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


MARK WELLSANDT, Applicant

CHIPPEWA COUNTY, Employer

CHIPPEWA COUNTY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93050745


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. The fifteenth (last) of the ALJ's FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted and the following substituted therefor:

"The applicant is thus entitled to temporary total disability benefits from June 14 through October 9, 1994, and from November 10, 1995 to January 9, 1996, in addition to the amounts previously paid by the respondents for temporary disability. According to information provided by the respondent after the hearing, the applicant became entitled to social security disability benefits as of May 1994. Consequently, the temporary disability awarded hereunder is subject to the reverse offset under Wis. Stat. 102.44 (5), and is limited to $195 per week. Since the reverse social security offset sets out a limit on the net award, an attorney fee of $39.00 per week is also awarded for the periods in which additional compensation is awarded.

"Additional temporary disability awarded to the applicant hereunder for the periods from June 14 to October 11, 1994, and from November 10, 1995 to January 10, 1996, equals $4,939.99. This is the sum of $3,282.49 (16 weeks 5 days at $195 per week) plus $1,657.50 (8 weeks 3 days at $195 per week). A fee totaling $988 ($656.50 plus $331.50) is also awarded for those respective periods.

"Application of the effect of the social security offset not only limits the amount of additional disability awarded hereunder, but also causes an overpayment in temporary disability previously paid. The precise calculations shall not be reiterated here, but are set out in a department worksheet and supporting documents attached to this decision. Because the overpayment of benefits previously paid exceed the additional amounts awarded for temporary disability hereunder, a net overpayment of temporary disability results.

"This decision departs from the department calculations in one respect, however. The department worksheet assumes payments of $3,936.19 in temporary disability for the period from June 14 to October 11, 1994, and of $1,989.00 for the period from November 10, 1995 to January 10, 1996. The WC-13 which the respondent agreed was accurate at the hearing does not show payments of temporary disability for those periods. Consequently, this decision assumes the $30,702.88 shown on that document accurately represents the total amount paid by the respondent in temporary disability.

"The department calculated that the total amount of temporary disability that should have been paid, taking into account both the reverse social security offset and the additional amounts awarded hereunder, to be $30,635.44. Subtracting that figure from the $30,702.88 that was in fact paid leaves a net overpayment in temporary disability of $67.44.

"The applicant has also sustained a 50 percent loss of earning capacity. Because the material submitted by the respondent after the hearing indicates that there is no social security offset on the permanent disability award, the applicant's total permanent partial disability award equals 500 weeks at his permanent disability rate of $152, or $76,000. The respondent previously conceded and paid 100 weeks of permanent partial disability ($15,200). As a result the applicant is entitled to an additional award for 400 weeks of permanent disability, or $60,800. As of November 26, 1997, 5 weeks and 6 days of the additional 400 weeks of permanent disability have accrued.

"The applicant's attorney is entitled to a fee of twenty percent of the additional permanent disability, plus $988 for temporary disability as calculated above. The future value of the fee for permanent disability equals $12,160, but as of November 26, 1997, only $182 attributable to the first 5 weeks and six days of permanent disability had actually accrued. The fee attributable to the unaccrued permanent disability is subject to an interest credit of $2,686.75, leaving a present value for the fee for permanent disability of $9,473.25. Adding the fee attributable to the temporary disability award gives a present value for the entire attorney fee of $10,461.25. The fee, together with costs of $828.61, shall be paid within 30 days.

"No amount is currently due the applicant. This is because the accrued permanent disability of $912 (five weeks and six days at $152 per week), less the fee thereon of $182.40, less costs of $828.61, less the net overpayment of temporary disability of $67.44, leaves the negative amount of $166.45.

"However, subtracting the overpayment from the amount applicant's share of the remaining 394 weeks of permanent partial disability ($47,910.40 or [$59,888 less the attorney fee thereon of $11,977.60]), leaves a total amount remaining due of $47,743.95. The amount remaining to be paid as it accrues at the monthly rate of $658.67, beginning on November 26, 1997, with the first monthly payment due on December 26, 1997."

2. The ALJ's INTERLOCUTORY ORDER is deleted and the second and third paragraphs of the Commission's INTERLOCUTORY ORDER is substituted therefor.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Within 30 days of the date of this order, the employer and its insurer shall pay all of the following:

(1) To the applicant's attorney, Manlio G. Parroni, the sum of Ten thousand four hundred sixty-one dollars and twenty-five cents ($10,461.25) as an attorney fee and Eight hundred twenty-eight dollars and sixty-one cents ($828.61) in costs.

(2) To Middlefort Clinic, Eight thousand seventy-five dollars and forty-nine cents ($8,075.49) for medical expense.

