STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
RICK E RAINER, Applicant
THOMAS P ZELLMER, Employer
EMC COMPANIES, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 90038142
The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued on December 20, 1996.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge, concerning his assessment of the credibility of witnesses, hereby sets aside the Findings and Order below and substitutes the following therefor:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant, who was born on January 30, 1967, was employed as an over-the-road truck driver when he was injured on February 20, 1990. The applicant testified that he was driving for the employer and while unloading freight he slipped on a diamond plate and broke his fall with his right arm. The applicant testified that he had surgery with Dr. Chrabaszca in 1990. The applicant testified that he was released to return to work and he went to work for another company as a truck driver but could not load or unload freight. The applicant also testified that construction work was hard on his shoulder and that he drove truck again for about one and one-half months.
The applicant testified that he had a second surgery in March 1993, and was released to work in September 1993. The applicant testified that he returned to work in the state of Arkansas and that the employer did not ask about his injury but that he continued to have problems with his right shoulder.
The applicant testified that he saw Larry Seifert with the Division of Vocational Rehabilitation in Arkansas and was declared eligible for vocational rehabilitation training in that state. The applicant testified that he was given a choice of taking pre-chiropractic classes and that he started the classes in the fall of 1994 and returned in the fall of 1995. The applicant testified that he quit school in November 1995 for financial reasons but that he currently wishes to go back to school in the fall of 1996.
The applicant testified upon cross-examination that the first retraining was in the fall of 1994 when he took four courses and the spring of 1995 but that he withdrew in the summer of 1995 and the fall of 1995. The applicant admitted that he had worked as an over-the-road truck driver since he last worked for the employer for about a year. The applicant also admitted that he had performed some heavy work in construction after his injury and surgery and that he did not seek retraining until 1994. The applicant testified that he is working on an associate degree which will take four or five years and then he will go on to chiropractic college.
The employer presented the testimony from Mr. Zellmer who testified that in May or June 1990, the applicant told him that he was done with truck driving because he wanted to get into sales and not due to his work injury. The applicant presented the medical report from Dr. Chrabaszca who indicated that the applicant could return to work in March 1991 and he did not assess any permanent disability. Dr. Chrabaszca stated that he was unable to determine the permanent disability as of the time of the report on November 23, 1992. The applicant also included a letter from Dr. Bartlett who indicated that the applicant continued to have a difficult problem and wondered whether anything could be done to improve his situation and he suspected that there may be some persistent anterior capsular laxity. The applicant did not submit any medical records following his 1993 surgery or any other evidence of any permanent restrictions or disability.
The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony. The administrative law judge indicated that he found the applicant to be credible in his testimony. However, the employer contends in its petition for commission review that the applicant did not establish any permanent disability or the fact that he was unable to perform his former work as a truck driver or other work entitling him to vocational rehabilitation training benefits.
Under Wis. Stat. § 102.61 (1r) training must be undertaken within 60 days from the date when the applicant has sufficiently recovered from the injury to permit doing so or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation. The applicant argues that he undertook the training within 60 days after first contacting the Arkansas DVR in August 1994. However, it must be noted that the applicant's treating physician released him to return to work in March 1991, and that the applicant did not seek rehabilitation training opportunities until three and one-half years later in August 1994. Further, the applicant had not established that he has any permanent disabilities or restrictions that would not allow him to perform his normal work as a truck driver. The applicant returned to truck driving work, as well as performed other heavy labor and contracting work prior to seeking retraining benefits. Although the applicant testified that he had problems with his shoulder performing this type of work there was no medical reports from any physician indicating any restrictions or disabilities resulting from his work injuries.
Based on the lack of evidence that the applicant suffered any permanent disability given the delay in seeking retraining benefits upon being released by his treating physician and given the applicant's work history following his work injury, the evidence was sufficient to raise a legitimate doubt that the applicant was entitled to vocational rehabilitation training benefits following this work injury.
NOW THEREFORE, this
The findings and order of the administrative law judge are set aside and the commission's findings and order substituted therefore. The applicant's claim for vocational rehabilitation training benefits is dismissed.
Dated and mailed: October 7, 1997
raineri.wrr : 175 : 8 ND § 5.39 § 5.40
Pamela I. Anderson, Chairman
David B. Falstad, Commissioner
ATTORNEY WILLIAM F BAUER
COYNE NIESS SCHULTZ BECKER & BAUER SC
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