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

MERRILL M KUMMER, Applicant

INDUSTRIAL AIR PRODUCTS INC, Employer

HOME INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92019275

The administrative law judge issued his findings of fact and order in this case on November 14, 1994, following a hearing on September 29, 1994. Thereafter, the applicant submitted a timely petition for commission review of the administrative law judge's findings and order. The employer and the insurer (collectively, the respondent) and the applicant have both submitted briefs on the petition.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $422.00, and a February 28, 1992 compensable injury. The respondent conceded and paid $5,268.40 for temporary disability for various periods up to October 4, 1992, and certain medical expenses. The respondent also conceded and paid $7,200 in permanent partial disability, but asserted at the hearing that this concession and payment was made in error.

The issues in dispute are the nature and extent of disability beyond that conceded, and liability for additional treatment expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby substitutes the following for his findings of fact and order:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on October 7, 1950. He began working for the employer in 1984. The employer makes industrial blowers, and the applicant worked as a painter. His job involved lifting, bending, and moving equipment, while cleaning, painting and hanging parts. As noted, above the respondent concedes a work injury on February 28, 1992.

Prior to the date of conceded injury, the applicant had treated with a chiropractor, Frederick Hastings, for back pain. The applicant first saw Dr. Hastings after awakening with back pain in 1989, and was treated intensively in 1989 and again from late 1990 to early 1991. His three final visits were in April, June and August 1991. Although the applicant testified that the symptoms he saw Dr. Hastings about were for the lower left back, the treatment records show he complained often about the lower right back. He also testified he stopped treating with Dr. Hastings because his back had improved.

The applicant suffered the conceded work injury on February 28, 1992, while attempting to move a large wheel- shaped blower part by rolling it. The wheel did not move and the applicant's feet slipped. He felt a strain in his back, and experienced pain in his right lower back. He did not report the injury that day, but continued to work for 3.5 hours to finish his shift. He reported the injury on Monday, March 2, the same day he first sought treatment for the condition from a chiropractor, Lorelei Wakefield.

After some treatment, Dr. Wakefield referred the applicant to Marc Durette, M.D., who first saw the applicant on May 6, 1992. In his note for that date, Dr. Durette described the work injury. The doctor went on to discuss the applicant's medical history, including resolved back pain and chiropractic going back a couple of years. He also noted that the applicant described his current condition from the work injury as 50 percent improved. The doctor went on to diagnose a chronic muscle strain, and recommended continuing chiropractic treatment and work-hardening.

Dr. Durette released the applicant to work part-time on or about June 26, 1992. By August 1992, the applicant was working full time with a 25-pound lifting restriction. In a treatment note dated August 5, 1992, Dr. Durette indicated the applicant could be assessed for permanent restrictions, and prescribed a functional capacity evaluation. The evaluation was done on August 17, 1992, by an occupational therapist. The occupational therapist set a 55-pound limit for occasional lifting, a 20-pound limit for frequent lifting, a prohibition against crawling and more than occasional climbing, and an instruction to "avoid heavy carrying activities with left arm 20-25 pound restriction secondary to pain in low back."

As noted above, the applicant returned to full time work in August 1992. He was paid the same or more than he received at the time of the injury. In October 1992, the applicant took a voluntary "layoff." He testified:

"With regard to my layoff in October, 1992, the decision was between myself and the company. One of us would be laid off. I concluded that I would take the layoff. I could have insisted on continued employment because I had seniority."

The applicant testified that the employer had to lay off a worker because business was slow, and that the layoff was for an indefinite time not to exceed two months. In fact, the applicant was never recalled. Significantly, it does not appear that the applicant indicated to either of the vocational experts who examined him about his job history that the October 1992 layoff was either temporary or voluntary. The commission therefore concludes that the applicant essentially quit his job in October 1992 by voluntarily accepting an indefinite layoff when he could have continued to work.

Dr. Durette did not see the applicant again until March 1993, when he was referred by chiropractor Wakefield following complaints of right leg pain and numbness. Results from an EMG test were consistent with peripheral neuropathy. Dr. Durette ordered some metabolic tests and an MRI to determine the source of the leg pain/peripheral neuropathy.

