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

BRENDA VANDE KOLK, Applicant

QUAD GRAPHICS INC, Employer

HOME INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-019801


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 1, 1994, the applicant injured her right shoulder working for the employer. Her treating doctor, Dr. Keene, assessed fifteen percent permanent partial disability.

The commission finds that a fifteen percent permanent partial disability rating is excessive. The applicant's permanent work restrictions are in the light-duty range rather than the sedentary light-duty range her doctors originally thought would apply. The applicant testified and her therapy/medical reports indicate that she has vastly improved through treatment and therapy. The applicant was subjected to a number of tests including EMGs, x-rays, MRIs, nerve conduction studies, and myelograms, and all were negative. Applicant has not undergone surgery. Applicant testified that she has full range of motion and her primary problem is pain. In addition, the applicant demonstrated a range of motion in her most recent examinations that, when compared to the minimum ratings for limitations set forth for the shoulder in Wis. Admin. Code § DWD 80.32(7), warranted an award in the five percent range. The commission finds that applicant has sustained nine percent permanent partial disability. The commission's rating is not within the five percent range set forth in Wis. Stat. § 102.18(1)(d), but for the above reasons the commission deviates from that range.

The respondents argue that the applicant was not entitled to temporary total disability from March 26, 1998, to August 24, 1998. The applicant originally reached the end of healing in November of 1996. She sought further treatment because of pain. The respondents argue that this was not "treatment." The respondents further argue that the applicant is not entitled to temporary total disability because she did not contact the employer to see if the employer had work available for her within Dr. Keene's restrictions.

However, as long as the applicant was treating for the work injury and a doctor took her off work she is in a healing period. Based on Exhibits E, F, and 4 Dr. Keene was actively treating applicant for her work injury and she was temporarily totally disabled due to her work injury. Further, the medical reports in the record take applicant off work until at least August 20, 1998. The applicant's medical reports support an award of temporary total disability from March 26, 1998, to August 24, 1998.

Applicant's Exhibits H-N and respondents' Exhibit 6 support applicant's claim for vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61. For example, Exhibits L and M describe her classes in pursuit of a degree in police science as well as her grades; so far, she is a straight A student. Dennis Gross's report (Exhibit 6) for Quad Graphics is an excellent evaluation. The message of and tone in Exhibit 6 involves a very professional and objective work product. Consequently, even though the DVR counselor (Michael Petersen) and Mr. Gross differ in their respective conclusions and opinions, their overall collective work product has been extremely helpful in evaluating this claim.

At first glance, one wonders how an injured worker with right shoulder permanent residuals would be able to function in the physically challenging job duties of a police officer. Indeed, Mr. Petersen had noted on October 7, 1998: "We also talked about her physical limitations. They are quite restrictive and it is unlikely she would be able to work as a police officer." Exhibit H. On the other hand, Mr. Petersen immediately continued with the following reasonable observation:

"We are aware of several other occupations within the law enforcement field, including the parking attendant and loss prevention security. She does feel confident that she could handle these other jobs."

While networking at classes and with law enforcement officials over the years, applicant credibly testified that she is capable of performing all of the physical demands of a police officer. In fact, the more challenging aspect apparently is the physical examination and testing used for entry into a police officer job. Applicant explained that she already has successfully self-tested herself (including her right shoulder) to determine that she is physically capable of testing for, then functioning as, a police officer. On this record, this is no credible evidence to the contrary. Moreover, as she and her DVR counselor have researched, there are many other jobs under the broad police science degree umbrella that are less physically demanding than those of a beat cop.

Applicant is left hand dominant so the upper extremity with permanent disability is with her off hand. Further, during her 1998 treatment and therapy, the applicant's right shoulder continued to improve more and more. While the improvement has negatively impacted upon her 15 percent permanent partial disability claim, it positively impacts on her vocational rehabilitation claim for retraining under the overall police science umbrella. Applicant credibly testified that she is physically capable of functioning as a police officer and has the desire to do so. She has demonstrated for years that even while properly taking care of her only son by herself, she has been able to successfully function both on the job and in the college classroom. She is goal oriented.

Mr. Petersen presented himself as an experienced professional, both as a DVR counselor as well as in life generally. Mr. Petersen met with her an incredible number of times between October 27, 1997 and the present. Mr. Petersen has gotten to know her very well as a client/customer and as a person. As a result of this lengthy experience and coupled with Mr. Petersen's other relatively exhausting research into this matter, Mr. Petersen has made the professional and reliable judgment that she indeed is capable of working as a police officer. DVR's placement of applicant into the police science degree program is reasonable and appropriate.

The applicant recently has garnered straight A's through three semesters of police science schooling. Even though she has been required to repeat certain classes because of the lapse of time since her schooling nine year ago, DVR's decision to certify her to be retrained in police science is imminently reasonable. It is very reasonable to now build on her 1990-1991 police science schooling in order to return her to the earning capacity she had possessed prior to the 1994 work- related injury.

Quad Graphics argues that being retrained in police science is inappropriate because completion of this educational program will more than restore her pre-injury earning capacity. The commission disagrees. Exhibit 6 lists five jobs she held before being injured: a gas station attendant, a waitress, a comiblock operator, a bartender/manager and a finishing technician. Scrutiny of her actual earnings in these jobs does not fully explore her pre-injury earning capacity. The goal here is not merely to search for a restoration of the pre-injury earning capacity. Rather, the goal is to identify, and restore, her pre-injury earning capacity and potential. Beloit Corporation v. State, 152 Wis. 2d 579, 590-591 (1989). While the applicant's pre-injury earning capacity was not exactly "virtually limitless," her three years of advanced schooling right out of high school has exceedingly high probative value in identifying her pre-injury earning capacity and potential. Beloit Corporation at 590. Long before the subject injury, she had been motivated to obtain a police science education and had schooled for three years in this direction, but then the demands of single parenting and the absence of sufficient college funds temporarily placed her trip on this career track in a temporary holding pattern. Thus, recalling that "she graduated in 1989 with a 4.0 grade point average" from "Goodrich High School in Fond du Lac" and remembering that she again is currently a straight A student, the commission concludes that her pre-injury earning capacity and potential was rather significant, much more than that reflected by the earnings in these five jobs.

