CHARLES ISTVANEK, Applicant
COUNTY OF KENOSHA, Employer
COUNTY OF KENOSHA, Insurer
In April 2002, the applicant (1) filed an application for hearing relating to a lower back injury sustained on June 18, 2000. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 8, 2003.
Prior to the hearing, the self-insured employer, Kenosha County, conceded
jurisdictional facts, that the applicant sustained a compensable back injury on
June 19, 2000, and average weekly wage on that date of $717.20. Kenosha
County paid past medical expenses, and disability compensation in the forms of
salary and temporary disability to August 10, 2001, neither of which are at issue
here. Further, Kenosha County paid permanent partial disability compensation in
the sum of $12,880, accruing after August 10, 2001.
At issue was the nature and extent of disability beyond that conceded. The applicant seeks compensation for permanent total disability as of August 10, 2001. Kenosha County contends its liability for permanent disability is limited to the compensation for permanent partial disability it has already paid.
The ALJ issued his decision in favor of Kenosha County on July 10, 2003. The applicant filed a timely petition for review.
The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in 1934. He left high school in 11th grade, and began working for American Motors in about 1955. In about 1957, he was drafted into the U.S. military. He obtained a GED while in service, and in fact took some college courses. He was honorably discharged in about 1959, and returned to American Motors.
The applicant continued as a factory worker with American Motors until 1989, when he left that job because of what seems to be a dermatitis or skin condition. Transcript, page 52-53. The applicant characterized his separation from American Motors as a retirement, however, transcript, page 43 and 52, and began drawing a pension. Transcript, page 53.
After leaving American Motors, the applicant testified, "things weren't working out at home" and he "didn't have enough money to do anything." Transcript, page 43. He then obtained a job doing maintenance work for the parks department of the current employer, Kenosha County. The applicant worked part-time with Kenosha County for a year or two until going full time in about 1991 or 1992.
Kenosha County's vocational expert describes the job, while full time, as "seasonal." See exhibit 4, page 6, second paragraph under the "Occupational Background" heading. However, this appears to be inaccurate. The applicant earned $38,125 in the calendar year before his injury, or about his average weekly wage conceded by Kenosha County for a fifty-two week year. The applicant's duties include not just lawn cutting but machine maintenance; things that can be done year round. There is no testimony describing the applicant's job as seasonal, and during the credibility conference, the ALJ told the commission he understood the job to be year round.
In 1997, the applicant hurt his back off duty, and underwent surgery. However, he was able to return to his normal full time duties with Kenosha County.
On June 19, 2000, the applicant again injured his back, in the course of his employment with Kenosha County, while working on a lawn mower. The applicant testified he was readjusting a big 12-foot cutting mower, and was working on the adjusting bolt when he "popped his back." He reported the injury, but continued to work while he treated.
The applicant saw J. Foster, M.D., who reported the applicant developed right hip and low back pain while trying to break bolts loose on a lawnmower. (Exhibit H.) The doctor noted pain in the right hip down the back of the calf into the foot. Dr. Foster diagnosed a back strain initially. When the applicant was still fairly uncomfortable a week later Dr. Foster ordered an MRI, which the interpreting radiologist stated an impression of a prominent disc bulge at L4-5. Dr. Foster then diagnosed "probable radiculopathy," and referred the applicant to a spine clinic.
At the spine clinic, the applicant saw James P. Hollowell, M.D., on July 27, 2000. Dr. Hollowell's report for that date noted that the MRI showed a prominent soft tissue lesion at 4-5, and that lesion was relatively large and would be expected to cause nerve root impingement. As a treatment option, Dr. Hollowell recommended surgery.
On September 5, 2000, the applicant underwent a right L4-5 discectomy and foraminotomy performed by Dr. Hollowell. Thereafter, the applicant saw David deDianous, M.D., on March 13, 2001, for follow up of his back and leg pain. Dr. deDianous' plan was to have the applicant progress with his stabilization plan. The applicant returned to Dr. deDianous on April 20, 2001, who permitted a return to work on April 25, 2001, subject to the following permanent restrictions:
Dr. deDianous added this narrative:
No repetitive activity. No standing or sitting ? 30 min at one time. Should be able to go from sit ? stand at will.
Exhibit D.
The applicant returned to Dr. deDianous on August 6, 2001, when the doctor noted some increasing symptoms with high humidity, but pronounced him "stable in regards to symptoms of his back and leg pain." Exhibit E.
