RAYMOND BINDER, Applicant
NEENAH FOUNDRY CO, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
The applicant filed an application for hearing in November 2008, seeking compensation for permanent total disability due to occupational exposure to dust and fumes with a May 23, 2007 date of injury. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on April 15, 2010 with a close of record on July 10, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $656. Although the respondent did not concede liability for a compensable injury as of the date of the hearing, it had paid compensation for various periods of temporary disability, as well as compensation for permanent partial disability at ten percent to the body as a whole totaling $26,200. The ALJ identified the issues to be heard as follows: (1) Did applicant sustain a lung disease arising out of his employment with Neenah Foundry? (2) If yes, what was the nature and extent of the disease? (3) Are respondents liable for the treatment expenses listed on Exhibits F and G? and (4) Did applicant suffer a loss of earning capacity as a result of his lung disease that entitles him to either permanent total disability benefits or permanent partial disability benefits?
The ALJ issued his decision on August 12, 2010. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in 1947. On appeal, neither party disputes the ALJ's finding that the applicant suffered from work-related asthma which was caused by an appreciable period of workplace exposure to dust, fumes and smoke in the employer's foundry. Nor does either party dispute the ALJ's finding that the appropriate date of injury is May 22, 2007.
On that day, Linda K. Onson, APNP, took the applicant off work based on a diagnosis of asthma/COPD. He returned to work, but continued to follow up with Nurse Onson and Brad Lauderdale, M.D., of his medical clinic's pulmonology department over the ensuing months. After the applicant had been seen in urgent care for respiratory symptoms on August 8, 2008, Ms. Onson took him off work again on August 11, 2008, due to exacerbation of his symptoms. At that point she noted:
Unfortunately, he does continue to work at the Neenah Foundry. He has about one year left there until he can retire and he is just trying to make it. He knows he needs to work in a cleaner environment. He does wear a hood but still feels that there is a lot of dirt in the air.
Nurse Onson kept the applicant off work the following week and in her note dated August 18, 2008, she reported:
He does work at the Neenah Foundry and has been off work for the past week. He continues to feel that he cannot change jobs but he knows he needs to. He is just trying to finish up another year or 2 until retirement. At the foundry he wears a mask but he still can sense the fumes.
Nurse Onson kept the applicant off work on August 25, 2008, due to his symptoms.
On September 3, 2008, the applicant saw Marilyn K. Shutte, APNP, another nurse in the clinic's pulmonology department. She continued to keep him off work noting:
He continues off of work from the Neenah Foundry. He would love to find a job elsewhere as he is exposed to significant amount of dust there.
When the applicant returned to the clinic on September 11, 2008, Ms. Onson kept him off work and noted: "He is hopeful he can find a different job and he has started to look for a different job."
On October 9, 2008, the applicant returned to Ms. Onson who noted the following:
COPD exacerbation has resolved and improved. Mr. Binder is cleared to return back to work at the Neenah Foundry. Paperwork was completed for him to return to work on 10/13/2008. He will continue to breathe as clear of air as possible. He will try and stay away from smokers.
However, Ms. Onson also noted on the same day:
He is quite reluctant to return to the Neenah Foundry, as he is concerned he will flare up again. He is afraid he will become sick in the near future, and will cause problems with his job and sick time available. He is hoping that he will be able to retire from the Neenah Foundry in the next year or 2. He knows he needs to get away from the dirty air there. There are also a lot of people that smoke cigarettes, and he tries to stay away from them.
The applicant returned to work on or about October 13, 2008. On October 30, 2008, the applicant was seen by Dr. Lauderdale "for evaluation of relapse of pulmonary symptoms." The doctor took the applicant off work, stating:
My overall plan would be to treat with prednisone until spirometry is back to the level seen in September and early October. At that point I would have him try returning to work without reducing the prednisone dose to see if there is exacerbation with work exposures even with prednisone. If there is then he can clearly cannot (sic) return to work at Neenah Foundry.
On November 5, 2008, the applicant called the doctor's office to ask the doctor to give him an excuse to continue off work. The doctor refused and told him to keep his appointment. When he returned to Dr. Lauderdale's office the following day, November 6, 2008, Nurse Onson noted:
Mr. Binder has returned to clinic today to review his asthma exacerbation. He was in our clinic one week ago and was once again showing marked deterioration after returning to work at the Neenah Foundry.
Ms. Onson and Dr. Lauderdale agreed to keep the applicant off work for one more week. The applicant returned to Ms. Onson on November 17, 2008, who noted that he was still off work. He told Ms. Onson he felt he had been improving but his wife was concerned he would get back into the foundry and his condition would flare again.
