Wis.LIRC WC Decision: Jakubiak - April 12, 1999 - ND � 5.20 - Non-Schedule Injury; � 5.23 - 85 percent rule; � 5.26 - Actual Wage Loss Concept; � 3.38

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

ANTHONY JAKUBIAK, Applicant

WROUGHT WASHER MFG INC, Employer

SENTRY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994033075

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:

Delete the seventh (second last) paragraph of the ALJ's Findings of Fact and Conclusions of Law, and insert:

"An interlocutory order is appropriate in this matter to reserve the applicant's right to make any and all additional claims as a result of this injury, including without limitation claims for treatment expense and associated disability (including loss of earning capacity), consistent with this decision."

ORDER

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

Dated and mailed April 12, 1999
jakubia . wmd : 101 : 5 ND � 5.20 5.23 5.26 3.38

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Background.

The employer and insurer (collectively, the respondent) conceded and paid a 1994 occupational back injury from the applicant's years of heavy work, which resulted in the need for a laminectomy surgery at L4-5 in 1995. The applicant returned to work for the employer after the laminectomy surgery, but at a reduced hourly wage and for reduced hours. Although the employer would have continued to employ the applicant, he quit his job in 1996 and moved to another part of the state. Thereafter in January 1997, he reinjured his back at the same level off-duty when he felt a snap in his back while scraping ice off a vehicle window the day after walking through groin-deep snow and shoveling snow off a trailer roof. He underwent a right L4-5 disc decompression surgery in March 1997.

This case presents two issues: first, whether the applicant's reinjury and disability in 1997 was caused by the 1994 work injury; and second, if so, whether his entitlement to LOEC following the 1997 injury should be barred by the 1996 quit.

Regarding the re-injury in 1997, treating surgeon Freeman opines the applicant reinjured a previously-injured part of his back, causing disability by aggravating a pre-existing degenerative condition beyond its normal progression. He also opined the applicant sustained an additional five percent permanent partial disability to the whole body as a result of the re-injury.

The insurer offered the opinion of Stephen Weiss, M.D. His diagnostic impression is status post L4-5 laminectomy and disc excision in 1995, and recurrent laminectomy and excision of recurrent herniated disc. He thought the recurrent disc herniation represented a new injury from shoveling snow, noting that the normal recurrence rate for herniated disc is fairly low at less than 10 percent. He also noted that the history, stiffness after shoveling snow and radicular problems within 24 hours, was fairly common for this type of injury. He rates permanent partial disability at an additional 9 percent.

The ALJ found that the 1997 disc herniation was caused by the 1994 work injury. Accordingly, she awarded compensation for fifteen weeks of temporary total disability, five percent permanent partial disability on a functional basis, and medical expenses. The ALJ declined to award permanent disability based on loss of earning capacity because the applicant had not yet communicated his restrictions to the employer and requested the employer to accommodate them. She also issued an interlocutory order "to reserve the applicant's right to make any and all additional claims as a result of this injury, including but not limited to a claim for treatment expense and associated disability."

The respondent appeals. It asserts that its doctor credibly opined the applicant suffered a new injury, and that the commission should therefore find that the medical treatment and disability following the January 1997 injury are not compensable. It also asserts the ALJ's reservation of jurisdiction in the ALJ's order is ambiguous, and wants it clarified to state that the applicant may never bring a claim for loss of earning capacity based on the work injury.

2. Discussion.

a. Causation.

Turning first to causation, the respondent makes essentially two separate arguments, a medical one and a legal one. The medical argument is that Dr. Weiss' opinion that the snow shoveling caused a new disc injury is more credible than treating doctor Freeman's opinion that the applicant simply experienced an injury as a result of his pre-existing weakness from the 1994 injury.

However, the commission concludes that the ALJ correctly credited the opinion of Dr. Freeman instead of the opinion of Dr. Weiss. Everyone, including Dr. Weiss, refers to the herniation as "recurrent." However, Dr. Weiss also seems to suggest that the herniation was actually not "recurrent" because herniations recur only ten percent of the time, and snow shoveling can cause a disc herniation. See Exhibit 1, Weiss report at page 7, Response to Specific Interrogatory 1." Second, of course, the applicant testified and consistently reported to his doctors that the pain started with the window scraping, not snow shoveling. Third, Dr. Freeman's operative report refers to scar tissue in the L4-5 area, suggesting either a long- standing problem or at least a less-than-satisfactory repair from the 1995 laminectomy. Fourth, the applicant, before his work injury, could perform unquestionably heavy work lifting a guiding steel through a shear. After his work injury, IME Weiss suggests, he hurt his back pushing snow off a roof. The commission must conclude that the applicant's condition following the first injury was the cause of his re-injury and additional disability in 1997.