Dr. deDianous prepared a medical report on August 10, 2001 (exhibit C), stating that the applicant's healing period ended and that he was discharged from care. Dr. deDianous' August 2001 medical report again stated the applicant had been able to return to work on April 25, 2001, four hours per day, and reiterated the restrictions he had set on April 20, 2001. In response to the question when the applicant could return to full time, the doctor answered "see above."
Dr. deDianous later prepared a practitioner's report on March 26, 2003 (exhibit A.) The practitioner's report rates permanent partial disability at 7 percent to the body as a whole for continued back pain and weakness, directly caused by the work injury on June 19, 2000. The practitioner's report also refers back to the August 2001 medical report regarding the applicant's permanent restrictions.
The applicant testified he brought a copy of his work restrictions into Kenosha County intending to return to work, but was told Kenosha County had no work for him within his restrictions. Transcript, page 19, 51-52. The applicant's testimony on this point is corroborated by Kenosha County's own respondent's exhibit 5, a letter dated August 22, 2001, from its personnel analyst, Robert Riedl.
Mr. Riedl's letter begins by listing the restrictions set by Dr. deDianous in his final report, which Mr. Riedl specifically stated included a limitation to a four-hour work day. The letter goes on to state:
"Regretfully Kenosha County does not have any employment positions which will allow us to rehire you under the restrictions set by Dr. deDianous. Therefore effective August 10, 2001, Kenosha County will discontinue your temporary total disability payments. You are entitled to permanent partial disability compensation from Kenosha County which will be forwarded to you....
"I know everyone associated with Kenosha County Parks Department has enjoyed working with you and appreciates your contributions to its success. Please accept our best wishes for the future."
Mr. Riedl sent the applicant a follow-up letter dated August 31, 2001, referring back to the August 22 letter, and informing the applicant
"you have been been laid-off unable to perform the essential functions of your job...
"..if any time in the future your physical restrictions change so as to make you eligible for a position with the Division of Parks and Recreation, please contact me and we will return you to a list of eligible candidates for available jobs. Upon your request and for the next 12 months, Kenosha County Division of Personnel Services will send you notification of job opportunities within the county..."
Exhibit I-1.
Finally, on November 15, 2001, Mr. Riedl sent a letter to the applicant's attorney reiterating that Kenosha County had laid off the applicant because he could not do his old job or any other available job. Mr. Riedl did acknowledge that the applicant "personally expressed interest in returning to work."
According to the applicant, since August 22, 2001, Kenosha County has not contacted him about a job, nor have they provided him with any job openings. Transcript, pages 21, 36.
The applicant then "retired" from Kenosha County as of April 9, 2002. See exhibit 6. He testified he had to sign the paper saying he retired so he could get his benefits. Transcript, pages 35, 53. He testified he needed his retirement benefits from Kenosha County because he was having difficulty making ends meet. Transcript, pages 35, 54.
Under examination by the ALJ, the applicant credibly testified that, if he had his way, he would be working at his maintenance job with Kenosha County rather than being retired. Transcript, page 55. He admitted, however, that since his injury he had not looked for other work, other than with Kenosha County. Transcript, page 53.
Kenosha County has conceded an injury, and has not submitted any expert medical opinion. Thus, Dr. deDianous's opinion that the work injury caused the applicant's disability and his permanent work restrictions set as a result of that injury are unchallenged. The issue before the ALJ was the vocational effect of the restrictions set by Dr. deDianous.
The applicant's vocational expert is Jackie C. Roman. Her report is at exhibit B. Ms. Roman states that Dr. deDianous's practitioner's report on form WKC-16-B "repeated restrictions relative to part-time work at the sedentary or light physical demand level with frequent position changes." Exhibit B, page 2. She noted the applicant's high school level education; his past experience as an automobile production worker (which was light to medium work); his employment as a parks maintenance worker (which was medium to heavy); and his transferable skills including coordination, manual dexterity, work with power tools, ability to measure, estimate and apply basic math skills. Based on the applicant's work restrictions in combination with his "advanced age," high school level education, and past work experience, she felt he was permanently and totally disabled and that any remaining employment would be of an "odd lot" nature.
The report of Kenosha County's vocational expert, Lisa Alberte, is at exhibit 4. She noted that while the applicant was eligible for full social security at age 65, he was motivated to continue working based on his employment with Kenosha County.
