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

MICHAEL MOLITOR, Applicant

PEPSI COLA CO, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 91072459 and 93021071

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, except that it makes the following modifications:

1. Delete the first two full paragraphs on page 12 of the ALJ's decision and substitute:

"The insurer paid permanent partial disability rated at 10 percent compared to permanent total disability, (100 weeks at $137 per week) for a total of $13,700. As stated in the preliminary recitals of this decision, the insurer paid temporary disability from the time of the work injury to May 15, 1992, then from February 20, 1994 to March 15, 1995, and then again from July 20, 1995 to the date of the hearing. In addition, a `Supplementary Report' on form WC-13 submitted by the applicant's attorney also shows continuing payments of temporary disability after March 15, 1995, and the applicant's attorney concedes payment of temporary disability from March 15 to July 20, 1995.

"In short, between the date of injury and the date on which the permanent total disability began to accrue, the only period during which the employer did not pay temporary disability was from May 16, 1992 through February 19, 1994 (a period of 92 weeks). During the period in which temporary disability was not paid, $12,604 (92 weeks at $137 per week) of the conceded permanent partial disability accrued. The amount attributable to the remaining eight weeks of permanent partial disability ($1,096) was overpaid, and the insurer is entitled to a credit for that overpayment.

"In addition, the insurer is entitled to a credit for all the temporary total disability benefits paid after June 20, 1996, a period of 27 weeks at the applicable rate of $388 per week for a total of $10,476. The sum of the overpayments is thus $11,572. The insurer may offset this amount against compensation due the applicant.

"The compensation accrued for permanent total disability from June 20, 1996 to August 20, 1997 is $23,688 (60 weeks and six days at $388 per week). The employer has a credit against this amount in the sum of $11,572, leaving the amount of $12,096 in permanent total disability accrued as of August 20, 1997.

"The applicant approved an attorney fee of 20 percent of additional compensation under Wis. Stat. § 102.26. The currently accrued fee from the permanent total disability award thus amounts to $2,419.20; costs of $848.43 are also approved. The remaining accrued amount ($8,828.37) shall be paid the applicant within 30 days.

"Beginning on September 20, 1997 and through December 21, 2005 (when 500 weeks will have passed from June 20, 1996), the applicant shall receive $1,345.06 per month and the applicant's attorney shall receive $336.27 per month. Beginning January 21, 2006, the applicant shall receive $1,681.33 per month for life."

2. Delete the second full paragraph of the on page 13 of the ALJ's decision.

3. Delete the first and second paragraphs of the ALJ's Interlocutory Order and substitute the following therefor:

"Within 30 days from the date of this Order, as amended, the employer and its insurer shall pay all of the following:

"(1) To the applicant, Michael Molitor, Eight thousand eight hundred twenty-eight dollars and thirty-seven cents ($8,828.37) for accrued disability compensation.

"(2) To the applicant's attorney, Steve M. Jackson, the sum of Two thousand four hundred nineteen dollars and twenty cents ($2,419.20) as accrued attorney fees and Eight hundred forty-eight dollars and forty-three cents ($848.43) in costs.

"Beginning on September 20, 1997 through December 21, 2005, the employer and its insurer shall pay all of the following:

"(1) To the applicant, the sum of One thousand three hundred forty-five dollars and six cents ($1,345.06) per month.

"(2) To the applicant's attorney, Steve M. Jackson, the sum of Three hundred thirty-six dollars and twenty-seven cents ($336.27) per month.

"Beginning on January 21, 2006, the employer and its insurer shall pay the applicant the sum of One thousand six hundred eighty-one dollars and thirty- three cents ($1,681.33) per month for life."

ORDER

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

Dated and mailed August 28, 1997
molitmi.wmd : 101 : 5  ND § 5.33

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

On appeal, the respondent argues that the ALJ erred in finding that the applicant's vocational expert, Ms. Krizan, concluded the applicant was permanently and totally disabled based on Dr. Littman's (1) restrictions. The respondent asserts Ms. Krizan instead found the applicant to be 65 to 75 percent based Dr. Littman's restrictions.

