Wis.LIRC WC Decision: Woodruff, Kerry B. - August 12, 1991 - ND � 5.26 - Actual Wage Loss Concept - the two figures which are patently the proper figures to be used in figuring wage loss are amount of earnings at time of injury, and actual average weekly earnings applicant received at some point in time subsequent to returning to work after the injury which, when compared to this stipulated wage, would result in a wage loss of 15 percent or more

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

KERRY B. WOODRUFF, Applicant

MILCO, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 82-026490

The employer and insurer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings of Fact and Interlocutory Order, issued on June 19, 1990. The applicant submitted an Answer to the petition, briefs were submitted by both parties, and the employer and insurer submitted a reply brief. At issue are whether the applicant sustained an injury or injuries arising out of, and in the course of his employment with the employer, nature and extent of disability, including whether applicant is entitled to make a claim for, and, if so, has established loss of earning capacity, and liability for medical expenses.

The Commission has carefully reviewed the entire record in this matter, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings of Fact and Interlocutory Order. The Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first three pages, and the completion of the last paragraph to commence on page three at the top of page four, of the Administrative Law Judge's decision are affirmed and reiterated as if set forth herein.

On page four of the Administrative Law Judge's decision delete the ninth and tenth sentences of the paragraph commencing on that page.

On page five of the Administrative Law Judge's decision, delete the last sentence of the partial paragraph at the top of that page and substitute the following therefor:

"However, it appears that a portion of applicant's loss of earning capacity is based on limitations resulting from an injury or injuries to applicant's right knee which occurred in 1981, subsequent to the back injuries which are the subject of this application. Applicant had four separate operative procedures as a result of such right knee injuries, was still being treated for them as of his 1987 back surgery, and both Dr. Beuchel's Residual Functional Capacity Evaluation of November 15, 1989, and Dr. Hollingsworth's December 19, 1989, report take into account limitations resulting from the knee injury (including squatting, climbing and descending stairs) in assessing applicant's ability to work and in fixing loss of earning capacity. Applicant testified that his knee problems affected his ability to perform his maintenance job even before he had the 1987 back surgery. Given the fact, however, that the majority of applicant's limitations arise from his back problems, rather than his knee problems, a finding that applicant's permanent partial disability based on a loss of earning capacity as a result of his back injuries is 27.5 percent as compared to permanent and total disability is appropriate."

The first three sentences of the only full paragraph on page five of the Administrative Law Judge's decision are affirmed and reiterated as if set forth herein.

Delete the last three sentences in the only complete paragraph on page five of the Administrative Law Judge's decision and substitute the following sentences therefor:

"Therefore, in addition to temporary disability conceded and paid, as a further result of the applicant's injury of August 24, 1981, the applicant sustained permanent partial disability of 27.5 percent as compared to permanent and total disability, entitling him to 275 weeks of compensation, at a weekly rate of $70, totalling $19,250, all of which has accrued. The sum of $3,500 has been paid. A 20 percent attorney's fee is authorized on permanent partial disability awarded by this order, and totals $3,150."

The paragraph commencing at the bottom of page five of the Administrative Law Judge's order and continuing onto page six thereof, and the complete paragraph which immediately follows said paragraph, are affirmed and reiterated as if set forth herein.

Delete the Administrative Law Judge's INTERLOCUTORY ORDER and substitute therefor all except the first sentence of the Commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, the Labor and Industry Review Commission does issue this

INTERLOCUTORY ORDER

It is ORDERED that the Findings of Fact and Interlocutory Order of the Administrative Law Judge are affirmed in part and reversed in part, in accordance with the above findings. It is further ORDERED that within ten days from this date, the respondent-employer and its insurance carrier shall pay to the applicant, Kerry B. Woodruff, the sum of Twelve thousand six hundred dollars ($12,600); to the applicant's attorney, Richard Weber, the sum of Three thousand one hundred and fifty dollars ($3,150) as an attorney's fee; and to Wausau Insurance, the sum of One thousand six hundred sixty-five dollars ($1,665). Jurisdiction is reserved for such further findings, orders and awards as may be warranted and as are not inconsistent with this decision.