However, Ms. Alberte noted, too, that the applicant had a significant medical history including two low back surgeries (the surgery following the off duty injury in 1997 and the work injury in 2000), and coronary bypass surgery. She then stated:
"These medical conditions along with an aging body can contribute to on-going symptoms and inability to perform any and all tasks at the level he could at a younger age and prior to commencement of any of these conditions. His permanent restrictions to sedentary to light duty seem appropriate given his advanced age and multiple medical conditions for pursuing employment options."
Exhibit 4, page 8.
Ms. Alberte noted, too, the applicant's transferable skills and vocational strength to learn job skills quickly with on the job training. She noted the transferable skill of riding a self-propelled lawn mower for lawn or golf course maintenance activities. She felt he could still do light maintenance in a hospital or commercial setting; do light landscaping or gardening activities such as pruning trees and planting flowers; work supervising others in repair of equipment; do work painting; do welding if allowed to change position; and work with hand tools and finishing tools in light assembly and shop work. Ms. Alberte continued:
"[The applicant] has sustained a condition, which may not reasonably expect to influence his vocational future. His advanced age and multiple medical conditions and multiple retirement funds may have contributed to his choice not to pursue further gainful employment when his current employer did not have any options available with his permanent restrictions."
Exhibit 4, page 9.
Noting the applicant's "multiple payment sources" including the social security, two pensions, permanent partial disability compensation, and eventually military benefits, she observed:
"It raises question to financial gain from yet another compensation source of legal pushing for a permanent total disability for this case [sic]. Because of his advanced retirement age, Mr. Istavanek is already set financially with multiple financial income sources and does not need to pursue gainful employment. It is questionable how he can allege he is permanently and totally disabled from the labor market."
Exhibit 4, page 9.
Ms. Alberte also noted that no physician has totally restricted the applicant from all work because of his medical condition. She reported that Dr. deDianous released the applicant to full time sedentary or light work by August 10, 2001, and that "many occupations and job openings exist within such restrictions," though she identified none explicitly. Exhibit 4, page 9 (last paragraph.)
Ms. Alberte went on to observe that instead of looking for work, the applicant consulted with an attorney. She concluded:
"...Mr. Istavanek has not sustained a loss of earning capacity. Several issues remain questionable in this case. He has a pre-existing lumbar condition and surgery that was aggravated by his work related injury of June 19, 2000. However, no physician has yet addressed whether his second surgery was related to a permanent aggravation of his pre-existing injury prior to the June 19, 2000 incident. Following the June 19, 2000 incident, Mr. Istavanek lost no time and returned to modified duty and eventual full time duty before his second lumbar surgery.
"There is obviously the issue of which injury produced the claimant's physical restrictions and limitations. This appears more of a medical and legal matter, so will be deferred to professionals in these areas."
Exhibit 4, page 10.
The ALJ, as noted above, dismissed the application. He concluded that the applicant was not permanently and totally disabled, and in fact had no loss of earning capacity whatsoever. His decision noted the applicant's pre-existing back problems and heart condition, and concluded:
"Although the applicant clearly has permanent restrictions which prevent him from further employment in his labor market, I find his testimony unconvincing that he would have continued his employment for a substantial period of time to the point where he should be entitled to permanent total disability benefits for life. Coupled with his advanced age and significant benefits received from his full-time employment with American Motors Corporation and substantial retirement benefits and pension benefits from the employer's job, I find that he has not met his burden of proof that he is currently seeking full time employment and would have continued in such an endeavor.
"Accordingly, I find the applicant has not sustained a loss of earning capacity due to the June 19, 2000 work injury."
2. Discussion
a. Background; the positions of the parties.
Under the "odd-lot" rule, where a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id.
The court of appeals recently addressed the issue of permanent total disability on an odd-lot basis in Beecher v. LIRC, 2003 WI App 100, 264 Wis. 2d 394, 663 N.W.2d 316. (2) In that case, the commission concluded the worker had not made his prima facie case because it did not credit his vocational expert's opinion and because it found the worker did not make a sufficient effort to find work. The court of appeals reversed, holding the commission erred by requiring Mr. Beecher to show he made reasonable efforts to secure employment as part of his prima facie case, id., 264 Wis. 2d 394, 26.