When the applicant returned to the clinic on December 1, 2008, Ms. Onson noted he was "anxious to know if we are going to put him back into the foundry." She added:
Mr. Binder would prefer to not go back to the foundry. However, that does not fit with our plan. I will call Mr. Binder after speaking with Dr. Lauderdale as to our next step in evaluating the foundry's effect on his asthma and COPD.
Thereafter, Ms. Onson noted that she discussed the case with Dr. Lauderdale, who directed the applicant return to work at Neenah Foundry.
After one week, on December 8, 2008, the applicant was seen again in the pulmonology clinic where Ms. Onson noted:
Mr. Binder has returned to clinic today to review his asthma exacerbation. He had been off of work from the Neenah Foundry for several weeks recovering from a marked deterioration in lung function. We had treated him with prednisone...spirometry test and his report were stable. This past week we have attempted to send him back in to the Neenah Foundry while on prednisone...Within 4 days he could not breathe. He found it hard to walk, and he was coughing so hard he was noticing some small dots of blood. He was supposed to have worked two days ago and did not go in to the foundry.
Ms. Onson included the following impression and plan in her note:
Asthma exacerbation after return to work at the Neenah Foundry. [The applicant] will stay off of work from the Neenah Foundry. He will continue with his prednisone.
The applicant has not worked for the employer or elsewhere since December 8, 2008.
The applicant returned to the pulmonology clinic again on December 22, 2008. At this point, Dr. Lauderdale set up the following plan:
1. I consider [the applicant] to be disabled from work due to his marked sensitivity to multiple triggers, especially including the dust and fume at the Neenah Foundry but this would also include other forms of dust, smoke, and even cold air exposure getting to and from work.
2. [The applicant] will continue on his current medicines...The plan at this time is to try to get his lung function back to his previous best...Short-term disability form completed today.
On March 11, 2009, Dr. Lauderdale noted that his asthmatic COPD had remained stable, adding:
The patient is not working because returning to his previous work environment clearly caused rapid deterioration of his respiratory status. This was demonstrated several times.
On April 13, 2009, Dr. Lauderdale stated: "I continue to feel that he cannot return to work at Neenah Foundry due to the repetitive severe exacerbations triggered by the inhalation exposures at that occupation."
The clinic notes for the month of June 2009 indicate the applicant and Dr. Lauderdale were having an ongoing dispute about the extent of the applicant's permanent disability. On June 17, 2009, Dr. Lauderdale wrote the following "to whom it may concern" letter:
[The applicant] has asthmatic chronic obstructive pulmonary disease and is dependent on low dose prednisone treatment for control. He has moderate pulmonary function impairment, which is permanent. I consider him totally and permanently disabled from manual labor and from factory work or other work involving exposure to dusts and irritating chemicals and fumes. He could conceivably perform sedentary work in a clean work environment such as an office.
In a treatment note for June 22, 2009, Dr. Lauderdale noted:
I was recently asked to write a letter stating that Mr. Binder is completely and permanently disabled from all gainful employment. I did not feel able to use that exact terminology since I believe he could in theory do sedentary desk work in a clean office environment. This, of course would involve work that he has no training or experience in and is probably an impractical option, but from a medical perspective, I do not think he is disabled from that type work.
There follows a notation of a phone call from the applicant to the clinic's pulmonology department in which the applicant stated that the letter sent to his employer was "wrong" and that he wanted it to state that he was permanently disabled.
On July 1, 2009, the employer sent the applicant a letter stating it had reviewed his permanent restrictions for a work-related illness and could not find any possible jobs that would fit his restrictions. The letter stated the applicant had been placed on "medical layoff status."
The applicant qualified for social security disability in February 2009. In addition, he receives a disability pension from the employer. He has made no effort to find work since he stopped working for the employer. The applicant acknowledged that he planned to retire from the employer after about 40 years of employment with the employer, and that his 40th year was 2008.
As noted above, the parties agree the applicant has sustained a compensable injury from his employment at Neenah Foundry. The issue is the nature and extent of his disability from that injury, specifically, his loss of earning capacity. This, in turn, rests on his work restrictions due to his compensable injury.
As noted above, Dr. Lauderdale has opined that the applicant was:
totally and permanently disabled from manual labor and from factory work or other work involving exposure to dust and irritating chemicals and fumes. He could conceivably perform sedentary work in a clean environment such as an office.