The respondent's legal argument on causation attempts to import the supreme court's Lewellyn (1 ) analysis to off-duty injuries. The respondent points out that, had the applicant sustained a recurrent herniated disc while shoveling snow in subsequent employment, the commission would have held the subsequent employer liable. While this may be true, depending on the medical evidence, it does not lead to the conclusion that the employer in this case is not liable.

Lewellyn deals with the "as is" rule. If a worker has a pre-existing or "as is" condition, and if employment makes the condition worse, the employer is liable. It does not follow, however, that if employment causes the "as is" condition in the first place, an off-duty aggravation or worsening of that condition is not compensable. In fact, the courts have specifically reached the opposite result. (2 ) Thus, the court of appeals has recently held:

"A work-related injury that plays any part in a second, non work- related injury is properly considered substantial factor in the re- injury. It will not be a substantial factor, however, where the second injury alone would have caused the damage. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work- related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.

Lange v. LIRC, 215 Wis. 2d 558, 656 (Ct. App., 1997).

Here, the recurrent herniation in 1997 is at the same level as the herniated disc in 1994. All the doctors, including Dr. Weiss, refer to it as a "recurrent herniated disc." Even if it were to credit Dr. Weiss' opinion, the commission is not certain it could conclude the 1997 disc injury would have happened exactly the same way had it not been for the occupational back disease causing the 1994 injury.

b. LOEC

Assuming the applicant sustained a compensable back injury, the next question is how the applicant's decision to quit the employer in 1996 should affect his loss of earning capacity claim. Ordinarily, a worker with an unscheduled injury is entitled to permanent disability calculated on loss of earning capacity. However, an employer has a statutory defense to a loss of earning capacity claim, and may limit the permanent disability to the actual functional disability, if it re-employs the applicant at 85 percent or more of his pre-injury wage.

Specifically, Wis. Stat. � 102.44(6) provides in relevant part:

"102.44(6)(a) Where an injured employe claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.

"(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

"(f) Wage loss shall be determined on wages, as defined in s. 102.11. Percentage of wage loss shall be calculated on the basis of actual average wages over a period of at least 13 weeks.

"(g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employe without reasonable cause, the employe is considered to have returned to work with the earnings the employe would have received had it not been for the refusal. (3 )

The ALJ, pointing to the applicant's quit in 1996, refused to award permanent disability based on loss of earning capacity at the hearing. However, her decision suggests the claim for loss of earning capacity could be resurrected if the employer refused to provide the applicant work within his restrictions after those restrictions were communicated to the employer. The respondent asks the commission to amend the ALJ's decision finding the applicant is forever barred from raising a loss of earning capacity based on the compensable injury in 1994.

However, the ALJ's decision already goes about as far as the law permits in the respondent's favor. The commission does deny loss of earning capacity benefits if a worker is re-employed by the time-of-injury employer at 85 percent of the pre- injury wage, but then quits the re-employment for reasons unrelated to the work injury. The commission did this implicitly in Petterson v. LIRC, case no. 87-1267 (Wis. Ct. App., February 4, 1988), and expressly in Merrill Kummer v. Industrial Air Products, WC case no. 92019275 (LIRC, June 30, 1995). The commission reached a similar conclusion where an injured worker was fired for cause, Terry Ann Mallette v. Hartford Finishing Inc., WC case no. 93036016 (LIRC, July 31, 1995). In both Kummer and Mallette, the commission expressly made the order barring an award for loss of earning capacity final.

However, this case differs from those cases on two bases. First, in the cases cited above, the disability causing the loss of earning capacity arose before the worker quit his or her re-employment. Here, the applicant's disability and permanent work restrictions arose in 1997, after the 1996 quit. Rather than holding that the 1996 quit prospectively barred a claim for loss of earning capacity based on permanent disability or permanent work restrictions which did not yet affect the applicant, the ALJ in this case reasonably delayed deciding the issue until the employer had a chance to offer work within the restrictions.

