Wis.LIRC WC Decision: Wittenberg, Teodora - May 31, 1991 - ND � 5.23 - 85 percent rule - In situations involving wage reduction due to termination or a quit, LIRC and WC Division exercise statutory discretion to reopen for assessment of loss of earning capacity if termination was without reasonable cause, or the quitting was due to physical or mental limitations, or to improper inducement to quit by the employer

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

TEODORA E. WITTENBERG, Applicant

BRIGGS & STRATTON CORPORATION, Employer

BRIGGS & STRATTON CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 87-008397

The employer submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued on November 27, 1989. The applicant submitted an answer to the petition. At issue are nature and extent of disability attributable to the conceded back injury of February 7, 1987.

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 reverses his Findings and Interlocutory Order and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is April 1, 1925, worked as an inspector and engine tester for the employer for approximately 25 years. She twisted her back while picking up a part on February 7, 1987, and was referred by the employer to Dr. Haskell. Dr. Haskell attempted conservative treatment but eventually performed a laminectomy and excision of herniated disc at L4-5. This surgery was performed on June 10, 1987.

Dr. Haskell's clinic note of June 23, 1987, indicates that on that date the applicant was experiencing dramatic improvement of her back and radicular leg pain, with improvement also noted in neurologic function. Dr. Haskell released her to work in early August 1987, with recommendations to avoid repetitive lifting, bending, twisting and turning, and no lifting over 35 pounds on a regular basis. A clinic note of August 20, 1987, recounted the fact that the applicant returned to work four days previously and developed a sensation of tightness in her back. Dr. Haskell saw "no evidence of any problem" and indicated she could continue to work. A clinic note of October 13, 1987, recounted the applicant's complaint that she did not feel the employer had a job available within her restrictions, and after assessing seven percent permanent partial disability, Dr. Haskell repeated the above-noted restrictions. On October 27, 1987, Dr. Haskell recounted the fact that the applicant indicated she planned to retire. He opined that with regard to her back she was getting along quite well and would be seen again only if she had further difficulty. She saw Dr. Haskell again in December 1987, May 1988, and March 1989, complaining of continuing low back pain and radicular pain into the right leg.

Dr. Kagen examined the applicant at the request of the insurer on January 5, 1989, and he assessed 15 percent permanent partial disability. He recommended back exercises and noted that the applicant had been unable to work due to her symptoms. He did not detail physical restrictions.

The applicant testified that when she returned to work in August 1987, it was in the employer's rehabilitation department. This was light work but the applicant testified she "felt bad." Nevertheless, she continued to work in the rehabilitation department until October 14, 1987, when she was transferred to the crankshaft line. This involved continual lifting of parts weighing three pounds, and repetitive bending and twisting. She was unable to tolerate this work and went to her union representative after only one day of it. She and the representative talked to the employer who laid her off, but within two or three days the employer recalled her to inspect engine covers on the third shift. She inspected the covers as they came off the line and then placed them in a basket on the floor. She could only tolerate this work for approximately two hours and testified that she rested the rest of the shift. She apparently did not say anything to anyone about her problems with this new job, but indicated that she decided to retire. She testified that she would not have retired except for the fact that she could not tolerate the pain. However, she could have filed a grievance if she believed the jobs offered by the employer exceeded her physical restrictions, but she did not. She used vacation time to take her to the effective retirement date of November 1, 1987.

Section 102.44 (6)(a), Stats., provides that the permanent disability award shall be based on physical limitations resulting from the injury without regard to loss of earning capacity, unless there is a post-injury wage loss of at least 15 percent. Section 102.44 (6)(b), Stats., provides that the Commission/Department may make an award for loss of earning capacity, if during the applicable statutory period, an employe who was rehired by the employer is terminated; or the employe quits due to physical or mental limitations; or a wage loss of 15 percent or more occurs. In this context, "wage loss" refers to a reduction in wage even though the employment continues. In situations involving a termination or a 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.

When the Commission consulted with the Administrative Law Judge he indicated that he concluded the applicant had made a reasonable effort to perform the lighter-duty positions offered to her subsequent to her back surgery, and for that reason he believed assessment of loss of earning capacity was appropriate. However, the Administrative Law Judge acknowledged the fact that the applicant received no medical recommendation to retire or quit her employment due to her physical restrictions. The applicant had been unable to cope physically with the job on the crankshaft line or with the duties of the engine cover inspection, but she did not reasonably exhaust her alternative employment opportunities with the employer. In fact, the evidence leads to the inference that she did not inform the employer that she could not physically tolerate her final work assignment, and there is no question that she ignored the option of filing a union grievance, which she could have done had the employer been uncooperative with regard to her physical restrictions. She chose to retire of her own accord. Although her negative experiences with the work assignments she had received subsequent to her back surgery may have influenced her decision to retire, this does not change the fact that she had no medical authorization to stop working due to the effects of the back injury, nor does it change the fact that she did not exhaust her reasonable employment opportunities with the employer. Therefore, the applicant is not entitled to an assessment of loss of earning capacity attributable to the work injury of February 7, 1987.

With regard to the issue of percentage of permanent disability attributable to the applicant's physical limitations, the Commission accepts the opinion of Dr. Kagen, based on the severity and chronicity of the applicant's symptoms. Neither Dr. Kagen nor Dr. Haskell indicated that additional medical treatment would be required.

The applicant is therefore entitled to permanent partial disability equivalent to 150 weeks of compensation at the applicable rate of $117.00 per week, for a total of $17,550.00. This compensation is all accrued. The employer previously conceded and paid $8,190.00 in permanent partial disability, leaving a balance of $9,360.00. A 20 percent attorney's fee will be subtracted from this balance in the amount of $1,872.00.

NOW, THEREFORE, this

ORDER

Within 30 days from this date, the employer shall pay to the applicant as additional compensation for permanent partial disability the sum of Seven thousand four hundred eighty-eight dollars ($7,488.00); and to applicant's attorney, Richard Oulahan, attorney fees in the amount of One thousand eight hundred seventy-two dollars ($1,872.00).

Dated and mailed May 31, 1991.
ND � 5.23

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc: Richard Oulahan, Director
Esperanza Unida Industrial Program

Richard J. Baggin, Manager
W. C. Department
Briggs & Stratton Corporation

185 : CD2013

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