In an earlier report dated May 12, 2009, Dr. Lauderdale stated that the applicant's restrictions were to: "sedentary work; no dust, smoke, fume inhalation exposure." (Exhibit E). Dr. Lauderdale added in that note that the applicant was unable to return to work at Neenah Foundry.
The respondent relies on the report of Brian D. Harrison, M.D.
(Exhibit 1). Dr. Harrison states the applicant's workplace restrictions necessary due to his condition are as follows:
a. Needs to work in setting free of visible smoke or airborne dust.
b. Other than briefly, needs to avoid exposure to extremes of heat (greater than 80 degrees) and humidity (greater than 90% relative humidity). Likewise, needs to avoid more than brief exposure to cold air (less than 32 degrees Fahrenheit).
c. Needs to limit exertion to the light-medium category.
d. Not able to perform duties requiring use of respirators. He does not meet medical clearance for use of a respirator as per OSHA standard.
Both sides submit expert vocational opinion regarding these restrictions.
The applicant relies on the report of his vocational expert, John D. Birder. Mr. Birder noted the applicant was 61 and his age was a negative factor because he would have difficulty adjusting to new work settings, processes and tools. This problem, Mr. Birder felt, was accentuated by the fact the applicant had worked for the same employer for 40 years. He did not think most of the applicant's foundry skills were transferrable to occupations outside the foundry industry. Thus, Mr. Birder opined the applicant was limited to unskilled work in the future.
Based on the opinions of Dr. Lauderdale, Mr. Birder opined:
[The applicant] is limited to sedentary work in a clean office environment. He cannot be exposed to dust, chemicals or fumes. He cannot perform manual labor or factory work. Dr. Lauderdale references his future options from a theoretical medical perspective indicating that there is not a medical reason that he could not function in a "clean air environment."
Dr. Lauderdale also references that this is probably an impractical option given his lack of training and experience with this type of work. I would agree. [The applicant] has worked for over 40 years at the Neenah Foundry. He has worked solely in this manufacturing setting and does not have any skills or experiences that would prepare him for sedentary work in a clean environment. He is 61 years old and will have significant difficulty successfully adjusting to this type of sedentary work. Most sedentary jobs require education and/or skills that [the applicant] does not possess. He is limited to unskilled sedentary work. Unfortunately, there are few unskilled sedentary occupations in the Fox Valley labor market. Most of these are found in the manufacturing sector and in the types of environment that he needs to avoid.
Consequently, based on Dr. Lauderdale's opinions, [the applicant] is so injured that he can perform no services other than those which are so limited in quality, quantity and dependability that a reasonably stable labor market for them does not exist. I will consider him to be permanently and totally disabled and he has sustained a 100% loss of earning capacity.
Mr. Birder went on to opine:
Based upon Dr. Harrison's restrictions [the applicant] is limited to light-medium category work that is free of smoke, dust, and exposure to extreme temperatures and humidity. His work setting would be similar to a clean air environment. The light-medium work category is not an official physical demand category but usually refers to a lifting capacity of a maximum of about 30 pounds and frequently 15-20 pounds. This appears to be the primary difference between Dr. Lauderdale's and Dr. Harrison's restrictions since the environmental parameters are similar.
Based on Dr. Harrison's restrictions, then, Mr. Birder opined the applicant had limited access to occupations such as: convenience store clerk, counter clerk, motel clerk, order filler, hand packager, recreation attendant, and retail clerk.
Mr. Birder went on to opine that this type of work paid about $360 to $400 per week, which, when compared to his earning capacity at Neenah Foundry of about $715 per week, resulted in a 55 to 65 percent loss of earning capacity.
The respondent's vocational expert is John D. Woest. His report indicates the applicant told him that: "his early disability retirement paid essentially the same benefits comparatively to regular retirement. As such, Mr. Binder would have gained nothing to work through age 65." Exhibit 2, report of Woest, page 2. Based on this, and statements in some of the medical notes, Mr. Woest concluded that the applicant had removed himself from the labor market.
Mr. Woest went on to state this conclusion:
On the basis that Mr. Binder has admittedly removed himself from the labor market; the issue of his lost earning capacity becomes moot. He has fortunately qualified for a decent disability retirement package and appears reasonably well adjusted, sustaining no empirically defined loss of earning capacity.
However, should this circumstance change in the applicant's future, according to Dr. Harrison, Mr. Binder retains the functional ability to remain working. His primary restriction appears to associate with the need to work in a clean, climatically controlled work environment. His is otherwise capable of light-medium work.