The MRI showed a conjoined nerve root in the spine, a congenital condition. The MRI showed no evidence of a disc herniation. In a report dated May 5, 1993, Dr. Durette indicated he did not think that the conjoined nerve caused the leg pain and numbness, since the applicant had had the condition from birth. However, the metabolic tests showed diabetes. Dr. Durette attributed the applicant's leg pain and numbness/peripheral neuropathy to that condition. Indeed, the leg pain and numbness cleared up when the applicant began taking insulin. See Durette's report dated July 7, 1993.

After the leg pain and numbness resolved, Dr. Durette opined that the applicant had a residual 5 percent permanent partial disability to the body as a whole attributable to the work injury. He indicated the permanent disability rating was for chronic muscle pain in the back and hip. He opined the applicant's functional capacity remained as it was at the time of the August 1992 rating, unaffected by the resolved peripheral neuropathy complaints. His practitioner's report states the applicant was subject only to permanent restrictions as of July 7, 1993.

The applicant also offers the practitioner's report of chiropractor Wakefield, who defers to Dr. Durette. In addition, the applicant offered the report of a chiropractor hired by the respondent as an independent medical examiner, Richard Kopp. Dr. Kopp examined the applicant on September 29, 1992, and reported his findings on October 9. Dr. Kopp described the pre-injury back pain and chiropractic treatment, but stated that it was not causally-related to the applicant's disability in 1992 given the passage of time. Rather, he opined that the applicant still had residuals from the work-related lumbar injury of February 28, 1992, noting specifically muscle spasms and a limp. He also opined that the applicant had not yet reached maximum medical improvement from the work injury.

The respondent submits the report of its independent medical examiner, James G. Gmeiner, M.D. Dr. Gmeiner reported that the applicant suffered a work-related lumbosacral strain on February 28, 1992. He opined that the injury caused only temporary disability. Specifically, Dr. Gmeiner noted the history of prior back problems, and opined this prior condition was temporarily aggravated, accelerated and precipitated by the work injury beyond its normal progression. He also opined that the applicant's condition from the work injury had resolved without permanent disability by October 1992.

After examining the applicant, Dr. Gmeiner opined that the applicant was giving a submaximal effort and that he over-reacted to superficial stimulation. He questioned the need for any work restrictions. He essentially questions whether the applicant had any permanent disability at all, and concluded that if he did it was from the natural progression of his pre-existing condition.

Because the employer conceded a February 28, 1992 work injury and temporary disability through October 4, 1992, the primary dispute is the nature and extent of disability beyond that concession.

The first issue is the date on which the applicant reached an end of healing and was subject only to the permanent residuals, if any, from the work injury. The commission accepts Dr. Gmeiner's opinion that the applicant reached a healing plateau in October 1992. First, Dr. Durette himself prescribed a functional capacity evaluation to determine permanent disability in August 1992. Second, the applicant's complaints in 1993 were primarily for symptoms from peripheral neuropathy caused by diabetes and not work. Moreover, when Dr. Durette released the applicant to work with permanent restrictions in July 1993, he stated the August 1992 work restrictions still applied, indicating an end of healing around that time. In sum, the commission concludes that the applicant had reached an end of healing by October 4, 1992, when the respondent stopped paying temporary total disability.

The next question is the extent of his residual permanent disability. The commission notes first that Dr. Durette estimated permanent disability on a functional basis at 5 percent compared to disability to the body as a whole. The respondent initially admitted permanent disability at that level in its answer dated March 22, 1994. While it is true the respondent attempted to withdraw its concession of permanent disability at the hearing, the file contains no amendment to its answer submitted prior to August 4, 1994 when the notice of hearing was sent. See: section Ind 80.08, Wis. Adm. Code. The commission thus concludes that the employer remains bound by its admission of permanent partial disability at 5 percent compared to permanent total disability.

The commission appreciates that a voluntary payment of benefits by a respondent should not by itself be considered an admission of liability, Scholz v. Industrial Commission, 267 Wis. 2d 31, 40 (1954). However, the respondent here admitted liability for permanent partial disability in its answer and did not retract that admission until the very date of hearing. A claimant obviously may be prejudiced if he or she first learns at hearing that a previously conceded issue is again in dispute.

