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

KURT D. KOLTZ, Applicant

KOLBE & KOLBE MILLWORK CO., INC., Employer

LUMBERMEN'S UNDERWRITING ALLIANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88-027739

The applicant submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on August 13, 1990. At issue is nature and extent of disability and liability for certain medical expenses. The Commission has carefully reviewed the entire record in this matter and hereby makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Applicant, age 26 at the time of the hearing in this matter, worked for respondent, a manufacturer of wood-framed windows and doors, in 1988. Applicant claims an injury of May 4, 1988, on which date he was engaged with a co-worker in assembling window units. He initially sought treatment at a hospital emergency room on May 5, 1988. Thereafter, he treated with his family physician Dr. Smith. He also initiated treatment with a chiropractor, Dr. Poland, and with another physician, Dr. Foltz. Applicant has also consulted with and been treated by Dr. Szmanda, D.O. in 1990. Independent medical examinations were carried out at the instance of the insurer, by Dr. Hiner in 1988, and by Dr. Idarraga in 1989.

Dr. Idarraga has opined that applicant suffers from a two and a half percent permanent partial disability to his back, but he does not, apparently, believe that this disability was caused by the work incident. Dr. Smith accepts the figure of two and a half percent permanent partial disability as accurate and opines that this disability was directly caused by the work incident. Dr. Szmanda opines that applicant suffers from three percent permanent partial disability, and he believes that this disability is the result of some preexisting degenerative or progressively deteriorating condition having been precipitated, aggravated and accelerated beyond its normal progression by the work incident. Dr. Poland opined that there was ten percent permanent partial disability, but his opinions are considered to leave unresolved a question of whether the disability was caused by a work incident. Dr. Foltz opined that applicant could return to work on September 9, 1988, with no restrictions. In an opinion issued on September 20, 1988, Dr. Hiner indicated that he believed that applicant would suffer from no permanent partial disability.

After careful consideration of all this evidence, the Commission concludes that applicant suffers from no more than two and a half percent permanent partial disability as a result of the work incident on May 4, 1988. The opinion of Dr. Szmanda is rejected. In arriving at this conclusion, the Commission has particularly considered a number of factors. One is the fact that the applicant has given inconsistent histories of the work incident in question, indicating that in earlier histories he did not feel pain until approximately half an hour after the incident, while indicating in histories given later (including his history given to Dr. Szmanda) that he felt pain immediately at the time of the incident. Although Dr. Idarraga was given a history indicating that applicant felt pain at the time of the incident, he also had been provided with the notes of Dr. Poland who had been given a history of a delay in onset of pain, and Idarraga therefore was able to take this into consideration. The Commission has also particularly considered the fact that Dr. Szmanda's diagnosis of "Arthropathy at multiple levels and spondylolisis (sic) at L5," based on a CT scan by Dr. Brister of March 27, 1990, appears unsupported by Dr. Brister's CT scan, by earlier CT scans, and by all other medical opinions. Dr. Szmanda's view, that there was some preexisting, degenerative or progressively deteriorating condition which was precipitated, aggravated and accelerated beyond its normal progression by the work incident of May 1988, is found by the Commission not to be supported by the medical evidence.

Since two and a half percent permanent partial disability has already been conceded and paid, no further payment for permanent partial disability is required based on physical disability alone.

The opinion of Dr. Foltz, that applicant's healing period ended on September 9, 1988, was concurred in by Dr. Idarraga, and is accepted as convincing. Accordingly, applicant's claims for temporary total disability between July 1, 1988 and July 17, 1988, and between July 21, 1988 and July 31, 1988, are valid. These periods total three and a half weeks, which at a rate of $153.33 a week, entitles applicant to $536.66 in temporary total disability benefits.

It is considered that applicant failed to establish a prima facie case under section 102.42 (1), Stats., to entitlement for compensation for medical treatment as to which a dispute existed as to whether it was reasonably required to cure and relieve from the effects of the May 4, 1988 injury. Consequently, there can be no award entered under that section.

Applicant seeks additional permanent partial disability based on a claim of lost earning capacity. The following factual circumstances are relevant to this claim.

Applicant returned to employment with respondent in June 1988 on a lightduty assignment in which he counted and packaged screws. He continued in that position (with some further time off work in July 1988) until he was given other duties later in the year, stocking wood bins and operating a tow motor. He continued working on the tow motor and was then assigned work in the paint shop in January 1989.