Mr. Woest did not address the vocational effect of Dr. Lauderdale's restrictions because he did not read Dr. Lauderdale's report to give an opinion on
work-relatedness. Based on Dr. Harrison's restrictions, however, Mr. Woest felt the applicant could find work as a retail store clerk, counter attendant, order filler, hotel clerk, hand packer, and security guard. Comparing the wages in those occupations (about $344 per week) to his earning capacity before his injury (which Mr. Woest estimated to be $656 per week), Mr. Woest estimated the applicant sustained a loss of earning capacity in the range between 45 to 50 percent.
2. Discussion.
On this record, the commission, like the ALJ, concludes the applicant suffered from work-related asthma which was caused by an appreciable period of workplace exposure to dust, fumes and smoke in the employer's foundry. However, the applicant exaggerated his condition to Dr. Lauderdale so the doctor would opine he was disabled from work in any capacity. Dr. Lauderdale, of course, declined to opine that the applicant was totally disabled from work in any capacity, and instead opined the applicant could do sedentary work in a clean office environment. However, the commission cannot credit those restrictions either, as they are the product of the applicant's exaggerated complaints.
Instead, the commission credits the work restrictions set by Dr. Harrison which the commission, like the ALJ, believes more accurately reflect the applicant's current capacity for work. While Dr. Harrison's restrictions themselves are quite limiting, neither vocational expert has opined that the applicant is permanently and totally disabled on a vocational basis under them. Consequently, the commission is not persuaded that the applicant has made a prima facie case of odd lot unemployability.(1)
The next issue is whether the applicant is entitled to permanent partial disability on a vocational basis for loss of earning capacity. The ALJ found he was not, based on the facts the applicant was on the cusp of retiring when his lung disease forced him to leave his foundry job with the employer, that he had made no effort to find more new employment or participate in vocational rehabilitation, and that he had no financial incentive to do either.
Age, efforts to find suitable employment, and willingness to participate in reasonable rehabilitation efforts are all factors to be considered in assessing loss of earning capacity under Wis. Admin. Code § DWD 80.34(1). However, an award for permanent disability based on loss of earning capacity cannot be denied solely on the basis that a worker would have voluntarily retired soon anyway or that he had independent sources of income. This question was addressed at length in Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 402-04 (1969), where the court rejected the notion that the right to seek benefits for loss of earning capacity is necessarily cut off by a voluntary retirement.
In Kohler, the injured worker had worked for his employer for 52 years before retiring in 1962. At the time of his retirement, the worker observed: "After you're 66 years old ..., most of the time you haven't got much left of your life you might as well take a little retirement out of it." It was not until 1967, or five years after the worker's retirement, that the worker in Kohler, then 71, underwent the pulmonary test on which his disability claim was based. Even though the disability claim did not arise until after the worker had voluntarily retired the Kohler court upheld the commission's award for loss of earning capacity, noting that
"it was not the circumstances of the termination of employment that are controlling [but] the actual or medical or pathological condition of the worker at the time of the termination that is controlling."
Kohler, at 42 Wis. 2d 403-04.(2) The Kohler court went on to reject the argument that an injured worker could not receive compensation for loss of earning capacity in the absence of actual wage loss. Id., at 42 Wis. 2d 404-08. It upheld the commission's award for loss of earning capacity at 50 percent.
The commission has held that a situation where a worker chooses to retire after sustaining only minor disability from a work injury might lead to a different conclusion. See Stuart v. Delphi Automotive, WC Claim No. 1999-033288 (LIRC, September 10, 2002) and Thimm v. City of Mequon, WC Claim No. 2000-104046 (LIRC, February 18, 2005). However, that is not the case here. Even under Dr. Harrison's opinion, the employer could not return the applicant to his former work for the employer within his restrictions from the work injury. The applicant took what the employer characterizes as a "disability" retirement. In this case, the ALJ held, and the commission agrees, that the applicant's medical condition from the work injury led him to stop working for the employer.
Wisconsin Stat. § 102.44(5) allows for a reduction of the weekly compensation rate due to application of the social security reverse offset where an injured worker is receiving social security disability benefits. Indeed, that offset will have to be taken here. However, the law does not provide for a reduction in an award for loss of earning capacity simply because of the availability of "retirement" or pension benefits to an older worker who is disabled from a work injury. See: 5 Larson, Worker's Compensation Law, § 93.02[2][f] (LEXIS NEXIS 2010). Thus, the fact that the applicant has income from other sources does not alone warrant a reduction in the amount of loss of earning capacity, apart, of course, from its effect on his efforts to find suitable employment.