In its appeal to the commission in this case, the applicant raises the court of appeals' decision in Beecher, essentially arguing that the ALJ (like LIRC in Beecher) erroneously placed the burden of looking for suitable work on the applicant as part of making the prima facie case. The applicant also notes that his expert (Roman) said he was permanently and totally disabled, and that the ALJ specifically found his permanent restrictions prevented him from further employment in the labor market. Thus, the applicant asserts, he made his prima facie case, shifting the burden to Kenosha County to prove work was regularly and continuously available to him. The applicant goes on to assert that Kenosha County failed in this burden, noting that not only did Kenosha County vocational expert Alberte erroneously assume he could work full-time, but also that she did not identify any single job actually available to him. Further, the applicant argues that the retirement income sources, which the ALJ evidently based his decision upon, are legally irrelevant.
Kenosha County's response is that Wis. Admin. Code DWD 80.34(1) (3) requires the commission to consider a number of factors in determining loss of earning capacity. Kenosha County asserts the ALJ properly considered those factors, and determined the applicant failed in his burden of proof. Kenosha County goes on to assert that its vocational evidence established the applicant has suitable work available, and rebutted the applicant's prima facie case.
The court of appeals decision in Beecher has been officially published and thus has statewide precedential effect. Wis. Stat. § § 752.41(2) and 809.23. This is not changed by the fact that the supreme court has granted review in that case. The commission emphasizes, therefore, that its ultimate decision is governed by the court of appeals' holding in Beecher as well as the holding in Balczewski. However, from a practical standpoint, the possibility exists that the court of appeals' decision in Beecher may be reversed, or at least modified, by the supreme court in its decision on review. To possibly forestall a motion for reconsideration under Wis. Stat. § 102.18(4)(c) in that event, the commission shall discuss two of the competing viewpoints arising from Balczewski that may be finally resolved by the supreme court in Beecher but have been raised by the parties here.
b. Did applicant make a prima facie case?
The first question is whether the applicant made a prima facie case that he has been injured in an industrial accident and, because of his injury, age, education and capacity, he is unable to secure any continuing gainful employment. This turns, of course, on the meaning of a "prima facie case," and the extent of evidentiary showing necessary to make a prima facie case.
One view is that an injured worker need only make a showing similar to that followed under the summary judgment methodology, where the court looks only to the moving party's affidavits and other proof to determine whether it has made a prima facie case. (4) Under this view, the commission should not weigh the evidence or consider the evidence offered by an employer in determining whether a worker has made a prima facie case. Rather, the commission would be required to find the worker made a prima facie case shifting the burden of proof if the injured worker presented evidence that, viewed by itself, is legally sufficient to establish that work injury and other factors have left him or her an odd lot worker.
The Beecher court of appeals decision, frankly, espouses this meaning of the term "prima facie case." The court of appeals states:
Balczewski instructs that when the claimant produces evidence that he or she is relegated to odd-lot status and makes a prima facie case, the burden shifts. [Underlining supplied.]
Id., at 264 Wis. 2d Wis. 2d 408, 24. In other words, the court of appeals indicated that Balczewski imposes only a burden of "production" -- not persuasion -- on the injured worker in making his prima facie case before the burden shifts to the employer. Presumably, an injured worker is required to put some evidence in support of his claim before the burden shifts, so that the burden does not rest on the employer even if the applicant puts on no case all. In determining whether the applicant's burden of production is met, the factfinder may reasonably limit the inquiry to determining the legal sufficiency of the evidence the injured worker offers in support of his or her claim, rather than looking at its persuasiveness vis-à-vis all the evidence in the record.
However, the term "prima facie case" has more than one meaning, at least in cases that have reached the point of finding facts on a fully developed record at the conclusion of a trial or hearing. For example, the U.S. Supreme Court has held
"[t]he phrase 'prima facie case' not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue."
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, note 7, 109 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The court went on to note that the term "prima facie case" is used in its first sense -- the establishment of a mandatory, rebuttable presumption -- in employment discrimination cases.