(4) To the applicant, One thousand two hundred forty-one dollars and eighty-nine cents ($1,241.89) as reimbursement of medical treatment expense.

Beginning on December 26, 1997, and continuing on the twenty- sixth day of each month beginning thereafter, the employer and the insurer shall pay the applicant, Mark Wellsandt, the sum of Six hundred fifty eight dollars and sixty-seven cents ($658.67) each month until the sum of Forty-seven thousand seven hundred forty- three dollars and ninety-five cents ($47,743.95) has been paid.

Jurisdiction is reserved for such other findings and orders as may be warranted.

Dated and mailed: November 28, 1997
wellsma.wmd : 101 : 3  ND 5.9,  5.10, 5.27, 5.35

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

1. Concessions, ALJ award.

This case arises on a conceded work injury of August 17, 1993. At issue is the nature and extent of disability from that injury, as well as liability for medical expense.

The employer and the insurer (collectively, the respondent) conceded functional permanent partial disability (PPD) at ten percent compared to disability to the body as a whole. The respondent paid temporary total disability (TTD) almost continuously from the date of injury until the applicant returned to work in February 1994, including a short period of time in March 1994.

The respondent also conceded and paid TTD from October 14, 1994 (the date of the applicant's fusion surgery) to March 24, 1995 (when treating doctor Zondag conceded the applicant could do light work). The respondent actually paid TTD after March 24, 1995 through November 10, 1995 (one month after its IME opined the applicant had plateaued from the fusion surgery), but contends it did so in error. The employer also concedes TTD from January 10, 1996 (the date of the instrumentation removal surgery) to March 8, 1996 (the date of his plateau from that surgery.)

The applicant sought, and the ALJ awarded, additional TTD from June 14 (when the applicant separated from the employer) to October 14, 1994 (when the respondent resumed paying TTD because of the fusion surgery), and from November 10, 1995 through January 10, 1996 (when the employer resumed paying TTD because of the instrumentation removal surgery.) The ALJ further found that TTD was not paid in error from March 24 to November 10, 1995.

The ALJ also adopted Dr. Zondag's rating of functional PPD at 30 percent compared to disability to the body as a whole, noting that this award was in addition to the 7 percent PPD from the 1985 laminectomy for the 1985 work injury. The ALJ further rated loss of earning capacity (LOEC) at 50 percent, into which he subsumed the 30 percent functional PPD rating. However, the ALJ did not give the respondent credit for the 7 percent PPD paid for the 1985 injury with an earlier employer.

2. Discussion.

The respondent appeals, raising several arguments.

a. Deducting 1985 PPD rating from current award.

First, the respondent claims the PPD award should be reduced by 7 percent to account for the 1985 injury. However, both IME Kokemoor and Dr. Zondag expressly stated that they rated additional functional PPD from the 1993 work injury only, not the applicant's total functional PPD including the PPD for the 1985 injury. So, the commission agrees that the functional PPD ratings should not be reduced based on the pre-existing PPD rating.

However, the respondent also asserts that the seven percent PPD rating for the 1985 injury should have been considered with respect to the LOEC award. Basically, the employer contends the prior seven percent functional PPD is part of the 50 percent LOEC, and that since the seven percent has already been paid, the employer should only have to pay 43 percent for LOEC (or 33 percent after subtracting off the 10 percent functional PPD the respondent has already paid.)

In general, though, the commission rejects such arguments. The LOEC award in this case compares the applicant's earning capacity before the 1993 injury compared to his earning capacity after the end of healing following treatment for that injury. Prior to the 1993 injury, the applicant was able to work as a mechanic for almost $12 per hour, despite the 1985 injury. After the fusion surgery to treat the 1993 injury, he is restricted to the type of work he has now: a parts counterman making less than $9.00 per hour. The 1985 injury has nothing to do with that lost capacity; despite the 1985 injury the applicant was able to work for six years as a mechanic.

As explained in Neal & Danas, Workers Compensation Handbook 5.27 (4th ed., 1997):

"It is now clear that a previous award of permanent disability cannot be subtracted from an estimate of lost earning capacity arising out of a subsequent injury. Under the law, the department's task is to judge how much the employee's earning capacity has been diminished from what it was on the date of the injury, that level being taken at 100%. There is no room in this analysis for subtracting out the effects of former injuries, which presumably would already have manifested themselves in the wage the employee was earning when injured, upon which the rate of compensation (in theory) depends."

The commission has made an exception to this general rule for two "consecutive injuries [which are] relatively close in time and [are] to precisely the same part of the body," particularly if the medical procedures following the injuries are related (such as a laminectomy after the first injury and fusion after the second.) See Henry H. Brehm v. Xerox Corporation, WC Claim no. 87-03179 (LIRC, November 10, 1989) and Roosevelt Franklin v. AF Gallun & Sons Corporation, WC claim no. 850335228 (LIRC, July 28, 1994).

