WILLIAM P STUART, Applicant

DELPHI AUTOMOTIVE SYSTEMS CORP, Employer

DELPHI AUTOMOTIVE SYSTEMS CORP, Insurer

In May 2001, the applicant filed an application for hearing seeking compensation related to a February 4, 1999 back injury. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on January 22, 2002.

Prior to the hearing, the employer, who is self-insured, conceded jurisdictional facts, an average weekly wage at the maximum for the purposes of disability compensation, and that the applicant sustained a low back injury arising out of his employment on February 4, 1999. In addition, the employer conceded and paid compensation for temporary total disability from June 1, 1999 to November 30, 1999. The employer also conceded and paid permanent partial disability at ten percent.

In addition, the parties stipulated that the applicant was receiving social security disability benefits, but that there was no social security reverse offset under Wis. Stat. § 102.44(5). The parties also stipulated that the applicant has been receiving a disability pension of $1,064.94 per month from the employer since October 1, 2000; that any award for temporary total disability, permanent total disability, or permanent partial disability would be subject to a dollar-for-dollar offset due to the pension; and that any award less than 100 percent permanent total disability would be absorbed by the pension offset.

On February 14, 2002, the ALJ issued her decision finding the applicant eligible for permanent total disability benefits as of November 30, 2000. The employer filed a timely petition for review.

The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The applicant was born in 1941. He injured his back at work on February 4, 1999, and then underwent bilateral laminectomy and foraminotomy procedures on November 30, 1999. After the surgery, the applicant applied for, and now receives, an employer-provided disability pension and concurrently social security disability payments. (1)

The applicant's treating surgeon, Joseph Cusick, has set permanent work restrictions which permit occasional lifting up to 20 pounds and carrying up to ten pounds; only occasional bending, twisting and climbing; two hours consecutive, four hours total sitting; one hour consecutive, two hours total standing; and up to one hour total walking. The applicant, for his part, testified that he could comply with Dr. Cusick's restrictions generally, though he could not stand for an hour consecutively.

In his January 2001 report, the employer's independent medical examiner, Richard K. Karr, M.D., found an end of healing on November 30, 2000, with permanent partial disability on a functional basis at ten percent compared to permanent disability to the body as a whole. Dr. Karr also permitted full-time work with restrictions against lifting more than 25 pounds, against lifting and carrying more than ten pounds repetitively, and against repetitive or prolonged bending in excess of 35 degrees.

After the employer made payments in accordance with Dr. Karr's report, the applicant filed an application for hearing seeking, among other things, additional permanent disability compensation in March 2001. Thereafter, on May 23, 2001, the employer's health services supervisor, Christine Prosen, RN, sent the applicant a letter stating:

"I have received a letter from the National Benefit Center (2) that per Dr. R. Karr that you can return to work with restrictions. It is of our opinion you can be placed within these restrictions.

"I have scheduled you for a fitness for duty exam on 5-30-01 at 1:45 p.m. with our company medical director, Dr. Douglas Wendland. This exam will be in Health Services at Delphi Automotive Systems."

The applicant contacted the employer, and told the person with whom he spoke, evidently Ms. Prosen, that he was retired and collecting social security. The applicant and evidently Ms. Prosen, "just laughed about it" and Ms. Prosen did not instruct him to report anyway. Consequently, the applicant did not report for the physical.

The employer offers the vocational opinion of Donald M. Modder. He noted the applicant's age (then 60) which made him an "older worker," his 11th grade education, and his GED and occasional adult educational courses at technical college. Mr. Modder also noted that the applicant had certain transferable skills acquired on the job, including: good eye-hand-foot coordination; ability to read and follow directions; ability to maintain records and do basic computations; ability to sort and organize work, and perform routine and repetitive tasks; and ability to acquire new information on the job. Mr. Modder noted, too, that vocational retraining was not a viable option, and that the applicant's work history of 25 years with one employer would cause him difficulty in accessing alternative employment.

Considering the restrictions set by Dr. Karr, Mr. Modder opined that the applicant could work in a limited number of occupations in sedentary and light modified employment, including work as an assembler, a cashier-clerk, a production clerk, a quality control inspector, a security officer, and a ticket-taker. The applicant would be available for some of the listed occupations on a selective basis, meaning that he would have extremely limited access to only some jobs in that occupation. Adjusting for wage inflation, Mr. Modder calculated a residual earning capacity based on the ability to do these jobs at $10.02 per hour. Noting the applicant's pre-injury average hourly wage of $22.12, Mr. Modder estimated loss of earning capacity in the range of 60 to 65 percent.

