition to a head injury from the fall, he fractured a wrist, hurt his shoulder and broke a tooth.

The applicant was taken by ambulance to St. Joseph's Hospital, which is evidently part of the Marshfield Clinic. The applicant arrived in a collar and on a backboard, and was described as "alert and disoriented." Imaging tests done on August 4 showed a skull fracture; later imaging tests showed hemorrhagic contusion, and encephalomalacia.

On examination, it was noted the applicant was awake but confused. When asked where he was, the applicant spoke inappropriately about machines at work. Blood was noted in his ear canal. The initial diagnosis was simply head injury from the fall, later the diagnosis was traumatic brain injury with linear right temporal skull fracture, right parietal skull fracture, right parietal contusion and left hemorrhage temporal contusion.

Two weeks after his admission to the hospital, on August 18, 1989, an examining neuropsychologist, John Ehrfurth, Ph.D., reported that the applicant continued to be significantly compromised from a cognitive standpoint. He had substantial higher cognitive deficits: for example he did not know his age or date of birth, why he was hospitalized, and had only a rough orientation as to time. About this time, the applicant also began treating with Steven Lamberson, M.D., of the hospital's Acute Rehabilitation Service.

A "fair bit of improvement" was noted by August 25, 1989. The applicant was fully alert and responsive. However, he continued to have significant cognitive defects, and was diagnosed as having post traumatic brain injury with significant cognitive defects. He was making excellent progress as of August 29, 1989, but remained in the hospital. He was finally discharged on September 9.

The applicant continued to treat with Marshfield Clinic doctors regularly for his cognitive, wrist and shoulder problems. In January 1990, Dr. Ehrfurth described the applicant as functioning within the broad range of normal, but with continuing mild to moderate difficulties with short-term memory. Lingering neuropsychologic and neurobehavioral deficits were noted. Dr. Lamberson recommended he wait about three months before undergoing a driving evaluation before resuming driving. He also stated that a return to work date depended on the applicant's surgery for shoulder impingement symptoms.

In March 1990, the doctor treating him for the shoulder problem (Keenan) suggested the applicant's cognitive disability had improved to the point he could probably return to work in about six weeks. This would be about three months after the shoulder surgery.

In April 1990, the applicant returned for re-evaluation of his shoulder, and was cleared to return to work subject to lifting restrictions and a restriction against working at unprotected heights. The applicant returned to work later that month.

In May 1990, the applicant returned to Dr. Lamberson who had been treating him for his head injury. The applicant complained of persistent memory difficulties, and that his mind wandered. Dr. Lamberson noted that while the applicant would not be able to perform the number and rate of tasks that he had in the past, he should be able to function successfully at work. The doctor concluded that work was very therapeutic, and that a final evaluation would be done in four months.

On September 30, 1990, Dr. Lamberson noted the applicant returned to work on April 30, and had not missed a day of work. The doctor did note some physical and mental fatigue, typical with head injuries, residual memory loss, and dizziness. The doctor also noted permanent changes shown in a CT scan of the applicant's head. Dr. Lamberson rated an eight percent permanent partial disability to the body as a whole for the head injury, and restricted him from working at unprotected heights.

The applicant continued to work. However, he contacted Dr. Lamberson's office on March 7, 1991, complaining that he would become light-headed and sweat profusely with activity. Dr. Lamberson did not feel this was related to the head injury, and urged him to contact his local physician. The applicant consulted with Dr. Starr, the employer's medical director, about the problem.

Dr. Lamberson's next note is dated July 22, 1991. He noted that Dr. Starr reported the applicant was back to work, but was slow in his job tasks, complained of pressure in his head, and experienced intermittent periods of confusion. Dr. Starr asked Dr. Lamberson to re-examine the applicant to see if these problems were new or related to the applicant's injury. Accordingly, Dr. Lamberson set up an appointment with Susan Mickel, M.D. However, Dr. Lamberson felt that the problems concerning Dr. Starr were indeed related to his TBI [traumatic brain injury] and that his symptoms were aggravated by fatigue.