As noted above, the applicant's efforts to obtain work within his restrictions may be taken into account in determining how much permanent disability to award on a vocational basis for loss of earning capacity. The date of injury in this case, again is May 22, 2007. The applicant told Dr. Lauderdale's nurse on September 11, 2008, that he had started looking for another job. While the applicant testified at the hearing that he did not know what that note meant (transcript, page 23), the ALJ informed the commission that he believed the applicant had indeed been looking for work as recently as September 2008 and cited that as evidence that the applicant was exaggerating his symptoms. Moreover, at some point in 2007, the applicant worked for a janitorial service or "cleaning outfits" where he had supervisory duties. Transcript, page 46; exhibit 3,
In other words, after the date of injury, the applicant made at least some effort to find other work within his restrictions before he stopped working for the employer. The ALJ correctly points out there is no evidence that the applicant has tried to find work since he retired on disability. The lack of effort to find work--particularly in light of his exaggerated claim of disability--is a factor that militates toward a lower award. However, in light of the Kohler case the commission cannot find it disqualifies the applicant from any award for loss of earning capacity especially as the applicant's disability from the work injury led to his decision to stop working for the employer.
Willingness to participate in a reasonable vocational program is also a factor to be considered in making an award for loss of earning capacity. In this case, the commission is not inclined to reduce further the applicant's award based on unwillingness to participate in a reasonable retraining program. The applicant was 61 when he stopped working, and neither vocational expert suggests a plan for vocational retraining.
On this record, then, and taking into account the factors specified in Wis. Admin. Code § DWD 80.34, the commission concludes that the applicant has sustained loss of earning capacity at 45 percent, the low end of the range given by the respondent's vocational expert, Mr. Woest, into which the prior conceded permanent disability for functional loss at ten percent (100 weeks) is merged.
For a loss of earning capacity, then, the applicant is entitled to a total of 450 weeks of permanent partial disability compensation. As of February 1, 2009 (when the applicant began receiving social security disability), 66 weeks and 2 days of permanent partial disability compensation accrued at the weekly rate of $262 per week, totaling $17,379.33. There is no fee on this part of the award, as it was within the 100 weeks of permanent partial disability conceded by the respondent.
As of February 1, 2009, the applicant's award became subject to the social security reverse offset, and so he is entitled to weekly payments for permanent partial disability of $193.39 beginning on that date. As of May 15, 2011, a total of 119 weeks have accrued at that rate, totaling $23,013.41. Under Wis. Stat. § 102.44(5)(a), no fee is deducted from this amount.
The total accrued in permanent partial disability compensation to May 15, 2011, then, is $40,392.74. Deducting the $26,200 previously conceded and paid(3) leaves the amount of $14,192.74 currently due the applicant. That amount shall be paid within 30 days. Beginning June 15, 2011, the applicant shall be paid permanent partial disability at the rate of $838.02 per month, until the next social security redetermination date on January 1, 2012.
The applicant's attorney is entitled to a fee on the award accruing after the conceded 100 weeks of permanent partial disability. Thus, beginning on December 17, 2009, the attorney fee began accruing at the weekly rate of $48.35.(4) As of May 15, 2011, 73 weeks and 2 days totaling $3,545.67 has accrued in fees. That amount, plus costs of $887.82, shall be paid by the respondent from the social security reverse offset savings.(5) Beginning on June 15, 2011, the applicant's attorney shall be paid the fee on a monthly basis at $209.52 per month, until the next social security redetermination date on January 1, 2012.
The respondent shall remain liable for the remaining permanent partial disability as recalculated after the redetermination date.
The last issues are the claimed medical treatment expense and reservation of jurisdiction. Neither party has disputed the ALJ's findings on these points, and the commission therefore restates them in substance.
With regard to Exhibit F, except for the expenses incurred prior to May 22, 2007, all of the expenses itemized on Exhibit F were incurred for treatment reasonably required to either cure and relieve the applicant from the effects of his work-related asthma or were incurred to prevent further deterioration in his condition or to maintain the existing status of his condition. Although some of the treatment may have simultaneously relieved the applicant from the effects of his COPD, the applicant's asthma and COPD are so inextricably intertwined that it is impossible to separate the treatment expenses by disease. Consequently, the respondent shall pay for the aforementioned treatment expenses even though the treatment may have had a dual purpose.