Considering Dr. Cusick's restrictions, Mr. Modder opined the applicant would be relegated to sedentary and some very limited forms of light work. He opined the applicant would be permanently and totally disabled on an odd-lot basis under Dr. Cusick's restrictions.

The employer retained Jackie C. Roman as its vocational expert. She described the restrictions imposed by Dr. Cusick as similar to those of Dr. Karr. She noted, too, that the applicant voluntarily withdrew from the labor market, and was not pursuing alternative employment. She also concluded that the employer had offered the applicant work compatible with his restrictions, an apparent reference to the letter from Ms. Prosen instructing the applicant to report for a medical examination. On this basis, Ms. Roman opined the applicant had sustained no loss of earning capacity.

The primary issues at the hearing in this case were whether the applicant was entitled to additional temporary total disability, and the extent of his permanent disability - partial or total - on a vocational basis.

The ALJ denied the claim for additional temporary total disability, and adopted the healing plateau date of November 30, 2000 set by Dr. Karr. The commission notes that the applicant did not challenge this finding on review. Accordingly, the commission, too, concludes the applicant reached a healing plateau on November 30, 2000, and adopts the ALJ's findings on that point as if set forth herein.

The ALJ also found the restrictions set by treating doctor Cusick to be the most credible. Based on the opinion of applicant's vocational expert Modder, the ALJ found the applicant permanently and totally disabled.

The commission, however, finds the restrictions set by Dr. Karr to be more credible. While the applicant testified he has considerable residual pain, he obtains relief from medication. He participates in physical therapy five days a week. Further, the report of Dr. Karr, himself an orthopedic surgeon, reflects a thorough examination and careful consideration of the applicant's medical history. Finally, the commission notes Ms. Roman's observation that the restrictions set by Drs. Karr and Cusick are not greatly different from a vocational standpoint.

However, the commission cannot accept Ms. Roman's vocational opinion that the applicant has no vocational loss based on an offer of work from the employer. First, the offer came only after the applicant applied for and received a disability retirement from the employer, requiring him in turn to apply for social security disability benefits. Second, Ms. Prosen's letter of May 23, 2001, does not actually offer work, but instructs the applicant to report for a physical examination, after which Ms. Prosen and the employer believed they could offer work. Finally, and decisively, the applicant's testimony that he and Ms. Prosen laughed about the letter requiring a physical examination, and that Ms. Prosen did not thereafter indicate the request he undergo the examination was serious, militates against the conclusion that the applicant refused work from the employer within his restrictions.

Consequently, an award for a vocational loss is not barred by Wis. Stat. § 102.44(6). Rather, the commission, after considering the effects of the work injury and the various factors under Wis. Admin. Code § DWD 80.34, accepts the opinion of applicant's expert Modder that the applicant has sustained permanent partial disability on a vocational basis for loss of earning capacity at 60 percent. (3)

In sum, the commission concludes that the applicant has sustained permanent partial disability for loss of earning capacity at sixty percent. Given the stipulation of the parties concerning the effect of the applicant's disability pension, however, no award for permanent partial disability is due.

Pursuant to stipulation by the parties, the applicant is entitled to reimbursement for prescription expense in the amount of $168. The presiding ALJ concluded that the applicant is also entitled to reimbursement for the expenses related to his YMCA membership in the amount of $294. The ALJ further found that no testimony or other evidence was submitted to establish a relationship between the claimed mileage expenses and work injury, and that consequently, those expenses would not be paid. As these findings were not challenged on appeal, the commission adopts them as if set forth herein.

Finally, as the applicant may incur additional medical expense, or experience future temporary or permanent disability, this order shall be left interlocutory to permit awards for future disability or medical expense. In addition, jurisdiction is reserved to permit adjustments to the award in the event of changes to the applicant's disability pension.

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

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. No award for permanent partial disability is due.

Within 30 days, the self-insured employer shall pay the applicant Four hundred sixty-two dollars and no cents ($462.00) in out-of-pocket medical treatment expense.

Jurisdiction is reserved for further orders and awards as may be warranted consistent with this decision.

Dated and mailed September 10, 2002
stuartw . wrr : 101 : 8    ND § 5.23

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning the applicant's credibility. She saw no reason to doubt his testimony as to significant problems in his legs and knees. She also accepted his testimony that he would have continued to work until 2004 but for the injury. The commission accepts these credibility impressions.