Dr. Mickel examined the applicant on September 9, 1991. She noted the traumatic brain injury occurring on August 4, 1989 when the applicant fell on his back and occiput with a linear right temporoparietal skull fracture, a right parietal skull fracture, a right parietal contusion, and a left temporal hemorrhagic contusion. Dr. Mickel also reported that the applicant lost about sixteen days of memory from the injury.

Her diagnostic impression was: status post traumatic brain injury, left temporal and right parietal hemorrhagic contusions; depression; headaches and dizziness; and episodic tightness in the chest. She recommended anti-depressant medication and that he be evaluated for his chest pain.

The applicant next sought treatment for neurologic problems on July 29, 1992 when he received a follow-up neuropsychologic examination from Dr. Ehrfurth. Dr. Ehrfurth gave a concise recounting of the applicant's treatment to that date. The doctor noted subjective complaints of deteriorating short term memory, heat sensitivity, fatigue, headache and dizziness. The applicant's wife complained of increased irritability, diminished social skills, and loss of sensitivity. He recommended referral to a mental health expert. He then administered several tests of cognitive function.

According to Dr. Ehrfurth the tests disclosed a few troublesome findings from a cognitive viewpoint. Specifically, he noted a significantly deteriorated performance of a test measuring abstraction, nonverbal reasoning, and mental flexibility, when compared to January 1990. He also noted at least a mild degree of deterioration of spatial reasoning, and more generally in intellectual function. In other areas, the applicant showed no signs of further deterioration. Dr. Ehrfurth noted that the applicant appeared to put forth a solid effort, and did not attribute the declining results to lack of motivation. Dr. Ehrfurth summarized by noting that the applicant would probably do well with routine tasks, but would have difficulty when called on to problem solve in novel situations.

After another evaluation on October 4, 1993, Dr. Ehrfurth noted no further deterioration compared to the July 1992 tests. The doctor's diagnosis was status post traumatic brain injury with stable neuropsychologic defect.

The applicant then returned to Dr. Mickel in May 1994. She noted a self-referral, and that the applicant did not recall previously seeing her in September 1991. She noted he complained of being tipsy and dizzy, a feeling exacerbated by sudden changes in position. He also complained of nausea and a feeling of pressure in the front of the head. She noted he was working, but that he had missed work on several occasions for this condition, and that he told her his boss was concerned about his performance.

Dr. Mickel's assessment was status post traumatic brain injury, with residual neurobehavioral deficit; headaches and dizziness, postconcussional, chronic, and non-progressive. She explained that the applicant's symptoms had not changed. She opined the applicant only thought the condition was worsening because he could not remember his past condition, and because his new girlfriend was concerned.

Dr. Mickel ordered an MRI, which was done in July 1994 and showed a left temporal encephalomalacia in the area of his contusion. The MRI also showed a metallic object in the applicant's eye (this had shown up in the earlier CT scan, too.) Dr. Mickel noted Dr. Ehrfurth's October 1993 note that the applicant had a stable and persistent neuropsychologic deficit. She diagnosed a status post severe traumatic brain injury with residual neurobehavioral deficit, postconcussional symptoms of dizziness and headache.

Dr. Mickel then told the applicant that the usual clinical course of traumatic head injury is that the condition is worst at the time of the injury, with gradual improvement not deterioration. She noted that he had been back at work for a year, but wanted her to provide support for a disability that arose at the time of injury. She thought that if the applicant in fact deteriorated, it was due to intervening psychological factors. She prescribed antidepressants, but he refused them.

About a year later, in June 1995, the applicant treated with a colleague of Dr. Mickel's, Steven Spillers, M.D. He noted the applicant's increase in discomfort since the head injury, and opined it more likely was a continuation of his head injury in 1989 than a new and separate headache syndrome developing at age 54. His impression was status post traumatic head injury with chronic headache and dizziness. He, too, recommended antidepressant medication.

About six weeks later, in July 1995, the applicant returned to the Marshfield Clinic complaining of pressure-type headaches, dizziness, short term memory loss, fatigue and a new symptom of seeing "brown fuzzy spots in the periphery of his vision" once or twice a day. The spots resembled a rat scurrying away; but of course he knew it was a visual problem not an actual rat. The neurologist he saw about the vision problems, Lorne A. Rolack, M.D., could not relate them to the head injury of six years past, nor did he see any other pathology. He advised a wait-and-see approach.