In that context, the Burdine court held that "the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination." Id., at 450 U.S. 252-53. (5) Thus, the Burdine court concluded: "If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case," id., at 450 U.S. 254. The Wisconsin appellate courts follow the Burdine holding that a complainant in an equal rights case has the burden of proving a prima facie case by a preponderance of the evidence. Currie v. DILHR, 210 Wis. 2d 380, 390 (Ct. App. 1997). The references to "believing the plaintiff's evidence" and to the "preponderance of the evidence" in such cases indicate that the factfinder is required to weigh all the evidence in determining whether the facts underlying a prima facie case have been proven. (6)
In Balczewski, the supreme court found that the injured worker had made a prima facie case that she was permanently and totally disabled under the odd lot rule, and that the employer's evidence failed to disprove it. Id., at 76 Wis. 2d 498. However, it is noteworthy that the Balczewski court never explicitly referred to a burden of production. Rather, the court considered the relative persuasiveness of the injured worker's evidence, observing that the opinion of the worker's vocational expert that the worker was 100 percent disabled for industrial purposes had not been attacked or questioned on cross-examination, id, at 76 Wis. 2d 492, and that to the extent the employer attempted to offer contrary vocational evidence from the injured worker's neurologist, the neurologist's testimony was beyond his area of expertise and incompetent, id., at 76 Wis. 2d 497-98. Finally, the court concluded by providing the worker the chance to supplement her prima facie case on rehearing, id., at 76 Wis. 2d 499, presumably to make it more persuasive in light of the evidence to be offered by the employer. Thus, Balczewski may be read to be consistent with the requirement that an injured worker persuade the factfinder that he or she is or has been unable to secure any continuing gainful employment as a result of his or her work injury before the burden shifts to the employer to show that actual employment exists for the worker and that he or she is employable.
Requiring an injured worker to actually persuade the factfinder that he or she is unable to find work before the burden shifts to the employer is also supported by the Balczewski court's quotation of the discussion of the odd-lot doctrine in the English case of Cardiff Corporation v. Hall, 1 K.B. 1009, 1020 (1911):
"'...If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well known branch of the labour market -- if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well known lines of the labour market, I think it is incumbent upon the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase, I should say that if the accident leaves the workman's labour in the position of an "odd lot" in the labour market, the employer must shew that a customer can be found who will take it . . . .'"
Cardiff indicates that the burden is on the injured worker to establish that his or her injury has left him or her unable to secure employment in any well known branch of the labor market. A worker who does that proves that he or she is "in the position of an odd lot" in the labor market. At that point, the burden then shifts to the employer to show that there is in fact a market for the type of "special employment" that he or she can do despite his or her odd lot status.
In addition, the Balczewski court's quotation of Professor Larson's treatise suggests an underlying purpose of the odd lot rule is to make it clear that a worker claiming permanent total disability under the "odd lot rule" need not show that he or she is in a state of "utter and abject helplessness." Balczewski, at 76 Wis. 2d 494. Rather, a worker may be permanently and totally disabled despite the ability "to earn occasional wages or perform certain types of gainful work," or evidence of "sporadic employment and wages." Id., at 76 Wis. 2d 494-95. This suggests that Balczewski may not have been intended to completely relieve a worker of the burden of persuasion in odd lot cases. Rather, while a worker claiming odd lot disability need not prove that he or she is completely helpless, he or she must still persuade the factfinder that he or she is no longer "capable of becoming an ordinary workman in any well known branch of the labor market."
Under that interpretation of the term "prima facie" case, the factfinder must consider all the evidence in the record to determine if the injured worker has proven that he or she is an odd lot worker. A worker who so persuades the factfinder rebuttably establishes that he or she is unemployable. Such a worker will prevail in his or her claim for permanent total disability, unless the employer meets its burden of proving that, despite the fact the worker has not been able to secure continuing and gainful work due to factors set out in Balczewski, some kind of work is regularly and continuously available; that is, that there is a stable market for the worker's "odd lot" services from some employer or employers.
Under this interpretation, it also seems reasonable that a factfinder would consider the factors set out in Wis. Admin. Code DWD 80.34(1) in determining whether the worker has made the prima facie case. That provision specifically directs the factfinder to take the listed factors into account in cases of permanent total disability under Wis. Stat. § 102.44(2). In addition, while the provision includes a number of the same factors (age, education, training) expressly identified by the Balczewski court for consideration of a worker's prima facie case, it also includes efforts to find work in Wis. Admin. Code DWD 80.34(1)(h).
The distinction between the two competing views of the meaning "prima facie case" is best illustrated by considering what each party is required to show. Under the "production" view espoused by the court of appeals, the injured worker is required to provide some evidence that there is no continuing and gainful employment available to him which the employer may rebut by making the opposite showing that there is in fact such work. Under the "persuasion" view, if an injured worker persuades the factfinder that is unable to secure continuing and gainful employment -- that he or she "is incapable of becoming an ordinary worker in any well known branch of the labour market" -- the burden shifts to the employer to show that some kind of regularly and continuously available employment nonetheless does exist for the injured worker.