The commission cannot agree. Ms. Krizan did rate 65 to 75 percent loss of earning capacity, but this was based on Dr. Littman's 1994 pre-fusion restrictions. After Dr. Littman issued his 1996 report, Ms. Krizan issued a supplemental report finding 100 percent disability based on the doctor's 1996 post- fusion restrictions.

In his reply brief the respondent's attorney argues the restrictions are really not all that different. Again, the commission cannot agree. Dr. Littman set a 25-pound lifting limit in 1994, he restricted the applicant to no more than sedentary work (usually a ten pound limit) in 1996. He allowed anything but "very frequent" bending, stooping, kneeling, twisting, and working above shoulder level in 1994; by 1996 he recommended avoiding all but the most restrictive forms of lifting, bending, stooping, kneeling, crouching and working above shoulder level. In addition, Dr. Littman's 1994 restrictions do not mention the substantial restrictions on sitting and standing mentioned in the 1996 report. Finally, Dr. Littman rated functional permanent disability at only 25 percent at the back in 1994, compared to 40 percent at the lumbar spine in 1996.

The respondent's attorney points to a sentence in Dr. Littman's 1996 report that his opinions regarding the applicant remained unchanged. Of course, it is clear from the context that the doctor meant his opinions regarding causation were unchanged. His work restrictions and permanent disability ratings very clearly changed. Indeed, it would be unusual if they did not, as the applicant underwent a two level fusion surgery, and a hardware removal surgery in the interim.

The respondent next asserts that the opinion of its vocational expert is more credible than that of the applicant's. On this point, the employer asserts that the applicant's expert, Ms. Krizan, changed her loss of earning capacity rating "in an obvious attempt to do anything necessary to find permanent total disability . . . without any basis for doing so." In fact, Dr. Littman's significantly changed restrictions provide that basis as demonstrated above.

Moreover, the credibility of the report of the respondent's vocational expert, Ms. Steinback, is undercut by her underlying assumption that Dr. Littman's restrictions:

"would enable the applicant to perform work in the sedentary, and select light work category. According to the Dictionary of Occupational Titles, a job would fall into the light strength category even in [if?] the lifting involved was negligible, if it requires walking or standing to a significant degree."

However, Dr. Littman specifically limited the applicant to "no more than sedentary work." He did not authorize select light work. Second, in order to qualify for select light work, even under Ms. Steinback's theory, the applicant had to be capable of walking or standing to a significant degree. In fact, Dr. Littman specifically opined that the applicant's sitting and standing would have to be "substantially limited."

The commission also considered the applicant's argument that the previously paid permanent partial disability should not have been deducted from his permanent and total disability award. (2) The commission and the department normally allow a worker to keep accrued permanent partial disability if a worker is subsequently found to be permanently totally disabled as of a later date. On the other hand, if a worker is found to be eligible for permanent total disability in weeks for which permanent partial disability has already been paid, an offset is appropriate.

As explained in the material added to the ALJ's decision by amendment, the record indicates that the applicant did not receive compensation for temporary disability during 92 weeks between the date of injury and the date permanent total disability began to accrue. Consequently, the commission considered those 92 weeks to be weeks of permanent partial disability only, otherwise temporary disability or permanent total disability would have been paid. Thus, no overpayment occurred during those 92 weeks. While the respondent suggests that a worker may not be permanently partially disabled and later permanently totally disabled from the same injury, the commission disagrees. Indeed, the possibility that an injured worker may sustain additional permanent disability after reaching a healing plateau is one reason why orders resolving workers compensation disputes are left interlocutory. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

cc: ATTORNEY STEVE M JACKSON
PARRONI SIEDOW & JACKSON SC

ATTORNEY JEFFREY J STRANDE
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

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Footnotes:

(1)( Back ) Dr. Littman was the respondent's independent medical examiner.

(2)( Back ) The applicant raised this concern both in a letter to the ALJ after the hearing, and in his answer to the respondent's petition. The answer to the PCR and the letter were both filed within 21 days of the ALJ's decision. The commission thus concludes the applicant has put the offset/overpayment question at issue on review, even if he did not file a document denominated "petition for review."