The applicant stopped taking his antidepressant medication in August 1995 because he believed it caused visual problems. Subsequently, in late August, he saw a neuro-opthalmologist, Daniel Jacobson, M.D., still at the Marshfield Clinic. Dr. Jacobson noted the applicant's main concern was seeing things that were not there, referring again to the brown fuzzy object. He also complained of red eyes, but denied headaches.

Dr. Jacobson was certain the brown fuzzy imagery was not caused by a neurological problem generally or the work-related head injury specifically. He did not know what caused the problem, but speculated it might be entopic [pertaining to the eyeball] in origin. He did not think, though, the problem was caused by the metal in the eye noted in the Dr. Mickel's July 1994 MRI, and recommended just leaving that alone.

The applicant retired from his job in October 1995 after 30 years of employment. He testified that he simply could no longer do his job due to loss of concentration and fatigue. His wife also testified that the applicant's lack of ability to concentrate lead him to worry excessively about having made a mistake, or having not done his share, even at home off duty. The applicant testified that if he had been physically and mentally able to continue to work, he would have done so until he was 62 or 65.

The record contains reports from medical experts from two doctors, neither of whom are treating doctors from Marshfield Clinic.

Exhibits A and C are from Ross Levine, M.D., who examined the applicant in October and December 1995 at the behest of the applicant's attorney.

In his first report dated December 19, 1995 (exhibit C), the doctor noted the purpose of his examination was to determine the extent of injury from the August 1994 work injury. Dr. Levine noted major complaints of memory disorder, excessive fatigue, personality change, headaches and dizziness.

The applicant told the doctor it took him a long time to learn and perform the computer tasks necessary for his employment, that he forgot the technical aspects of his job, and that even simple home repairs like changing a lawn mower blade are now beyond his ability. Regarding fatigue, the applicant told the doctor he had worked several jobs on various shifts before the injury, but after the injury had to retire and even becomes fatigued with simple tasks. Regarding the personality change, he complained he was more passive and docile, and less interested and capable of his former leisure activities and household chores.

Regarding physical symptoms, the applicant described his headaches as pressure headaches that could last several days, and denied a headache history prior to the work injury (except for hang-overs). He also told Dr. Levine that his dizziness, while brief in duration, could come four of five times a day, although he might go a week without a dizzy spell.

On examination, the doctor noted the applicant's forgetfulness, and was left with the overall impression of a classic set of symptoms conforming to post concussional trauma syndrome (also known as posttraumatic syndrome or postconcussional syndrome.) He stated the applicant's memory loss, neurobehavioral defects, neuropsychological defects, personality change, episodic dizziness, episodic head pain and episodic fatigue were all related to the work accident of August 1989.

In a follow up report dated December 21, 1995, Dr. Levine reviewed outside medical records (largely those from the Marshfield Clinic outlined above) and answered a series of questions from the applicant's lawyer. He again expressed his opinion that the applicant's various symptoms were directly caused by the work injury. He opined the applicant was not depressed, malingering, neurotic or psychotic.

Referring to a couple of articles including the AMA guidelines to evaluation of permanent injuries, Dr. Levine rated a 20 percent disability for the impairment of "complex integrated functions," another 20 percent for mild to moderate emotional disturbances under stress, and another 17.5 percent the episodic neurologic disorders of headache, dizziness and fatigue. This would total 57.5 permanent partial disability to the body as a whole on a functional basis. Finally, Dr. Levine noted that the applicant had the potential to develop epilepsy.

The applicant also submits the expert medical opinion of Frederick Yuhas, M.D., who performed an independent medical examination at the behest of the respondent. Dr. Yuhas opined that the applicant sustained a significant cerebral contusion with resulting encephalomalacia of the left temporal lobe which resulted in several deficits including: impairment of complex integrated functions (for which the doctor rated a 10 percent permanent partial disability); a slight disturbance of emotional control (for which the doctor rated another 10 percent permanent partial disability); a defect in short term memory (for which the doctor rated another 10 percent permanent partial disability); and relatively benign complaints of headache, imbalance and dizziness (for which the doctor rated a 5 percent permanent partial disability).

