CARL B KEYS, Applicant

TOWER AUTOMOTIVE, Employer

AMERICAN MANUFACTURERS MUTUAL INS CO, Insurer

In May 2005, the applicant filed an application for hearing seeking compensation related to a September 26, 2001 low back injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 18, 2007.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an injury on September 26, 2001 that arose out of the applicant's employment with the employer while performing services growing out of and incidental to that employment, and an average weekly wage at that time of $840. At issue was the applicant's claim for temporary disability and medical expenses.

The ALJ issued his findings and order on March 12, 2006. The applicant filed a timely petition for commission review.

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:

1. Facts and posture.

The applicant, who was born in 1949, worked for the employer from 1968 to 2002. He injured his back at work in 2001.

On February 6, 2002, while he was still working in light duty restrictions from the work injury, the applicant filled out an application for his retirement benefits. The retirement application form indicates he sought a "30 and out" retirement. On appeal, no one disputes the ALJ's finding that, a "30 and out" retirement "means that upon completion of 30 years service at the employer, one may retire with the maximum retirement benefit."

The application for retirement gave a "last day of work" of April 30, 2002, and a "retirement date" of May 1, 2002. The applicant testified that he was given an added incentive of a $12,000 lump sum payment to retire. His retirement benefit from the employer is $1,000 per month. There is no evidence that the applicant's decision to take the retirement was motivated in any way by his injury.

After completing the application for retirement in February 2002, the applicant continued to work in light duty as his retirement date approached. He saw his doctor, Stanley Robbins, M.D., who recommended a surgery, but the applicant wanted to continue with conservative care. Accordingly, Dr. Robbins in effect set a healing plateau on April 4, 2002, with permanent work restrictions permitting full time work with a maximum of 3 to 5 hours of sitting and standing; 1 to 3 hours of walking; position changes every 60 minutes; and a maximum lift of 25 pounds; occasional repetitive bending and twisting; occasional squatting, kneeling, and carrying; and no climbing, pushing and pulling.

The employer refused to accommodate these restrictions when made permanent. Accordingly, the employer terminated his employment on April 4, 2002, about a month before his pension payments began on May 1, 2002. The applicant applied for social security disability in 2002, but his claim was rejected.

The applicant testified that he did not intend to remove himself permanently from the labor market by retiring, and that he applied for work at WalMart, Home Depot, and Sheraton Mayfair. However, the applicant admitted that in 2003 when he saw Bruce Schuyler (the respondent's vocational expert) he had not yet made any job applications. He also told the respondent's independent medical examiner on April 15, 2003 that he had retired.

In 2003, the applicant entered into a limited compromise on his permanent partial disability claim, including his claim for loss of earning capacity.

In 2005, the applicant's symptoms increased. He saw Dr. Robbins on March 9, 2005, who noted progressively worsening symptoms, and recommended L3-4, L4-5 laminectomy and fusion procedures. By letter dated April 25, 2005, Dr. Robbins withdrew his earlier set of work restrictions from 2002, and opined the applicant was incapable of gainful employment in any capacity, and so temporarily and totally disabled. Dr. Robbins anticipated improvement with surgery, though he added the applicant would need permanent restrictions thereafter.

The applicant reapplied for social security disability due to his worsening condition. This time, he was found eligible as of March 2006.

On May 18, 2006, the applicant underwent the surgery proposed by Dr. Robbins. According to the applicant, it went quite well, and in effect localized the pain.

2. Discussion.

The applicant now seeks temporary total disability. The respondent's defense is that the applicant is ineligible for temporary total disability due to his retirement.

With respect to permanent partial disability, the Supreme Court has held a traditional retirement--including for example, taking Social Security old age benefits--does not necessarily preclude an award for loss of earning capacity. Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 403 (1969). However, Kohler Co. did not address temporary disability benefits.

There is no statute specifically saying what happens to temporary total disability in the event of retirement. The primary statute governing temporary disability, Wis. Stat. § 102.43, does provide in part

102.43 Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability.

(1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability.

(2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee's average weekly wage at the time of the injury.

...

(5) Temporary disability, during which compensation shall be paid for loss of earnings, shall include such periods as may be reasonably required for training in the use of artificial members.... [Emphasis supplied.]