The next question is whether the applicant is eligible for permanent disability beyond the amount conceded based on loss of earning capacity. This question turns on potential application of the so-called "15 percent rule" under sec. 102.44 (6), Stats.

That section 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 percent.

" (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 a period a wage loss of 15 percent or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

" (g) For the 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."

The department explains the provision in its footnote 122 to the Wisconsin Worker's Compensation Act as follows:

"102.44 (6) provides that in case 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 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 cause has the same effect as an actual reemployment. The claims subject to this subsection 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 percent or more occurs."

Although sec. 102.44 (6)(b), Stats., refers to "reopening" awards, the commission has construed the provision to apply to cases where an employe is returned to work and either fired or quits before any permanent partial disability award is made. For example, in Donald E. Robb v. Brodhead School District, claim no. 87-016091 (LIRC, July 10, 1991), the applicant had returned to work following a 1987 work injury, but took early retirement in 1988 after telling his supervisor that 30 years of teaching was enough. The commission concluded that the applicant had retired for reasons other than his physical disability, and denied permanent disability for loss of earning capacity (although it awarded 3 percent functional permanent partial disability). In doing so, the commission reiterated its rule:

"In situations involving a termination or quit, the Commission and the Department exercise the statutory discretion to reopen the matter for assessment of loss of earning capacity only if the termination was without reasonable cause, or the quitting was due to physical or mental limitations, or to improper inducement to quit by the employer. This interpretation of the statute is consistent with the policy evident in section 102.44 (6)(g), Stats., which provides that if an 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 he/she would have received had it not been for the refusal."

The commission has expressly considered and rejected the argument that the commission lacked jurisdiction on a loss of earning capacity claim under sub. (6)(b) absent a prior award to "reopen." Kurt D. Koltz v. Kolbe & Kolbe Millwork Company, Inc., claim no. 88-027739 (LIRC, February 14, 1991). The commission's construction of sec. 102.44 (6)(b), Stats., on this point was upheld by the court of appeals in Louisiana-Pacific Corporation v. LIRC and Paula Strangret, court of appeals case no. 92-0478, district III unpublished decision (August 18, 1992) slip opinion at pages 3 and 4.

In this case, the applicant quit by taking a voluntary layoff in October 1992 when he could have insisted that someone be laid off in his place. At the time, the employer was providing work within his restrictions and apparently would have continued to do so. The applicant's decision to separate from his employment with the employer cannot be held to be due to his physical limitations or to any unreasonable inducement by the employer. The commission acknowledges that the applicant may have had other valid reasons for his separation. But the fact remains the resulting loss of wages are not compensable as loss of earning capacity.

In short, the applicant's award for permanent partial disability in this case is limited to the 5 percent assessment made by Dr. Durette. Section 102.44 (6) (a) and (h), Stats. No temporary disability has been established after October 4, 1992 given that the applicant reached an end of healing by that date. Thus, the commission awards no additional primary compensation for disability beyond that already conceded and paid by the respondent.

The next issue is medical treatment expense. On this point, the commission notes that the insurer's own chiropractic expert, Dr. Kopp, recommended chiropractic therapy in October 1992. Moreover, Dr. Durette specifically recommended continuing chiropractic care as recently as July 9, 1993. The commission therefore finds that the applicant incurred reasonable and necessary treatment expenses to cure and relieve the effect of his work injury from Chiropractic Health Services in the sum of $4,771.51, of which $2,966.51 has been paid by the insurer and $1,805.00 remains unpaid. The applicant also submitted documents establishing medical mileage of 1,396.80 for 24 trips of 58.2 miles. At a rate of 0.24 cents per mile, this works out to an award for medical mileage of $335.23.

The commission's order shall be left interlocutory to provide for the payment of additional medical treatment expenses incurred after the date of hearing, provided they are proven to be reasonable and necessary to cure and relieve the effect of the applicant's work injury. As to the nature and extent of disability from the February 28, 1992 work injury, however, this order is final.