The work which applicant was provided and which he did subsequent to May 4, 1988, was within his restrictions as identified by Dr. Smith, which were no lifting over 25 pounds, no excessive bending, and periodic sitting to rest his back. Applicant worked the same number of hours per day and days per week, as he had prior to May 4, 1988, and he earned the same wage.

Applicant's last day of work was January 23, 1989. He was discharged at the end of January 1989 when he did not appear at work or contact the employer for three consecutive work days. After his last day of work on Monday, January 23, 1989, applicant did not appear at work on Tuesday, January 24. He notified the employer that he would be absent on that date, due to back pain, and he was advised that he should bring a physician's excuse when he returned to work. Nevertheless, he did not see his physician on that day. Applicant saw Dr. Smith on Wednesday, January 25, 1989. At that time, Dr. Smith gave him a handwritten note, dated January 25, 1989, which stated:

"Off work today, seated work Thursday and Friday. Return to work on Monday, January 30, with light-duty per prior restrictions."

Applicant went in to get his paycheck on Friday, January 27, 1989, but at that time, he did not present this note. He did not go in to work on Monday, January 30, 1989. When he appeared at work on January 31, he presented the note from Dr. Smith but was informed that he had been replaced.

Applicant had been informed on August 12, 1988, that he was expected to report to work every day he was scheduled unless excused by a physician. He had also been suspended from August 26 through August 31, 1988, when he failed to report to work on August 24, 1988, due to car problems, and he was told that his next absence would result in his discharge.

Applicant filed a claim for unemployment compensation benefits for weeks following his termination in Janaury 1989. An Initial Determination was issued by the Department of Industry, Labor and Human Relations that the employe terminated his work with the employing unit, not within any exception to the Unemployment Compensation Act which would permit benefit payment. The applicant filed a request for hearing, and a hearing was held on that issue before an Appeal Tribunal of the Unemployment Compensation Division, at which the applicant had the oppportunity to present evidence. On June 7, 1989, the Appeal Tribunal issued a decision. The decision made findings of fact concerning the circumstances of the employe's termination, and concluded as a matter of law that the employe's failure to notify the employer of his absences and to provide a proper medical excuse, demonstrated a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect of him, so as to amount to misconduct within the meaning of the Unemployment Compensation Act. The applicant filed a petition with the Labor and Industry Review Commission for review of this decision, and on July 27, 1989, the Commission affirmed the decision of the Appeal Tribunal. That decision of the Commission was not appealed and became final.

Section 102.44 (6), Stats., provides that where an injured employe claiming compensation for permanent partial disability has returned to work for the employer for whom he 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 earning capacity, unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15 percent. The employe in this case returned to work for the employer for whom he worked at the time of the injury, and continued to work for that employer for the same number of hours per week and at the same wage rate as prior to the injury. Thus, he did not have an actual wage loss in comparison with earnings at the time of the injury which equalled or exceeded 15 percent, and pursuant to section 102.44 (6)(a), the permanent disability award should therefore be based upon the physical limitations resulting from the injury without regard to loss of earning capacity.

It is true that section 102.44 (6)(b), Stats., sets forth what may be considered an exception to the rule just noted. It provides:

"If, during the period set forth in 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 him or her from continuing in such employment, or if during such 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."

The language of this subsection, relating to the "reopening" of awards and the making of "redeterminations," obviously anticipates situations in which an order establishing entitlement to permanent disability based solely upon physical limitations resulting from the injury has already been made and is then followed by one of the circumstances described. The Commission considers, however, that the section also is potentially applicable in the case of an employe who has returned to work for the employer for whom he or she worked at the time of the injury, with no actual wage loss or an actual wage loss of less than 15 percent, and who then becomes subject to one of the conditions noted in subsection (b), prior to the time that any order establishing an award of permanent partial disability is entered. The same considerations should apply in both cases; that is, if there has been a return to employment with no wage loss or a wage loss of less than 15 percent and subsequently one of the conditions described in subsection (b) occurs, the Department is provided the discretion under subsection (b) to make a determination taking into account loss of earning capacity.