Dated and mailed August 12, 1991.
ND � 5.26

/s/ Kevin C. Potter, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

The employer and insurer contend that applicant did not suffer a compensable back injury on August 24, 1981, and/or it did not result in the applicant's 1987 back condition which necessitated surgery. However, the evidence of record supports the Administrative Law Judge's (ALJ's) determinations in these regards. The initial Application in this claim alleges a back injury of December 15, 1980, and the initial Answer thereto acknowledges that such accident actually occurred as alleged. Applicant's contention that he suffered an August 24, 1981, injury involving a slip is corroborated by the treatment dates of E. John Neumeyer, D.C. In addition, applicant testified that he reported the August 24, 1981, injury to the employer, that he got worker's compensation for all of his days off, and that all medicals through surgery were paid. The employer and insurer offer no testimony to refute the fact that the incident was reported to the employer. Under these circumstances, including the approximately seven years during which it was reasonable for applicant to assume that the employer and/or its insurer had either acknowledged the existence of the August 24, 1981, injury, or at least treated applicant's August 24, 1981, incident and ongoing back problems as a recurrence and continuation of the problems caused by the December 15, 1980, injury, there is adequate evidence in the record to support the ALJ's findings concerning the incident on August 24, 1981.

Respondents also rely on the reports of Gay R. Anderson, M.D., to challenge the finding that applicant's 1987 surgery was the result of the previous compensable back injuries. Dr. Anderson's opinions, given in 1988, are based largely, if not exclusively, on review of records of providers of treatment to applicant--primarily those of Dr. Beuchel who treated applicant since 1981 and did opine that such a causal relationship existed. In addition, Dr. Anderson's statements or comments concerning these treatment records are contradicted by not only the applicant's testimony but also the statements made in the records themselves. For example, whereupon Dr. Anderson states that soft disc protrusion at L5-S1 was not present a year after the injury, Dr. Beuchel's records clearly indicate that applicant's 1982 CT scan showed evidence of diffuse bulging of the annulus of both L4-5 and L5- S1 of the spine. Dr. Anderson also states that it is critical in his analysis that applicant really did not develop sciatica until 1986, five years after the incident in question. However, Dr. Beuchel's office notes clearly make reference to sciatica as early as 1982 and reflect that applicant was being treated in 1982 with nerve or epidural blocks and a TENS unit. For the above reasons, respondents' contentions are rejected and the ALJ's findings in this regard are affirmed.

Respondents further allege that applicant did not suffer "actual wage loss in comparison with earnings at the time of injury" in excess of 15 percent, as such is required under section 102.44(6)(a), Stats., before consideration of loss of earning capacity can take place. While respondents' brief and reply brief juxatapose an impressive number of combinations, none of which demonstrate a wage loss of 15 percent or more, they do not compare the two figures which are patently the proper figures to be used. One figure is the amount of earnings at the time of the injury--the ALJ finds this to be a "stipulated wage" of $486.94. Indeed, in its brief, respondents refer to this figure as the "stipulated wage." The other proper figure is the wage applicant received at some point in time subsequent to returning to work after the injury which, when compared to this stipulated wage, would result in a wage loss of 15 percent or more. After his back operation in July of 1987, applicant was allowed to return to work on October 5, 1987. According to respondent-employer's personnel administrator, applicant then made $9.25 per hour until April 1, 1988, well over 13 weeks, when his wage was raised. Applicant testified that he worked 40 hours a week. Forty times $9.25 equals $370 in actual average weekly earnings. Dividing this $370 figure by the previous "stipulated wage" at the time of injury, of $486.96, yields a percentage of approximately 76. Therefore, applicant is entitled to pursue a claim for loss of earning capacity under section 102.44 (6), Stats.

Much time is spent in respondents' brief and reply brief concerning the proper percentage of anatomical permanent partial disability to which applicant is entitled. Since the Commission has found that applicant is entitled to pursue a claim for loss of earning capacity as a result of his back limitations, it is that issue, not anatomical disability, which is decided in the body of the Commission's Order based on the reasoning given therein.

cc: Richard J. Weber, Attorney
Kelley, Weber, Pietz & Slater, S.C.

Thomas W. Bertz, Attorney
Anderson, Shannon, O'Brien, Rice and Bertz

199 - CD7880

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