In other words, temporary total disability is directed at replacing current lost wages or earnings. Wisconsin Statute § 102.43 (intro.) describes temporary total disability as an indemnity due as wages that becomes payable a certain period after an employee leaves work due to the injury. Wisconsin Statute § 102.43(5) describes temporary disability as "paid for loss of earnings." ⁽¹⁾ In addition, the statutes allow for a reduction in temporary total disability benefits based on wages earned in the healing period (Wis. Stat. § 102.43(2)), but not against permanent disability based on wages earned while permanent disability accrues. See Wis. Stat. § § 102.44, 102.52 et seq.

Indeed, the wage replacement aspect of temporary disability led a circuit court and the court of appeals to reverse the commission's award of temporary disability to a retired worker in what is known as the General Motors Corporation ⁽²⁾ cases. Both the circuit court and court of appeals in General Motors Corporation distinguished the Kohler case, observing that Kohler involved permanent disability benefits--which is paid for loss of earning capacity--not temporary disability--which is paid for loss of wages.

In support of its conclusion, the circuit court in General Motors Corporation cited language in Wagner v. Industrial Commission, 273 Wis. 553, 567d (1956) stating that temporary disability is measured in terms of wage loss while permanent disability is measured on the basis of bodily impairment. The court also cited Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947) which states that it is possible to determine actual wage loss during the healing period when temporary disability is paid but not for permanent disability which is to be made for all time). The circuit court in General Motors Corporation further cited two supreme court decisions which emphasize that there must be actual wage loss to collect temporary disability and that a theoretical wage loss does not suffice, Employers Mut. L. Ins. Co. v. Industrial Commission, 230 Wis. 270, 281 (1939) and Delta Oil v. Industrial Commission, 273 Wis. 285, 291 (1956).

In the Employers Mutual case, the supreme court held that

One who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages. Compensation must bear some reasonable relation to the loss which an injured employee has sustained.

Employers Mut. L. Ins. Co. v. Industrial Commission, at 284 N.W. 553. On the other hand, the commission has declined to read Employers Mutual too expansively, noting:

If the Employers Mut. were construed as the respondent suggests, there would be no temporary total disability paid during a compulsory vacation under any circumstances, and no need for Wis. Stat. § 102.43(8). Nor would workers who have returned to work subject to restrictions during a healing period be eligible for temporary disability after being laid off, or after they were fired. However, workers do get benefits under those circumstances because their ability to work remains impaired. See, for example, Brakebush Bros. Inc. v. LIRC, 210 Wis. 2d 623 (1997).

Kluge v. Curwood Inc, WC Claim No. 2001-041333 (LIRC, January 13, 2006).

In fact, the applicant here cites the supreme court's decision in Brakebush --a case involving a worker's eligibility for temporary total disability after the employer discharged him for misconduct--which states:

an injured employee who has been terminated is nonetheless entitled to disability benefits because the employee continues to be limited by the work-related injury. It is the injury, not the termination, that is the cause of the employee's economic loss.

Id., at 210 Wis. 2d 635.

In Brakebush, the worker was discharged during his healing before returning to work on temporary work restrictions. The court of appeals reached a similar result recently in a case where a worker, though still in a healing period, had returned to work but was subsequently discharged for misconduct. Emmpak Foods, Inc., v. LIRC, 2007 WI App 164, ___ Wis. 2d. ____, 737 N.W.2d 60. The court of appeals rejected the argument that because the applicant had returned to work, the discharge rather than the work injury necessarily caused the wage loss, noting that "though his injury was the reason Emmpak stopped paying [the worker], the injury was still partially responsible for his economic loss, since he was severely restricted in his ability to find other work." Id., at 2007 WI App 164, ¶ 13.

The applicant cites the Neal & Danas, Worker's Compensation Handbook § 5.9 (5th ed. 2007) which provides that a totally disabled employee remains entitled to temporary total disability benefits even if enrolled in school, hospitalized for reasons unrelated to the work injury or incarcerated, and notes that there is no statutory basis for denying benefits in such cases. However, citing the unpublished General Motors Corporation decisions, the Handbook also states that "[i]t has been successfully argued that an employee who has a renewed period of disability, but who, because of retirement, has clearly withdrawn from the labor market, has no 'wage loss'' and is therefore ineligible for temporary disability benefits." Id., at § 5.4.⁽³⁾

As set out above, Wis. Stat. § 102.43 premises the payment of temporary disability upon a wage loss or loss of earnings. The commission concludes that the applicant is ineligible for the temporary total disability for the period beginning in March 2005 because he did not sustain any wage loss.

