MERI BETH HOLZEM, Applicant
QUAD GRAPHICS INC, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed
July 30, 2013
holzemm_wsd.doc:101: ND6 6.22; 6.27
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
The applicant injured her back on November 28, 2001, while working for the employer. She eventually required a lumbar discectomy/fusion surgery that was done on July 9, 2003. On February 12, 2004, the applicant's treating surgeon, James P. Hollowell, M.D., declared an end of healing with a permanent partial disability on a functional basis at 10 percent to the body as a whole. He also set the following restrictions:
Permanent restrictions stating not to lift anything greater than 40 lb, not to work more than 48-hours per week with no mandatory overtime; also, no excessive bending or twisting.
Exhibit E, page 1.
The applicant was able to continue to work for the employer under the restrictions set by Dr. Hollowell for many years. In fact, she continued working for the employer until she was laid off for economic reasons in January 2009. She received unemployment insurance benefits and was eventually found eligible for social security disability as of June 2011.
After being laid off by the employer, the applicant applied for work with numerous employers. In fact, the applicant was hired for a job with a plastic company and worked there for nine days. Her job involved sitting on a bucket about six inches off the ground and packing parts, which she did with extreme difficulty. She quit that job after nine days, apparently due to the pain, and continued to look for work. However, she was not successful in finding work and eventually applied for and qualified for social security disability. After qualifying for social security, she stopped looking for work.
At issue here is the applicant's claim for permanent partial disability on a vocational basis for loss of earning capacity following her layoff from her time-of-injury employer, Quad Graphics. When a worker, such as the applicant, returns to work for his or her time-of-injury employer, Wis. Stat. § 102.44(6)(b) permits the department to make an award for loss of earning capacity if the time-of-injury employer subsequently terminates the worker's employment. Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 16. Here, the applicant was laid off by her time-of-injury employer for economic reasons. Both sides have submitted expert vocational opinion to assess the applicant's loss of earning capacity.
The applicant's expert, Sarah Holmes, opined that with the restrictions set by Dr. Hollowell the applicant retains selective access to occupations such as mail clerk, inspector, packaging machine operator, forklift operator, hand packager, machine operator, retail sales clerk, telemarketer, security guard, et cetera. She estimated that the average wages for those occupations range from $12.00 to $15.76 per hour and that the applicant therefore had a loss of earning capacity of 25 to 30 percent, which included the applicant's lost access to jobs in the labor market.
The respondent for its part relied on the vocational opinion of Barbara K. Lemke, who opined that because the applicant had removed herself from the labor market and did not plan to pursue gainful employment in the future, she had no earning capacity whatsoever and assessing a loss became a moot point. However, Ms. Lemke opined that if the applicant were to make herself available to the labor market she would have a 15 to 20 percent loss of earning capacity under the restrictions set by Dr. Hollowell. Ms. Lemke opined the applicant could work in occupations such as print and bindery worker, industrial truck and tractor operator, cutter and trimmer, weigher/measurer, packager, production worker, or machine feeder operator.
The ALJ awarded loss of earning capacity at 25 percent. The respondent challenges that award, pointing to the fact the applicant is no longer looking for work. The respondent asks the commission to adopt the opinion expressed by Ms. Lemke in her report and testimony at the hearing, and conclude that because the applicant is no longer looking for work she has no earning capacity to lose.
The supreme court has rejected this argument in the past. In Kohler v. ILHR Department, 42 Wis. 2d 396, 403 (1969), the supreme court held that it is a worker's disability, not the separation per se, that is the focus of a disability claim. Thus, a worker can receive compensation for loss of earning capacity in voluntary retirement cases. The court based this conclusion on the possibility that a worker might change his mind and decide to unretire-that even a retired worker has some vocational capacity that was reduced or eliminated by a work injury-and that it would be improper to totally discount a loss of earning capacity claim under that circumstance.(1)
Further awarding loss of earning capacity, albeit possibly at a lower rate, when an applicant ceases looking for work, is supported as well by the administrative code. Wisconsin Stat. § 102.34(1)(h) [ed. note to online version: cite should be Wis. Admin. Code DWD § 80.34(1)(h)] describes efforts to find suitable work as a factor that might be considered in awarding a loss of earning capacity claim. It does not state that making no such efforts-that is removing oneself from the labor market-completely forecloses a claim. Thus, the commission has held that a worker may still get an award for loss of earning capacity even after he or she stops looking for work. See, for example, Binder v. Neenah Foundry Co., WC Claim No. 2009-010250 (LIRC May 24, 2011), Veleke v. Speed Queen Co., WC Claim No. 1995-010295 (LIRC Nov. 30, 2011) (and cases cited therein), and Kersten v. Kohler Company, WC Claim No. 1999-035513 (LIRC May 31, 2005) (and cases cited therein).
Here, after trying unsuccessfully to find work for two years, the applicant applied for and received social security disability compensation because of her back injury. The receipt of social security, she admits, contributed to her decision to retire. But it was the work injury itself that led to the disability that made her eligible for social security. That is, the facts here are not one of a strictly "voluntary" retirement by someone who just elects to stop working. Rather, the commission is satisfied that the work injury caused the applicant's loss of earning capacity as evidenced by her inability to find work prior to qualifying for social security.
cc:
Attorney Dennis H. Wicht
Attorney Joseph P. Danas, Jr.
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