Turning to the facts of this case, the commission concludes that the applicant has in fact made a prima facie case, regardless of how the term is defined. As noted above, of course, the court of appeals' holding in Beecher is now the law on this point, and it requires only that the applicant meet a burden of production in making his prima facie case. By themselves, the medical restrictions of Dr. deDianous and the vocational report of Ms. Roman, if credited, would be legally sufficient to show that because of his injury, age, education and capacity, the applicant is unable to secure any continuing gainful employment. In other words, that evidence satisfies the burden of production described by the court of appeals in Beecher.
Moreover, viewing the record as a whole, the applicant's evidence is persuasive on this point as well. Kenosha County discharged the applicant because his permanent restrictions prevented him from working for the County. The applicant's expert opines he cannot find work elsewhere, and the commission, like the ALJ, credits that opinion. Kenosha County's vocational expert Alberte opines otherwise, but she erroneously assumes he can work full time. Further, the types of jobs she hypothecates are similar in nature to those duties the applicant had with Kenosha County, but for which Kenosha County now considers him unfit.
In addition, Ms. Alberte's opinion that the applicant is not an odd lot worker seems to be based in some degree on medical questions that are beyond her expertise. (7) For example, she observes that the restrictions set by Dr. deDianous are appropriate given his age and underlying health conditions, and she wonders about the issue of "which injury produced this claimant's physical restrictions and limitations." However, Dr. deDianous quite clearly opined that the applicant's June 19, 2000, work injury caused his disability which gave rise to the work restrictions. The commission sees no competent evidence to the contrary, noting that the applicant's permanent restrictions that resulted in the applicant's discharge were set by Dr. deDianous following the surgery made necessary by the applicant's work injury. Thus, weighing all the evidence -- including the applicant's lack of substantial effort to find work with another employer under Wis. Admin. Code § DWD 80.34(1)(h) (the court of appeals decision in Beecher notwithstanding) -- the commission would still conclude the applicant had made his prima facie case.
In sum, regardless of whether the applicant bears a burden of production or persuasion with respect to the facts underlying his "prima facie case" under Balczewski, he has met it here.
c. Rebutting the prima facie case.
Has Kenosha County rebutted the prima facie case by showing that some kind of work is regularly and continuously available to the applicant or that the applicant is in fact employable and jobs do exist for him? Under Balczewski, this inquiry must address "the specific ability of [the injured worker] to obtain stable employment." Id., at 76 Wis. 2d 498. The commission concludes that Kenosha County has not met its burden under the facts of this case.
First, of course, Kenosha County's vocational expert Alberte assumed the applicant could work full time under Dr. deDianous' restrictions, an error which significantly undercuts her opinion about the availability of work for him. Second, she does not identify any specific jobs the applicant can do, but only identifies the kinds of jobs that the applicant might be able to do without much regard to whether they are available generally, much less available to this 68-year-old high school graduate. In essence, Ms. Alberte does not do much more than "simply show[] the applicant is capable of light duty work, and then add[] a presumption that such work is available," which Balczewski states is insufficient to rebut an odd lot case. Third, as stated above, the type of work she identifies is quite close in nature to the applicant's former job which he cannot do. In other words, the respondent has failed to show, in the words of Cardiff, a customer for the special employment to which the applicant's injuries have limited him. Finally, given these facts, the applicant's efforts to find work -- assuming that under Beecher they may be considered at least in rebuttal of the prima facie case -- are relatively less significant here where the record demonstrates substantial barriers to employability independent of the applicant's efforts to find work with another employer after Kenosha County discharged him.
d. Pension benefits.
What of the pension benefits and other sources of income that Ms. Alberte alludes to her report? Regardless of whether the benefits are considered as part of the applicant's prima facie case or as evidence in rebuttal, the commission declines to deny the applicant's claim for permanent total disability simply because he "retired" after the work injury or because there are independent reasons that might later have led him to retire. In Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 402-04 (1969), the court rejected the notion that the right to seek benefits for loss of earning capacity is necessarily cut off by a voluntary retirement. The court noted that "it was not the circumstances of the termination of employment that are controlling [but] the actual or medical or pathological condition of the worker at the time of the termination that is controlling." Id., at 42 Wis. 2d 403-04.