The Commission considers that, in this case, the first condition anticipated under subsection (b) has occurred. Specifically, the employment relationship was terminated by the employer at the time of the injury. In this regard, the Commission expressly disagrees with the construction adopted by the Administrative Law Judge, that the phrase, "at the time of the injury" modifies "terminated" in this section. If this section only related to terminations occurring at the very point of the injury, the initial language of subsection (b) defining its applicability as being "during the period set forth in section 102.17 (4)" would be rendered nonsensical. The Commission considers it apparent, that the phrase "at the time of the injury" modifies the employer. In other words, it relates to the situation in which the employment relationship is terminated by the same employer for whom the employe was working when injured, but not situations in which a subsequent employment relationship entered into after the work injury is then terminated by that employer. In this case, "the employer at the time of the injury" was Kolbe & Kolbe Millwork, Inc. The employment relationship was terminated by that employer, after the employe had returned to work with no actual wage loss. Therefore, under section 102.44 (6)(b), "The department may reopen any award and make a redetermination taking into account loss of earning capacity."

As evidenced by the use of the word "may," however, this is a discretionary authority. It is apparent from section 102.44 (6)(g), Stats., which provides that an employe will be considered to have returned to work with the earnings offered him if the employe turns down a good-faith offer of reemployment without reasonable cause, that the legislature considered the reasonableness of an employe's actions which affect that employe's opportunities for reemployment to have a bearing on the employe's entitlement to a rating of permanent partial disability for loss of earning capacity. In view of what it sees as the policy underlying section 102.44 (6)(g), Stats., the Commission concludes that when an employe is returned to employment without a wage loss and is subsequently terminated for good cause by the employer at the time of the injury, it can be appropriate for the Commission to decline to exercise the discretionary authority provided by section 102.44 (6)(b) to make a determination taking into account loss of earning capacity.

In this case, the Commission is satisfied that the employe was terminated on January 23, 1989 for good cause. The applicant is precluded by the finality of the Unemployment Compensation Appeal Tribunal decision from disputing any of the material findings of fact made after hearing in that proceeding. In that proceeding, the burden of proof was on the employer to demonstrate the facts necessary to establish the legal consequence of a finding of misconduct, and the decision in the employer's favor represented a decision that the employer carried its burden of proof. The material findings of fact made in that proceeding support the conclusion arrived at by the Commission herein. Alternatively, and apart from the preclusive effect of that prior decision, the evidence introduced into the record at the hearing held on the application for Worker's Compensation benefits is also considered adequate to support the conclusion, that the employe was discharged justifiably. He knew he was expected to work unless excused by a physician; he knew that further unexcused absence would result in discharge; he had been provided a note from his physician which legibly and unambiguously indicated that he could engage in seated work on January 26 and 27 and that he could return to work on Monday, January 30 with only his prior restrictions in force; and despite this he failed to report to work and failed to further notify the employer of his absence. In these circumstances, the Commission is not inclined to exercise its discretion under section 102.4 (6)(b), Stats., to make a determination relating to loss of earning capacity.

Pursuant to requests made under section 102.26, Stats., applicant's attorney is to receive direct payment of attorney's fees in the amount of 20 percent of the award herein. The attorney is entitled to receive $107.33 as fees (20 percent times $536.66). Costs of $182.25 shall also be reimbursed, making a total of $289.58.

NOW, THEREFORE, this

0RDER

Within thirty days from the date of this order, respondent and its insurance carrier shall pay to applicant, the sum of Two hundred forty-seven dollars and eight cents ($247.08) as compensation, and to Attorney Patrick L. Crooks, the sum of Two hundred eighty-nine dollars and fifty-eight cents ($289.58), as fees and costs.

Dated and mailed February 14, 1991.
ND § 5.23

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In the petition for Commission review, applicant asserts that the document offered and received into evidence at hearing as respondent's policy concerning employes who failed to call in or show up to work for three consecutive days (respondent's Exhibit 12) was not the actual policy in force at the time. Applicant has appended to the petition for review, and asks the Commission to consider, a different document, not part of the record, which contains other aspects of respondent's attendance policy but does not reference failures to call in or report to work for three days. The Commission declines to consider this document. No basis for consideration of the document has been established. No explanation has been offered as to why this document could not, with reasonable diligence, have been earlier disclosed and offered at hearing. The claim that the applicant did not have an opportunity to respond at hearing when respondent offered the exhibit received as respondent's Exhibit 12 is unsupported, since applicant was present at the hearing before the Worker's Compensation Administrative Law Judge, was represented by an attorney, and had every opportunity to so respond. Even if the Commission had any inclination to consider newly offered evidence at this point, it would not do so here, since the claim that respondent's Exhibit 12 is "false" was made only by applicant's attorney, and no affidavit of any person asserting personal knowledge as to the provenance of the document has been provided. As noted above, the previous and now final finding of the Department in the unemployment compensation matter effectively precludes applicant from arguing that his employment was not terminated by virtue of the application of a policy ending employment for failure to appear or call in for three days, and apart from this the testimony of respondent's witness at hearing in the worker's compensation matter to the same effect was considered credible and convincing by the Commission.