This resulted in a total of 35 percent permanent partial disability on a functional basis. With respect to work restrictions, Dr. Yuhas wrote:

"His capacity to work actually has been relatively good, especially if he is doing familiar work with some amount of supervision and he is capable of doing this work. However, at this point in time he seems to desire to retire although work needs would have been provided to him."

Exhibit D, page 6.

The first issue is the date the applicant reached the healing plateau. As noted above, of course, treating Dr. Lamberson of the Marshfield Clinic opined in his treatment note of September 30, 1990 that applicant had reached a healing plateau with only an eight percent permanent partial disability.

The employer contends that that the applicant reached a plateau of healing with Dr. Lamberson's September 30, 1990 report. The employer notes both that the applicant returned to work in April 1990 and that Dr. Mickel opined he was no different in 1994 than when she saw him in 1991.

However, the commission must disagree. A reevaluation by Dr. Ehrfurth in 1992 indicated that the applicant's symptoms got worse between 1990 and 1992. While Dr. Mickel opined that the applicant's subjective belief he was getting worse was probably due only to his memory problems, her colleague, Dr. Spillers seemed to give relatively more weight to the applicant's complaints of worsening symptoms in the years after the injury. Indeed, the report of the employer's independent medical examiner, Dr. Yuhas, substantiates this: he rated considerably more permanent disability from the work injury in 1996 than Lamberson did in September 1990.

Consequently, the commission, like the ALJ, concludes that the applicant reached an end of healing on October 4, 1993, when Dr. Ehrfurth noted no evidence of further deterioration in cognitive functioning. Because the applicant continued to work until October 1995, no additional temporary disability is awarded.

The next issue is the extent of permanent disability. Resolution of this issue depends to a large extent on the credibility of the expert medical opinions discussed above.

The commission cannot credit the opinion of treating Dr. Lamberson, who opined that the applicant had plateaued by 1990 with an eight percent functional permanent partial disability compared to disability to the body as a whole. However, Dr. Lamberson's disability rating is undercut by Dr. Ehrfurth's findings of additional cognitive disability in 1992, and the subsequent report of the respondent's own independent medical examiner, Dr. Yuhas, who rated permanent partial disability at 35 percent.

This leaves the ratings of Dr. Yuhas and Dr. Lamberson. Of course, Dr. Yuhas's rating of 57.5 percent is far greater than the rating given by treating doctor Lamberson and IME Yuhas. Further, Dr. Levine is not himself a treating doctor, and so had little or no greater actual experience with the applicant's ongoing symptomology than Dr. Yuhas did. In addition, the employer asserts that Dr. Levine's rating is not credible because he used the AMA guidelines, he did not have a clear idea of how the work injury occurred, and he did not set permanent work restrictions.

Indeed, Dr. Levine at one point refers to a motor vehicle accident (Exhibit C, page 3) as the cause of the applicant's disability, though he also referred to "his head injury from a fall 8/4/89" (Exhibit A, page 1). With respect to Dr. Levine's reference to the AMA standards, the commission acknowledges that it normally rejects medical reports which rate disability based on the AMA standards rather than the rating system developed under Wisconsin law (including the department of workforce booklet (1)). However, as the ALJ pointed out, the DWD booklet covers mostly orthopedic disabilities. The booklet does not cover head injuries or mental disability such as those present here. Moreover, all three doctors mention substantially the same factors in rating permanent disability: cognitive loss, loss of emotional control, and physical symptoms (headaches and dizziness). Dr. Levine's disability rating is not made incredible solely by his reference to the AMA standards.

More significant, in the commission's view, is the absence of work restrictions in Dr. Levine's report. Work restrictions may not be necessary to rate permanent disability on a functional basis, but work restrictions do provide some guideline for evaluating a disability rating. In this case, Dr. Levine indicates only that the applicant might need some direction or supervision, that he has a mild to moderate emotional disturbance under situations of ordinary stress, and that he has a neurologic dysfunction that slightly or moderately interfered with activities of daily living.

Of course, Dr. Yuhas does not provide much in the way of work restrictions, either. He noted only that the applicant's capacity to work was relatively good, especially if he did familiar work with some amount of supervision. This observation, like Dr. Levine's, is consistent with Dr. Ehrfurth's opinion that the applicant would probably do well with routine tasks, but would have difficulty solving problems in novel situations. Neither doctor disputed Dr. Lamberson's restriction against working at unprotected heights.