Second, when the applicant returned to work with Wrought Washer Manufacturing following the 1994 injury, he was not paid 85 percent of his pre-injury wage as is required under Wis. Stat. � 102.44(6)(a) to bar a claim for loss of earning capacity. Over a one-year period after returning to work, the applicant earned less than 83 percent of his pre-injury wage. (4 ) Under Wis. Stat. � 102.44(6)(e), the wage loss must be shown over a period of at least 13 weeks; here the wage loss exceeded 15 percent for a full 52-week period. (5 )

In other words, the Wis. Stat. � 102.44(6)(a) disqualification was never triggered by the applicant's return to work, so the applicant's subsequent quit does not bar a claim for loss of earning capacity. The commission recently reached the same result, in a case where a worker was fired for absenteeism after returning to work from a work injury. Kowalchuk v. Sunny Slope Grading, WC case no. 90067813 (LIRC, July 29, 1998). In that case, because Mr. Kowalchuk established that he had not been paid at least 85 percent of his pre-injury wage in the first thirteen weeks after he returned to work, the commission allowed him to bring a claim for loss of earning capacity, though it awarded a relatively lower amount based on the misconduct discharge. See Wis. Admin Code � DWD 80.34(1)(h).

In short, the commission is not certain it may apply Wis. Stat. � 102.44(6)(a) retroactively to a quit occurring before the claim for loss of earning capacity has ripened. Second, even if it could, Wis. Stat. � 102.44(6)(a) would not have barred the applicant's claim for loss of earning capacity back in 1996 while he was still working for the employer because he was not earning 85 percent of his pre- injury wage. Reserving the issue of loss of earning capacity for another hearing under these circumstances does not prejudice the employer.

cc: ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

ATTORNEY BRADLEY C LUNDEEN
MUDGE PORTER LUNDEEN & SEQUIN SC

Appealed to Circuit Court. Affirmed September 9, 1999.

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Footnotes:

(1)( Back ) Lewellyn v. DILHR, 38 Wis. 2d 43 (1968).

(2)( Back ) Burton v. ILHR Department, 43 Wis. 2d 218, 226 (1969)(court upheld award where worker hurt his back sliding down fire-pole and herniated his disc nine months later in sneezing attack; applicant's doctor testified a the fire-pole incident weakened the wall of the disc but the off-duty sneeze caused actual protrusion.) Lange v. LIRC, 215 Wis. 2d 558, 562 (Ct. App., 1997)(court reversed LIRC and found injury compensable where work injury caused focal disc herniation, then off-duty fall one year later caused the previously herniated disc to protrude and fragment.)

(3)( Back ) The department's interpretative footnote to Wis. Stat. � 102.44(6) provides: "102.44(6) provides that in cases of non-scheduled injury permanent partial disability is to be determined on the basis of the physical limitations without regard to loss of earning capacity where the employe has returned to work for the same employer as at the time of injury at a wage loss of less than 15 percent. A good faith offer of employment refused by the employe without reasonable basis has the same effect as actual re-employment. The claims subject to this section including those upon which an award is issued remain open for the period of the statute of limitations in the event that there is a termination of the employment or a wage loss of 15% or more occurs."

(4)( Back ) The conceded average weekly wage at the time of injury in 1994 was $609.92, which yields a 52-week wage of $31,715.84. His actual earnings for the 52-week period before his injury were apparently $31,597.38. Exhibit 4. However, in the period from April 1, 1995 through April 20, 1996 (which included slightly more than 52 weeks of work), the applicant earned only $25,987.02. Exhibit 3.

(5)( Back ) One might argue that the 85 percent rule requires comparison of hourly wages rather than actual earnings. However, Wis. Stat. � 102.44(6)(a) refers to "wage loss" not a decrease in hourly wage, and the commission and the courts usually look to weekly wages rather than an hourly wage to determine wage loss in relation to the 85 percent rule under Wis. Stat. � 102.44(6)(a). Faul v. LIRC, case no 96 CV 487 (Wis. Cir. Ct. Sauk Co., October 19, 1997); Kowalchuk v. Sunny Slope Grading, WC case no. 90067813 (LIRC, July 29, 1998); Woodruff v. Milco, WC case no. 82-026490 (LIRC, August 12, 1991); Thomas v. Koehring Port Washington, WC case no. 86-057082 (LIRC, February 7, 1992); Vertin v. Kohler Co., WC case no 88-018245 (LIRC, February 28, 1992); and Petasek v. Cub Foods, WC case no. 89-043592 (LIRC, April 8, 1992).