In this case, unlike the Brakebush and Emmpak cases, the applicant's separation from employment occurred after the end of healing and the temporary disability compensation is claimed for a period of renewed disability beginning years after the separation. When the claim for renewed temporary disability began in March 2005, the applicant was not earning wages and had not been earning wages for several years. Further, while the commission is not bound by the General Motor Corporation decisions, which are not published appellate decisions, the Employers Mutual and Delta cases both hold that there must be more than a theoretical wage loss to be eligible for temporary disability.

In this case, the commission is satisfied that, due to his retirement and not due to the work injury, the applicant was not earning wages and no longer attached to the labor market in March 2005 when the applicant's claim for renewed temporary disability began. Like the ALJ, the commission concludes the applicant made no serious effort to secure post-retirement employment, despite his testimony that he filled out three job applications since his retirement in 2002. Because the point of temporary disability is to allow recovery for current wage loss, and the applicant in this case had at best only a theoretical future wage loss due to his separation from the labor market, his claim for temporary total disability benefits must be denied.

3. Award.

However, the applicant has incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury, identified at exhibit E as follows: from Milwaukee Spinal Specialists, Stephen Robbins, M.D., $60,885.00, of which $37,302.24 has been paid by the WC insurer, $2,3476.76 has been adjusted from the bill, and $106.00 remains outstanding; from Columbia Hospital, $51,003.93, of which $47,081.96 has been paid by the WC insurer, $3,601.85 has been adjusted from the bill, and $320.12 remains outstanding; from Newport Anes. Providers, Dr. Cheng, M.D., $2,865.00 all of which remain outstanding; Center for Diagnostic Imaging, $5,997.00, of which $3,886.82 has been paid by the WC insurer and $2,110.18 has been adjusted from the bill. The applicant also incurred, and paid out of pocket, $349.97 in prescription expenses. The outstanding amounts on expenses shall be ordered paid under Wis. Stat. § 102.42, to the extent the respondent has not already done so.

As stated above, the applicant has undergone extensive treatment, including surgical treatment, for his work injury and has sustained permanent disability. Pursuant to Wis. Stat. § 102.18(1)(b), this order shall be left interlocutory to permit further findings and awards for additional disability compensation and medical expenses as might arise in the future.

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

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

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

1. To Milwaukee Spinal Specialists, Stephen Robbins, M.D., One hundred six dollars ($106.00) in medical treatment expenses.
2. To Columbia Hospital, Three hundred twenty dollars and twelve cents ($320.12) in medical treatment expenses.
3. To Newport Anes. Providers, Dr. Cheng, M.D., Two thousand, eight hundred sixty-five dollars ($2,865.00) in medical treatment expenses.
4. To the applicant, Three hundred forty-nine dollars and ninety-seven cents ($349.97) in paid of pocket prescription expenses.

Jurisdiction is reserved for further findings, orders, and awards as are warranted and consistent with this decision.

Dated and mailed October 29, 2007
keysca . wrr : 101 : 1 ND § 5.4, § 5.9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Robert T. Ward
Attorney Gary S. Stanislawski

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(1)( Back ) Recently enacted Wis. Stat. § 102.43(9) likewise states:

102.43 (9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period... and then states a number of exceptions when benefits are not paid despite loss of earnings. While this statutory subsection was not in effect on the date of injury and thus does not apply here under Wis. Stat. § 102.03(4), it emphasizes the wage loss requirement under the statute.

(2)( Back ) General Motors Corporation v. LIRC and Edward W. Hoff, 83-CV-1339 (Wis. Cir. Rock County November 22, 1983), aff'd case no. 93-2378 (Wis. Ct. App. April 25, 1985). These cases have been reproduced at the website for the Wisconsin Association of Worker's Compensation Attorneys, Inc., at http://www.wawca.org/forms_tools_tips.htm.

(3)( Back ) In Norenberg v. Miron Construction, WC claim no. 94-0333753 (LIRC, May 25, 1995), the commission did hold that temporary disability may be paid when a work injury forces an injured worker to stop working during his or her healing period, even though the cessation of employment during the healing period is later characterized as a retirement. In that case, the commission distinguished General Motors Corporation because that case involved a new period of temporary disability that arose many years after the applicant had retired due to the permanent effects of his work injury. More recently, in Erdman v. Stora Enso North America Corp., WC claim no. 2005-001532 (LIRC, June 2, 2006), the commission found the General Motors Corporation line of reasoning persuasive, and denied temporary total disability to a worker who took a voluntary early retirement, which the commission found was not motivated by the applicant's disability from his injury. The commission did, however, award benefits for loss of earning capacity in that case.

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