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

INTERLOCUTORY ORDER

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 from the date of this order, the employer and the insurer shall pay all of the following:

1. To Chiropractic Health Services, the sum of One thousand eight hundred five dollars and no cents ($1,805.00) for medical treatment expenses.

2. To the applicant, Merrill Kummer, the sum of Three hundred thirty-five dollars and twenty-three cents ($335.23) for medical mileage.

Jurisdiction is retained for other findings, orders and awards that may be made consistently with this decision.

Dated and mailed June 30, 1995
ND § 8.8  § 5.23  § 5.6

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge did not find the applicant a credible witness and indicated he was being led by this attorney on direct examination. He also reiterated the inconsistencies noted in his decision.

The commission modified the administrative law judge's decision primarily because, as explained above, it believes the respondent failed to withdraw its admission of liability in a timely manner. The administrative law judge stated the applicant made no objection on this issue at the hearing, but otherwise he had no definite recollection of the issue being discussed at the hearing. Regardless of whether a formal objection was made at the hearing, however, the-date-of-hearing amendment to the respondent's answer was untimely under sec. Ind 80.08, Wis. Admin. Code.

In its petition, the applicant contends that the fifteen percent rule under sec. 102.44 (6), Stats., should not bar his claim for loss of earning capacity because no doctor had yet opined that the applicant had reached an end of healing when he accepted the voluntary "layoff." First, the commission is not certain sec. 102.44 (6), Stats., applies only to voluntary terminations occurring after a doctor first gives an opinion as to the end of healing, especially where an injured worker has returned to work following an injury or surgery. Further, as noted above, the commission concluded that the applicant had reached an end of healing by the time of the voluntary "layoff." Moreover, the applicant did not establish that his decision to take the "layoff" was because of his physical limitations from the work injury, or because he could not do the work provided within his doctor-imposed limitations.

The applicant also contends that since "the end of healing is not to be determined retrospectively," the commission must reject Dr. Gmeiner's opinion that the healing period ended in October 1992. The respondent cites Johnson v. Industrial Commission, 5 Wis. 2d 584 (1958), a case in which the supreme court reversed the industrial commission's finding that an injured worker suffering from traumatic neurosis reached an end of healing when the underlying physical injury healed. The Johnson court stated that until the traumatic neurosis was treated, it was impossible to tell whether it was a permanent or temporary condition. Id., at 592.

Perhaps more on point is the circuit court decision in Onalaska Mobile Home, Inc. V. DILHR and Lloyd Rhodes, La Crosse County Circuit Court case no 79-CV-426 (February 25, 1980). In that case, an applicant suffered a work injury to his right shoulder in 1976 when he fell from a ladder. The treating doctor testified that he set the healing plateau in 1978 when "he had nothing further to offer." However, the doctor admitted that he eventually realized the applicant's condition had not changed at all from the point of injury in 1976. The circuit court affirmed the commission's finding of a healing plateau in 1978, stating that the term "'healing period' is construed as the time prior to the perceived stabilization of the employee's condition, during which he is submitting to reasonable medical treatment. [Emphasis added.]" Id., slip opinion at page 7. It is evident from the decision that the court was concerned with situations where a doctor might treat a worker with the expectation that the worker would improve, but later come to the conclusion that the worker's condition would not improve.

In this case, of course, Dr. Durette prescribed a functional capacity evaluation to determine the applicant's permanent restrictions on August 5, 1992. He provided little treatment for the work injury thereafter. Treatment the applicant received from Dr. Durette in 1993 dealt mainly with neuropathy associated with diabetes. In fact, when he stated in July 1993 that the applicant was subject to only permanent restrictions, Dr. Durette imposed the very restrictions set in the August 1992 functional capacity evaluation.

The commission is not inclined to treat this as a case where Dr. Durette originally believed that further treatment would improve the applicant's condition and rendered such treatment, but later came to believe the applicant's condition had stabilized earlier. Stated another way, the commission is not convinced that Dr. Durette ever opined that the applicant was still healing from his work injury after August 1992. Consequently, fixing the end of healing in October 1992 is appropriate in this case.

cc: ATTORNEY JEFFREY J STRANDE
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY PETER L HESSERT
PATTERSON RICHARDS HESSERT WENDORFF & ELLISON

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