Considering the applicant's residual physical condition in light of these restrictions, the commission cannot conclude the applicant's permanent disability on a functional basis is equivalent of 57.5 percent of disability to the body as a whole. Rather, Dr. Yuhas' rating of a disability at 35 percent of permanent total disability better matches the applicant's residual functional capacity after the work injury. Indeed, the reasonableness of Dr. Yuhas' rating is evident from the fact that he evaluated the applicant on behalf of the respondent, yet the applicant submitted his report into evidence.

The next issue is the applicant's loss of earning capacity, or permanent disability on a vocational basis. As noted above, the only work restrictions imposed by the doctors with respect to the applicant's cognitive disability is that he should not work at unprotected heights and that he perform familiar tasks with greater than normal supervision. In addition, Dr. Yuhas and Dr. Lamberson (and his Marshfield Clinic colleagues), both opined the applicant could continue to work for the employer. Dr. Levine does not opine whether or not the applicant could continue to work for the employer.

Assuming the applicant could continue to work for the employer, his vocational expert saw a 15 to 20 percent loss of earning capacity, based largely on limited tolerance to perform overtime hours. Of course, if an injured worker returns to work for his employer at 85 percent of his pre-injury wage, he would ordinarily have no loss of earning capacity under Wis. Stat. § 102.44 (6)(a) and (g). (2) However, if an injured employe quits such a job because his physical or mental restrictions prevent him from working in the job, the department or the commission may reopen the award and order the payment of loss of earning capacity. Wis. Stat. § 102.44 (6)(b).

Thus, whether the applicant is entitled to an award for loss of earning capacity depends upon whether the applicant retired from his job with the employer because of mental oR physical limitations. On the one hand, no doctor has ever opined that the applicant may not work, or even that he had work restrictions other than a restriction against working at unprotected heights or against working in other than a familiar job with some supervision. Rather, Drs. Yuhas, Lamberson and Mickel all indicate the applicant can work. Moreover, in this case, the applicant worked for the employer for five years after his work injury, and for two years after reaching a healing plateau, before deciding he could not longer handle the job.

The commission cannot conclude that the applicant's mental and physical limitations prevented the applicant from continuing to work for the employer. While the applicant may have felt he could no longer do his work well, and was not "pulling his weight," the employer did not share that opinion. None of the numerous doctors who examined him advised him to quit. The commission acknowledges that the applicant's job did involve taking samples and manipulating switches and valves on machines to keep them operating properly. However, this was work that was familiar to him, and the commission must conclude it was within his cognitive or mental limitations as set out by his doctors.

Nor can the commission conclude that the applicant's work on catwalks with low railings and stairways with siderails constituted prohibited work at "unprotected heights." In order to conclude that those duties, which the applicant managed to do for several years after the work injury without significant incident, were beyond his physical limitations the commission would expect more specific work restrictions. In sum, the commission cannot conclude that the applicant quit his job with the employer because his physical or mental limitations prevented him from continuing in his employment. Thus, no award for loss of earning capacity may be made under Wis. Stat. § 102.44 (6). (3)

The commission therefore finds that the applicant sustained a permanent partial disability of 35 percent compared to disability to the body as a whole, accruing as of October 4, 1993. The applicant is thus entitled to 350 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1989, $125 per week. As of September 11, 1997, 205 weeks and 3 days of permanent partial disability have accrued amounting to $25,687.50.

The applicant also approved an attorney fee of 20 percent under Wis. Stats. § 102.26. The percentage fee is based on the additional permanent partial benefits awarded under this decision. The employer conceded and paid 80 weeks of permanent partial disability, so the additional permanent disability awarded hereunder is 270 weeks or $33,750. The total fee is thus $6,750 {20 percent of $33,750.) Of that amount, however, only the fee attributable to 125 weeks and 3 days of permanent partial disability has yet accrued; 144.5 weeks remains unaccrued. As a result, the unaccrued fee is subject to an interest credit of $331.64, leaving a net fee which reflects its present value of $6,418.36. The fee shall be deducted from the applicant's total award and paid within 30 days.