Tremendous deference is owed the DVR counselor under the law. The parties agreed that the narrow test herein is whether Mr. Petersen and the DVR "applied an interpretation of the rehabilitation laws which is entirely outside the reasonable scope of interpretation and hence a clear abuse of administrative power." Beloit Corporation at 587. The commission concludes that they did not. Therefore, she is entitled to receive vocational retraining benefits from Quad Graphics and Home Insurance.

Prior to July 1, 1994, the applicant's physical ability to function in the labor market was virtually limitless in the sense that she could perform heavy duty work involving handling items over 100 pounds. She could perform all medium duty jobs involving handling items over 50 pounds. Then unfortunately a crane that "weighed approximately 600 pounds" fell down on her left shoulder and neck area significantly reducing her physical working capacity down to light duty notwithstanding literally years of treatment, therapy and home exercises. Exhibit E. Moreover, it is important to remember that the two key physicians in this case, Dr. Keene and Dr. Toivonen, are in total agreement with her light-duty permanent restrictions.

Applicant is entitled to temporary total disability benefits from March 26, 1998, to August 24, 1998, 21 weeks and 2 days, at the rate of $186.33 per week, which totals $3,975.04. Applicant is entitled to retraining/temporary total disability benefits at the accelerated weekly rate of $215.12 under Wis. Stat. § 102.43(7)(a), (b) and (c); $4,051.43 for 18 weeks and 5 days from January 17, 1999, to May 29, 1999; $4,087.28 for 19 weeks between September 7, 1999, and January 19, 2000; $3,943.87 for 18 weeks and 2 days between January 24, 2000, and June 1, 2000; $3,657.04 for 17 weeks between August 23, 2000, and December 21, 2000; and $430.24 for the 2 weeks between January 15, 2001 and the hearing on January 30, 2001. Applicant regularly attends classes and receives excellent grades. Consequently, if she continues to do so respondents shall continue paying these weekly retraining/temporary total disability benefits for the remainder of her schooling until she receives her degree. A twenty percent attorney's fee is approved on all retraining benefits. Pursuant to Wis. Stat. § 102.43(5), the 80 week limitation does not apply in this case because the additional training is warranted.

Applicant is entitled to permanent partial disability at the maximum 1994 weekly rate of $158.00. Applicant is entitled to 45 weeks of permanent partial disability benefits at the maximum rate totaling $7,110.00, less $4,740.00 previously paid and attorney's fees.

Jurisdiction is retained over future medical and associated expenses and vocational rehabilitation. Jurisdiction is also retained over past medical, travel, and associated expenses.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing findings and, as modified, are affirmed. Within 30 days of the date of this decision the respondents shall pay to the applicant the sum of seventeen thousand eight hundred twenty-six dollars and fifty-two cents ($17,826.52); and to her attorney, Robert A. Pretto, four thousand five hundred two dollars and ninety- eight cents ($4,502.98) in attorney's fees and one hundred eighty-five dollars and forty cents ($185.40) as reimbursement for costs.

Dated and mailed July 25, 2001
vandebr . wrr : 132 : 1  ND § 5.39

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant petitions arguing the only acceptable permanent partial disability rating was fifteen percent. The applicant argues that the ALJ relied on two letters by Dr. Toivonen, Exhibits 2 and 5, which set forth a nine percent rating. Applicant objects that the reports were not certified by attaching WKC-16-B forms to the reports. Wis. Stat. § 102.17(1)(d); Wis. Admin. Code § DWD 80.22(5). The matter was discussed at the hearing and the ALJ noted that there was no "good cause" provision for failing to attach the 16-Bs. The ALJ indicated that he would "further ponder the admission of 2 and 5, and I will address their admission into evidence in my order." The ALJ did not address the admission of Exhibits 2 and 5 into evidence in his order. The ALJ does, however, repeatedly refer to Dr. Toivonen's letters in his order which leads to the conclusion that he did admit them into the record as he used them as a basis for his decision.

The lack of certification makes Dr. Toivonen's reports hearsay. The ALJ may admit hearsay evidence in a worker's compensation hearing if the hearsay has probative value. Wis. Admin. Code § DWD 80.12 (1)(c). However, such hearsay evidence, while admissible, may not serve as the sole basis for a finding in a contested case. Erickson v. DILHR, 49 Wis. 2d 114, 121-22 (1970) and Village of Menomonee Falls v. DNR, 140 Wis. 2d 479, 610 (Ct. App. 1987). The ALJ did not rely solely on Dr. Toivonen's reports. There is no demonstrated prejudice to the applicant in admitting the reports since applicant's attorney actually had the Dr. Toivonen's reports for two years.

The commission has modified the ALJ's order and finds, without reliance on Dr.Toivonen's or Dr. Benson's reports, that applicant sustained a nine percent permanent partial disability. The fact is that the applicant's range of motion corresponds to a five percent disability rating pursuant to Wis. Admin. Code § DWD 80.32(7). Dr. Keene's fifteen percent rating is excessive. The record contains ample justification for deviating from the five percent range set forth in Wis. Stat. § 102.18(1)(d).

cc: 
Attorney Robert A. Pretto
Attorney Kurt R. Anderson


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