The petition for review also contains a recent statement from Dr. Smith, not contained in the record, purporting to establish that his "return to work" note of January 25, 1989 was "hard to read," "confusing," and was "misunderstood" by the applicant. This is evidently offered in connection with applicant's argument, that the actions which led to his termination were not wrongful on his part because due to factors beyond his control he did not understand that he was expected to return to work and to notify the employer. Applicant also argues here that his alleged dyslexia is relevant in this regard. The Commission finds these arguments unpersuasive. With respect to the statement from Dr. Smith, the judgment that his note of January 25, 1989 was "hard to read" or "confusing" is one that the doctor is no better prepared to make than anyone else. As noted above, the Commission found the document legible and unambiguous. The doctor's assertion that applicant "misunderstood" the note is one that he has no appparent foundation to make. The recent statement of Dr. Smith is also, of course, a hearsay document, not properly certified or verified so as to entitle it to admission as a medical report even if it had a medical content and again, as with the copy of the document advanced as an alternative to respondent's Exhibit 12, no claim is advanced as to why this piece of evidence could not have been offered before. With respect to the assertion of applicant's dyslexia, the Commission has carefully combed the record and found therein no competent medical opinion establishing that applicant suffered from dyslexia, much less a competent medical opinion that he was suffering from dyslexia in January 1989 to such an extent that he would have been unable to understand the return to work note which Dr. Smith provided him.

Applicant complains that the Administrative Law Judge evidenced prejudice against the opinion of Dr. Szmanda by persistently referring to him as an "osteopath." The Commission finds no prejudice evident in this. The record establishes that Dr. Szmanda is a doctor of osteopathy, and to describe him as an "osteopath" is accurate and non-pejorative.

Applicant alleges, without citation to any particular ruling or aspect of the decision, that the Administrative Law Judge was "prejudiced" against the applicant. The only specifics offered in support of this allegation were the complaints that the Administrative Law Judge repeatedly criticized the applicant for speaking too rapidly, that the "applicant's disability of dyslexia" was totally ignored, and that the Administrative Law Judge concluded that the applicant had made false assertions with respect to the history of the onset of pain following his work injury. The Commission is not persuaded that the Administrative Law Judge was biased in any respect. Reminding a witness to avoid speaking too rapidly is appropriate conduct on the part of a hearing officer charged with responsibility for creation of a record. The fact that the alleged handicap of dyslexia was not dealt with by the Administrative Law Judge as a material factor is appropriate, considering the absence in the record of any competent medical evidence that applicant suffered from dyslexia at any time material to the issues in the proceeding. Finally, the Administrative Law Judge's conclusion that the applicant made false assertions with respect to the history of his condition was justified by the contradictory statements he made to various practitioners regarding the onset of pain following the work injury.

The Commission does not agree with the argument of the applicant, that it was "undisputed" that he could not do the work he was assigned to do after his return to employment with the employer and that he would have been terminated or would have quit eventually because of inability to do the job. On the contrary, the evidence is that the work which applicant was doing was within his restrictions.

The Commission has considered the other arguments advanced by applicant in the petition for review but has found them similarly unconvincing.

NOTE: The Commission had no disagreement with the material findings of fact made by the Administrative Law Judge, and has issued its own decision in this matter principally in order to set forth more fully the basis upon which the Commission arrived at the same determination as the Administrative Law Judge. Additionally, the Commission wished to set forth its different view, on the issue of how the phrase "terminated by the employer at the time of the injury" in section 102.44 (6)(b), Stats., should be interpreted.

cc: Attorney P. L. Crooks
Crooks, Low and Connell
P. 0. Box 1184

Attorney James A. Meier
Meier, Wickhem, Southworth & Lyons

110 - CD7778

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