The amount due to the applicant within 30 days is $12,550. This is determined by starting with the accrued permanent partial disability benefits ($25,687.50), subtracting the amount previously conceded and paid ($10,000), and subtracting the accrued portion of the attorney fee ($3,137.50).

The amount remaining to be paid to the applicant as it accrues after September 11, 1997 is $14,450. The amount remaining to be paid equals the unaccrued permanent partial disability compensation ($18,062.50) less the unaccrued attorney fee without deducting the interest credit ($3,612.50). The remaining amount shall be paid to the applicants in monthly installments of $541.67, beginning October 11, 1997.

These amounts, of course, are subject to recalculation based on a social security reverse offset, if applicable, under Wis. Stat. § 102.44 (5). Because the commission cannot rule out the possibility of further treatment or additional disability, this order is left interlocutory on those issues.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

INTERLOCUTORY ORDER

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.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

(1) To the applicant, Lawrence Lang, Twelve thousand five hundred fifty dollars ($12,550) for disability compensation.

(2) To the applicant's attorneys, Brian McGraw and Rick Johnson, Six thousand four hundred eighteen dollars and thirty-six cents ($6,418.36) as attorney fees.

Beginning on October 11, 1997 and continuing on the eleventh day of each month thereafter, the employer and its insurer shall pay the applicant Five hundred forty-one dollars and sixty-seven cents ($541.67) until the sum of Fourteen thousand four hundred fifty dollars ($14,450) is paid.

Jurisdiction is retained for further orders as may be appropriate consistent with this decision.

Dated and mailed September 8, 1997
langla.wrr : 101 : 7  ND § 5.23

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness who was hard-working and conscientious. The ALJ also found credible the testimony of the applicant's wife to the effect that the applicant would come home from work and ruminate and worry about possible mistakes or lapses in performance. She also found credible his testimony that he would have preferred to continue working.

The commission does not in any respect question the applicant's work ethic. Nor does the commission doubt that he may have genuinely believed his work performance suffered after the injury, and that he was not carrying his share of the load. However, the applicant's subjective belief that his work performance so suffered from his cognitive problems from the work injury that he had to quit does not establish that his mental and physical limitations prevented him from continuing to work in his job for the employer. That is particularly true where, as here, his doctors opined he could continue to work.

cc: ATTORNEY BRIAN C MC GRAW

ATTORNEY PHILIP LEHNER
CAPWELL & BERTHELSEN

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Footnotes:

(1)( Back ) "How to Evaluate Disability under Wisconsin's Worker's Compensation Law."

(2)( Back ) If an injured worker returns to work for his time of injury employer at a job paying 85 percent of his pre-injury wage, he is not entitled to loss of earning capacity under sec. 102.44 (6)(a), Stats. Likewise, if an injured worker refuses such work without reasonable cause, he is ineligible for an award for loss of earning capacity. Section 102.44 (6)(g), Stats. Finally, if an injured worker has obtained an "85 percent" job, but the job is terminated, LIRC or DWD may reopen any award to redetermine loss of earning capacity under § 102.44 (6)(b), Stats. The employer cites three of prior commission decisions on this issue. Lancour v. American Motors, WC case no. 85-018728 (LIRC, May 31, 1990); Kummer v. Industrial Air Products, WC case no 92019275 (LIRC, June 30, 1995) and Mallette v. Hartford Finishing Inc, WC claim no. 93036016 (LIRC, July 31, 1995). In brief, these cases hold that § 102.44 (6)(g), Stats., indicates a legislative intent for LIRC and DWD to exercise their discretion to award loss of earning capacity following a quit or discharge from a "85 percent job" based on the facts of the separation, and regardless of whether there is technically an award to reopen.

(3)( Back ) Even if the commission were to reach the issue, in order to award more than a fifteen or twenty percent loss of earning capacity, it would have to rely on a vocational opinion based not so much on restrictions set by Dr. Levine, but on his symptoms as reported to the doctor. The commission generally disfavors estimates of loss of earning capacity only on the applicant's own recitation of his or her restrictions. Wilkinson v. Roundy's, WC claim no. 91012579 (LIRC, January 31, 1996).