It would be a different question, of course, if the applicant's injury played a lesser role in the applicant's decision to "retire." This might arise if Kenosha County wanted him back at work, or the vocational evidence made it clear a work search would provide jobs, but the applicant blocked re-employment by retiring. This could justifiably lead to the conclusion that the retirement rather than the injury led to the applicant's wage loss, or a substantial portion of the wage loss, justifying a lower award for loss of earning capacity. See for example, William Stuart v. Delphi Automotive, WC claim no. 1999-033288 (LIRC, September 10, 2002) and the cases cited therein. But here the more convincing evidence indicates exactly the opposite.
Specifically, the applicant was working year round, full time when he was hurt. After his injury, Kenosha County discharged the applicant because of his work restrictions from that injury which limit him to light duty and prevent full time work. The applicant did not "retire" until several months after Kenosha County fired him, and when he was discharged he affirmatively asked Kenosha County to keep him posted for future jobs. There is no credible evidence of any other jobs he can do. Further, the idea that the applicant was about to retire when he was hurt runs contrary to his testimony, and to the fact that he had gone to full-time employment only a few years early when the opportunity was offered.
Finally, while age is a factor to be considered in assessing loss of earning capacity under Wis. Admin. Code § DWD 80.34(1)(a), there is no legal authority for reducing or denying his award based solely on the expectation the applicant would retire soon or that he had independent sources of income. Rather, in his treatise, 5 Larson, Worker's Compensation Law (LEXIS NEXIS 2003), Professor Larson writes:
"93.02[2][f] Benefits Extending into Retirement Years
"One final caution must be entered in applying the concept of estimating probable future loss due to injury. If permanent disability or death benefits become payable, they are not limited to the period of what would have been the claimant's active working life. In other words, if a person becomes totally permanently disabled at age twenty-five, and is awarded benefits for life, they obviously do not stop when he or she is sixty-five, but extend on into the period of what probably would have been retirement. This being so, if a person is permanently and totally disabled at age sixty, it is not correct to say that benefits should be based on the theory that his or her probable future loss of earnings was only five years of earnings. The right to have compensation benefits continue into retirement years is built into the very idea of worker's compensation as a self-sufficient social insurance mechanism. This point was made expressly by the Arizona court. The deceased worker, aged sixty-four, had planned to retire. In any event, he would have had difficulty securing union approval to work elsewhere. It was held that full benefits were payable to his widow. [Footnotes and citations omitted.]"
3. Award.
Accordingly, the commission concludes the applicant is permanently and totally disabled, and has been so since at least the date he claims, August 10, 2001, when Dr. deDianous indicated the applicant ended healing subject to the permanent, post-surgery restrictions he had set on April 20, 2001 (exhibits C and D). (8)
The applicant is therefore entitled to compensation for permanent total disability as of August 10, 2001, accruing at the weekly rate of $478.14 (two-thirds of the applicant's average weekly wage of $717.20). As of March 26, 2004, 137 weeks of permanent total disability compensation have accrued, totaling $65,505.18. Kenosha County is entitled to a credit for the permanent partial disability compensation it paid attributable to this period (70 weeks at $184 per week) totaling $12,880, leaving a net amount in permanent total disability compensation of $52,625.18 accrued as of March 26, 2004.
The applicant agreed to an attorney fee, set at twenty percent of the additional
compensation awarded, subject to the 500-week limit under Wis. Admin. Code
§ DWD 80.43(3). The fee on the accrued compensation is $10,525.04 (0.20
times $52,625.18), and that amount, plus costs of $713.13 shall be deducted from
the net amount accrued and paid to the applicant's attorney within 30 days.
Thereafter, the fee shall be paid to the applicant's attorney at the monthly rate of
$414.39, and deducted from the compensation as it accrues, through the week
ending March 11, 2011, which is the 500th week after August 10, 2001.
The amount due the applicant through March 26, 2004, is $41,387.01, which equals the net amount due ($52,625.18), less the fee thereon ($10,525.04), and less attorney costs ($713.13).
Thereafter, permanent total disability benefits shall be paid for a long as the applicant lives, at the monthly rate of $2,071.94, as follows:
The parties stipulated the order should be left interlocutory, regardless of how the compensation issues were decided.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days from the date of this order, Kenosha County shall pay all of the following:
1. To the applicant, Charles Istvanek, the sum of Forty-one thousand three hundred and eighty-seven dollars and one cent ($41,387.01) in disability compensation.
2. To the applicant's attorney, Thomas W. Durkin, the sum of Ten thousand five hundred and twenty-five dollars and four cents ($10,525.04) in fees and plus costs of Seven hundred thirteen dollars and thirteen cents ($713.13).