Nonetheless, Dr. Karr noted the applicant's complaints of back pain, shooting pain in his legs, and numbness, and gave them fair consideration in his report. While he noted mild pain behavior in his examination, Dr. Karr did not indicate that he set less limiting work restrictions because he thought the applicant exaggerated his condition. Indeed, Dr. Karr took into account the applicant's generalized physical deconditioning when setting the work restrictions. In any event, the commission's decision to modify the ALJ's decision and reduce the award was not the result of a different impression of the applicant, the sole witness to testify before her. Rather, it was the result of a different impression of the relative credibility of the various medical and vocational experts, none of whom actually testified at the hearing.

On appeal, the employer primarily asserts that the applicant, by going on disability retirement and not providing the employer with his permanent restrictions, blocked its ability to provide work within his permanent restrictions. The employer further asserts that, once it learned of his permanent total disability claim, it did offer work within his restrictions, which he refused. In support of its argument that these facts should bar compensation for permanent disability, the employer cites Petterson v. LIRC, Case No. 87-1267 (Wis. Ct. App., February 4, 1988) and Neil Anderson v. General Motors Corporation, WC Claim No. 92068305, 1993 WI Wrk. Comp. LEXIS 523 (LIRC, November 29, 1993).

The commission, of course, does not award permanent total disability but rather finds the applicant has sustained only a 60 percent loss of earning capacity, which results in no actual award given the parties' stipulation regarding the applicant's disability pension. However, to the extent the employer's arguments may apply to the lower loss of earning capacity award, the commission must reject them. Specifically, the commission concludes that neither the May 23, 2001 letter from Ms. Prosen, nor the fact of the applicant's decision to stop working and accept a disability pension, results in a total bar on compensation for loss of earning capacity (whether total or partial) under Wis. Stat. § 102.44(6).

In Petterson, the injured worker returned to the-time-of-injury employer following her recovery from the injury, but then quit her job to join her husband in Florida. Because the worker's decision to quit was not related to physical or mental restrictions from the work injury, the commission held that Wis. Stat. § 102.44(6)(b) did not apply to allow a reopening of her claim to pay loss of earning compensation. In this case, however, the applicant's work injury directly resulted in the disability that qualified him for disability retirement.

In Neil Anderson v. General Motors Corporation, the commission stated:

"The commission agrees with the administrative law judge that if the applicant had not decided to accept early retirement he could have returned to work for the employer with little or no wage loss. The employer had been able to accommodate the applicant's physical restrictions in the past. Given the fact that the applicant voluntarily removed himself from the labor market when he retired prior to the time that he had been released to return to work or had permanent restrictions assessed, and given the fact that the employer would have had work available for him within his restrictions if he had not retired, the administrative law judge appropriately found that the applicant was not entitled to a loss of earning capacity claim."

In the current case, however, the applicant did not obtain a normal retirement, or even an "early retirement" as that term is normally used, but a disability pension. The applicant's disability pension not only required approval from the employer at least at some level, but also required applying for social security. Moreover, the applicant followed through with the employer's demand that he report for a physical by calling Ms. Prosen, and his testimony indicates that as a result of that conversation, a reasonable person would have concluded that the employer was not serious about the demand he report for a physical. Under these circumstances, the commission cannot conclude that the applicant's choice to accept the disability pension amounted to refusing an offer of work requiring the absolute denial of compensation for loss of earning capacity under Wis. Stat. § 102.44(6)(a) and (g).

cc: 
Attorney Thomas M. Domer
Attorney Paul R. Riegel

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(1)( Back ) The employer's disability retirement plan requires a concurrent application for social security.

(2)( Back ) This entity is involved in the applicant's disability retirement claim.

(3)( Back ) Mr. Modder, the applicant's vocational expert, does not opine that the applicant is permanently and totally disabled on an odd-lot basis under Dr. Karr's restrictions. Under these circumstances, the commission is left with considerable doubt as to whether the applicant is unable to secure continuing and gainful employment because his injury limits him to performing services so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. In other words, the applicant has not made a prima facie case of odd-lot unemployabilty under the work restrictions of Dr. Karr, which the commission adopts as most credible. See, Balczewski v. DILHR, 76 Wis. 2d 487, 493-95 (1977). 

uploaded 2002/09/20