Regarding the bill of Affinity Group Physicians, after subtracting $101.90 (May 16, 2007) plus $65.22 (May 23, 2007) that Network paid toward treatment expenses incurred prior to May 22, 2007, the respondent shall pay $4,756.59 to Network Health pursuant to Wis. Stat. § 102.30(7). After subtracting $15 (March 2, 2007) plus another $15 (May 29, 2007) that the applicant paid toward treatment expenses incurred prior to May 22, 2007, the respondent shall pay the applicant $470 as reimbursement for out-of-pocket treatment expenses. In addition, the respondent shall pay the outstanding balance due Affinity Medical Group Physicians in the amount of $92.94.
Regarding the bill of Fox Valley Pulmonary Medicine, the respondent shall pay United Healthcare Managed $726.93 pursuant to Wis. Stat. § 102.30(7). They shall also pay the applicant the sum of $594.27 as reimbursement of out-of-pocket treatment expenses. After adding in the charges that the applicant incurred for treatment on January 13, 2010, namely $117.67 plus $213.58, the respondent shall pay the outstanding balance due Fox Valley Pulmonary Medicine in the amount of $432.81.
Regarding the St. Elizabeth Hospital bill, after subtracting $363.44 that Network paid toward treatment expenses incurred prior to May 22, 2007, the respondent shall pay Network $422.60 pursuant to Wis. Stat. § 102.30(7). It shall also pay the applicant $20 as reimbursement for his out-of-pocket medical expenses.
The prescription expenses listed on Exhibit G were incurred for treatment reasonably required to either cure and relieve the applicant from the effects of his work-related asthma or were incurred to prevent further deterioration in his condition or to maintain the existing status of his condition. Consequently, respondent shall pay $1,110.22 to United Healthcare pursuant to Wis. Stat. § 102.30(7), and $261.78 to the applicant as reimbursement of out-of-pocket drug expenses.
The applicant's work-related asthma is not curable. According to Dr. Harrison, it has resulted in permanent partial disability. Consequently, this order shall be left interlocutory to permit such further findings, orders and awards as may be warranted 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 in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Raymond H. Binder the sum of Fourteen thousand one hundred ninety-two dollars and seventy-four cents ($14,192.74) in disability compensation and One thousand three hundred forty-six dollars and five cents ($1,346.05) in medical treatment expense.
2. To the applicant's attorney, Tony W. Welhouse, the sum of Three thousand five hundred forty-five dollars and sixty-seven cents ($3,545.67) in fees and Eight hundred eighty-seven dollars and eighty-two cents ($887.82) in costs.
3. To Affinity Medical Group Physicians, Ninety-two dollars and ninety-four cents ($92.94) in medical treatment expense.
4. To Fox Valley Pharmacy, Four hundred thirty-two dollars and eighty-one cents ($432.81) in medical treatment expense.
5. To Network Health, Five thousand one hundred seventy-nine dollars and nineteen cents ($5,179.19) in reimbursement of medical expenses paid.
6. To United Healthcare, One thousand eight hundred thirty seven dollars and fifteen cents (1,837.15) in reimbursement of medical expenses paid.
On June 15, 2011, and continuing on the fifteenth day of each month thereafter until the next social security redetermination date on January 1, 2012, the employer and it insurer shall pay all of the following:
1. To the applicant, Eight hundred thirty-eight dollars and two cents ($838.02) per month in disability compensation.
2. To the applicant's attorney, Two hundred nine dollars and fifty-two cents ($209.52) per month in fee.
The employer and its insurer shall remain liable for the remaining permanent partial disability as recalculated after the redetermination date.
Jurisdiction is reserved for further findings and orders as are warranted and consistent with this decision.
Dated and mailed
May 24, 2011
binder.rr:101:9 ND6 6.21; 6.27
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission consulted with the presiding ALJ concerning witness credibility and demeanor. The ALJ did not regard the applicant to be a very credible witness. He told the commission that the applicant's testimony at hearing was aimed more at supporting his claim for permanent total disability than at providing correct testimony. As an example, the ALJ observed that certain medical notes recited that the applicant told a nurse he was looking for other work (a statement the ALJ believed), whereas the applicant testified at the hearing that he did not know what that notation in the medical records was about (a statement the ALJ did not believe). The applicant was also less than forthcoming about his work with the cleaning services between 2004 and 2007.
The commission agrees that the applicant was not a very credible witness. However, for the reasons set out in the body of this decision, the commission must conclude that the record nonetheless supports the payment of permanent partial disability on a vocational basis for loss of earning capacity.
cc:
Attorney Tony W. Welhouse
Attorney Peter M. Farb
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