Permanent total disability benefits accruing after March 26, 2004, shall be paid to the applicant, for life, as follows:
1. On the 26th of each month beginning on April 26, 2004 until the month including March 11, 2011: to the applicant, the sum of One thousand six hundred fifty-seven dollars and fifty-five cents ($1,657.55) per month, and to the applicant's attorney, the sum of Four hundred fourteen dollars and thirty-nine cents ($414.39) per month.
2. On the 26th of each month thereafter, to the applicant, the sum of Two thousand seventy-one dollars and ninety-four cents ($2,071.94) per month.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed March 25, 2004
istatac . wrr : 101 : 3 ND § 5.31
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility. He stated he believed the applicant felt he had a great job with Kenosha County, and would have returned if he could have, but was not really interested in employment anywhere as was shown by his lack of efforts to find work. The ALJ explained that his finding that the applicant's permanent restrictions prevented him from further employment should be read in context the preceding sentence of the ALJ's order that refer to the applicant's pre-existing conditions including heart disease and back problems.
As explained in the body of this decision, however, the unrebutted medical evidence in the record attributes to his work injury the disability giving rise to the applicant's permanent restrictions. Further, it was only after the surgery made necessary by the work injury that Kenosha County discharged him. Finally, the applicant's efforts to find work, regardless of whether or when they even may be considered under Beecher, are of relatively less significance here where the record (including the opinion of Kenosha County's vocational expert) offers no credible basis for concluding the permanent work restrictions themselves do not preclude employment.
cc:
Attorney Thomas W. Durkin
Attorney Anthony Milisauskas
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(1)( Back ) The commission uses the spelling of the applicant's last name from his hearing application.
(2)( Back ) The court of appeals decision was handed down after the hearing before the ALJ in this matter.
(3)( Back ) Wisconsin Admin. Code DWD 80.34(1), which was promulgated after Balczewski was decided, specifically refers to determinations under Wis. Stat. § 102.44(2), the statute governing permanent total disability. In particular, Wis. Admin. Code § DWD 80.34(1)(h) directs ALJs and the commission to consider an injured worker's efforts to obtain suitable employment. In addition, Wis. Stat. § 102.17(7)(a), which again cross-refers to Wis. Stat. § 102.44(2), also gives the commission the discretion to depart from the opinions of vocational experts and to base its determinations on all the evidence in the record.
(4)( Back ) See, for example, Grams v. Boss, 97 Wis. 2d 332, 338 (1980).
(5)( Back ) The court also held that to meet the burden of establishing a prima facie case of employment discrimination, "the plaintiff must prove by a preponderance of the evidence" the facts giving rise to an inference of illegal discrimination. Id. at 450 U.S. 253.
(6)( Back ) The Balczewksi court refers to the odd lot rule as a "rule of evidence." The Wisconsin rules of evidence provide at Wis. Stat. § 903.01:
"903.01 Presumptions in general. Except as provided by statute, a presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
The Judicial Council's commentary indicates that in applying this rule, the trier of fact is to first determine whether the party raising the presumption has established the "basic facts" giving rise to the presumed fact by preponderance of evidence, before turning to the question of whether the other party has disproved the actual existence of the "presumed fact" by a preponderance of the evidence. See 59 Wis. 2d R50-R51.
Of course, Wis. Stat. § 903.01 does not apply in worker's compensation cases, at least not to shift the burden of proof under the "traveling employee" presumption found in Wis. Stat. § 102.03(1)(f). Goranson v. ILHR Department, 94 Wis. 2d 537, 550-553 (1980). Further, the rules of evidence are not strictly applied in workers compensation cases. Ibid. Nonetheless, Wis. Stat. § 903.01 may provide some analytic weight in considering whether the term "prima facie case" as used in Balzcewski imposes a burden of production or persuasion on an injured worker. Reading Balczewski to require an injured worker only to "produce" evidence also could necessarily alter the "substantial and credible evidence" standard of review, at least in part, a concern underlying the court's decision in Goranson, id., at 94 Wis. 2d 551-52.
(7)( Back ) Under Wis. Stat. § 102.17(1)(d), certified reports of physicians, podiatrists, surgeons, psychologists, and chiropractors are admissible as evidence of diagnosis, and cause and extent of disability.
(8)( Back ) This also appears to be the day when Kenosha County stopped paying what is listed as "salary" (albeit at the TTD rate) in the department's records.
uploaded 2004/03/30