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

JEFFREY MILLIKIN, Employe

DELAFIELD HARTLAND WATER, Employer

HOME INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 82045003

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, except as follows:

1. In the second full paragraph beginning on page 3 of the ALJ's decision, change the references to Dr. "Perry" to Dr. "Terry".

ORDER

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

Dated and mailed February 28, 1997
millije.wsd : 101 : 8  ND § 5.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Mr. Millikin sustained a conceded work injury in 1982. ALJ Randall Kaiser found him permanently and totally disabled in 1985. The commission affirmed in 1986; the circuit court affirmed the commission in 1987. As is the department's practice in cases involving permanent total disability, ALJ Kaiser left his award interlocutory.

The insurer sought relief under the interlocutory order, claiming that a recent videotape and IME report show that Mr. Millikin is not permanently totally disabled. ALJ Roy Sass heard this claim in February 1996, and issued a decision in August 1996 finding that Millikin remained permanently and totally disabled.

In considering this case on review, it must be kept in mind that the insurer here is seeking to have a previously-affirmed 1985 interlocutory order awarding permanent total disability set aside; this is not a new claim for permanent total disability. As a result, the "applicant" here is the insurer, and it bears the burden of proof.

Exactly what the insurer's burden is poses an interesting legal issue. Does the insurer have the burden of proving that Millikin is not permanently and totally disabled, in other words, must it rebut his prima facie case of odd lot disability with evidence that work is now available to him within his restrictions on a regular and continuous basis?  Or does the employer just have to prove that Millikin's physical restrictions have changed or that there is some new circumstance regarding his physical restrictions, so that the burden then shifts back to Millikin having to reprove his prima facie case under Balczewski   (1)?

The commission first notes that ALJ Kaiser specifically stated in his 1985 decision that

"Dr. Melvin noted [Mr. Millikin's] condition is stable with virtually no chance for improvement. However, given a chance [Millikin's] condition may improve ... jurisdiction is reserved."

This finding was affirmed by the commission and the circuit court. Clearly, then, ALJ Sass and the commission have jurisdiction to revisit the issue of permanent disability.

As the "applicant" seeking post-appeal relief from an interlocutory permanent total disability award, the insurer must meet some minimum threshold of proof, and may not simply shift the burden back to Mr. Millikin by filing an application. At a minimum, the commission believes, the insurer must provide "new evidence" demonstrating either: that Mr. Millikin's permanent work restrictions have changed and that work is now regularly and continuously available within the new restrictions; or, if his permanent restrictions have not changed that work is now available for Millikin given the unchanged restrictions.

The new evidence here is the videotape. Certainly Dr. Melvin's 1989 opinion is not "new evidence," as the doctor himself sees Millikin's condition as unchanged, and the employer's vocational expert admits Melvin's 1989 restrictions are, if anything, more restrictive than those in the 1984 note underlying ALJ Kaiser's restrictions. Nor does the employer's independent medical examiner, Dr. Terry, opine that Millikin's physical limitations have changed. Rather, Dr. Terry opines that Mr. Millikin never had a work-related injury to his back, or the 1982 injury caused at most temporary disability to the back. Essentially, Dr. Terry reasserts Dr. LaJoie's 1985 opinion that Millikin has no permanent back disability caused by work, and testified that the videotape supported that conclusion.

The videotape shows Mr. Millikin engaged in a level of physical activity that, for a short time at least, arguably exceeds the estimate of physical capacity upon which ALJ Kaiser based his permanent total disability award in 1985. The question for the commission is whether the videotape justifies the conclusion that Mr. Millikin does not have, and never has had, permanent disability from a work-related back injury.

For that is essentially the finding that the insurer seeks. It does not claim that Millikin has recovered from his previously disabling condition, or even that he was only partially disabled all along. Rather, the insurer asks us to accept Dr. Terry's conclusion that Mr. Millikin has never had unscheduled permanent disability from the work injury, let alone sufficient permanent disability or functional restrictions upon which an opinion of "odd-lot" or "vocational" permanent total disability may be based.

However, the commission is reluctant to conclude Mr. Millikin was left with no back disability following his 1982 work injury with the lawn tractor. The record contains reports from medical experts establishing permanent disability from the work injury, and these reports are supported by evidence of a disc pathology, as well as Millikin's testimony about back pain. In short, the commission cannot conclude that the videotape showing several minutes of activity in 1992 to 1994 justifies concluding his back was not permanently injured ten years earlier.

Moreover, reversing to deny based on the previously-rejected medical opinion that Mr. Millikin had no work injury does not seem to be within the scope a re-application under an interlocutory order. The purpose of an insurer's application on an interlocutory order is to determine whether something has changed since the prior order, not to determine whether the prior order was wrong. What the insurer requests amounts to a reconsideration based on mistake of fact well after the one year period contemplated under sec. 102.18 (4), Stats. Stated another way, the insurer is seeking a kind of a second appeal process for ALJ Kaiser's order after the commission already affirmed it in 1986; that is not the purpose of relief under an interlocutory order.

Because the record does not establish a change in Millikin's physical condition justifying reconsidering the functional restrictions set by Dr. Melvin in 1984, the commission does not believe it may reopen the issue of whether those restrictions make Millikin permanently and totally disabled on a vocational or odd-lot basis. Nor does the record show a change in the job market that would take Millikin out of the odd-lot category, such as the emergence of a kind of work that Millikin can now do under Dr. Melvin's restrictions. Indeed, the insurer has not shown that any work is actually available to Millikin, so the insurer would fail to rebut Millikin's prima facie case of odd-lot unemployability were the commission to reach the issue. (2)

Finally, the insurer suggests that we reconsider this case under the recent court of appeals decision in Langhus v. LIRC, court of appeals case no. 96-0622, district IV decision dated November 14, 1996, recommended for publication. In Langhus, the court held the commission did not err in requiring Mr. Langhus to prove that an ascertainable portion of his total disability was attributable to an unscheduled disability. The court of appeals apparently left open the question of whether scheduled disabilities may ever be considered with unscheduled disability to determine permanent disability based on vocational loss, id., slip opinion at page 15.

The commission need not try to answer that question here. As the court in Langhus points out, it was merely affirming past commission practice. If the commission erred in its 1986 decision affirming the permanent total disability award, the time to address that error has passed. Stated another way, the commission is reluctant to revisit previously-decided permanent total disability cases in which Langhus might be applicable.

cc: ATTORNEY MARK R KRAMER
NELSON DRIES & ZIMMERMAN SC

ATTORNEY THOMAS DOMER
SHNEIDMAN MYERS DOWLING & BLUMENFIELD

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Footnotes:

(1)( Back ) Balczewski v. LIRC, 76 Wis. 2d 487 (1977), the seminal "odd-lot" case.

(2)( Back ) On this point, Millikin cites the recent cases where the commission was reversed after denying permanent total disability based on vocational evidence that certain jobs were within an injured workers restrictions, when the record did not show the jobs were actually available. Morey v. LIRC, court of appeals case no. 95-0673-FT district IV unpublished court of appeals decision (March 21, 1996); Cabral v. LIRC, court of appeals case no. 94-3309-FT, district I unpublished decision (December 12,1995).