In Brehm and Franklin, the injuries were one and two years apart, respectively, and the injured workers suffered both of their injuries on the same job. In this case, while the 1985 and 1993 injuries appear to be to the same general area, the injuries are 8 years apart and with different employers. The commission cannot apply the Brehm exception in this case.

b. Social security offset.

Next, the respondent argues it is entitled to the social security offset under Wis. Stat. 102.44 (5). The applicant agrees. The parties assert, however, that it is not clear whether or how the ALJ's order accounts for the offset. The commission addressed this issue in the material inserted into the ALJ's order by amendment.

c. Misconduct discharge and denial of TTD and LOEC; generally.

Third, the employer argues the applicant's LOEC, and the TTD awarded by the ALJ for periods after applicant's discharge, should be denied because of the facts of his discharge. Stated another way, the employer contends it always provided work to the applicant within his restrictions, and always would have provided such work had he not been discharged. If the applicant had not committed misconduct but remained employed, the respondent asserts, he would have had no wage loss. Had the applicant remained employed, he would not have been eligible for LOEC under Wis. Stat. 102.44 (6) nor for TTD under Wis. Stat. 102.43 (2) and Wis. Admin. Code DWD 80.47.

However, the ALJ refused to make any reduction in TTD or LOEC, citing the recent court of appeals decision in what has become known as the Brakebush case. Since the ALJ's decision, the supreme court has issued its own decision in Brakebush Brothers Inc. v. LIRC, 210 Wis. 2d 624 (1997). After considering the supreme court decision in Brakebush, the commission is satisfied the ALJ reached the proper result in this case.

d. --- Brakebush.

In Brakebush, worker Engel injured his back. He immediately saw an emergency room doctor, Moede, who took Engel off work and prescribed bed rest. Engel later saw Dr. Leonard, who ordered him to remain off work until November 6, 1991.

While Engel was off work, however, his employer found out he had been playing pool and bow hunting, despite mentioning neither of these activities to the employer or his doctors. Indeed, Engel had specifically told the employer he had been at home taking it easy. Instead of returning to work on November 7, he was suspended and ultimately discharged. Dr. Leonard later informed the employer that he (unlike ER doctor Dr. Moede) had not confined Engel to bed, but allowed him to do anything that did not hurt, and had specifically recommended Engel walk as therapy while off work. Finally, Dr. Leonard opined that while the applicant could do light duty work on November 7, 1991, he did not actually finish healing until April 1992.

The commission allowed TTD to Engel until April 1992. Ultimately, the supreme court affirmed. The court held that the workers compensation law does not permit LIRC to cut off TTD simply because the injured worker lies about his healing period activities, so long as the worker is actually healing. The court went on to conclude that playing pool and bow hunting in the fall of 1991 did not render incredible Dr. Leonard's opinion he ended healing in April 1992. It noted Dr. Leonard adhered to his April 1992 healing plateau even after being informed of Engel's bowhunting and poolplaying activities, and that the employer offered no contrary expert medical evidence.

In concluding that LIRC could not deny TTD simply because of Engel's misrepresentations concerning his medical condition, the court noted Wisconsin's history of providing benefits despite misconduct. The court pointed out that the reason for allowing TTD, despite misconduct, is that the employe continues to be limited by his work injury, and that it is the injury, not the termination from employment, that causes the worker's economic loss. The court pointed out that workers compensation is supposed to compensate employes who have lost the ability to work, permanently or temporarily, regardless of whether they are good employes.

e. --- TTD following misconduct discharge.

The facts of this case differ from Brakebush in at least one significant way. Here, the applicant actually had returned to work prior to his discharge on June 14 for failing to replace the oil in a sheriff's deputy's car while working under a last chance agreement. While he may still have been healing, he was performing work within his restrictions when he was discharged.

Thus, it is somewhat harder to conclude in this case that the work injury, not the termination, caused the applicant's economic loss. The applicant was able to work subject to restrictions after his February 1994 release and the employer provided such work to him until his discharge. Presumably, had the applicant not been fired, he would have continued in such work until at least September 1, 1994, when Dr. Zondag opined he could no longer work pending the fusion surgery.

On this basis, the respondent argues that this case is distinguishable from Brakebush, at least for the limited period after the discharge that the applicant was able to work under the same restrictions as he had while working on light duty prior to the discharge. Certainly, there is support for reducing or denying TTD in the analogous situation of a refusal of suitable light duty work, for reasons unrelated to the work injury, during a healing period. See Neal & Danas, Workers Compensation Handbook 5.10 (4th ed. 1997). Such an exception to Brakebush in this case must rest on the conclusion that the applicant's conduct with respect to the oil change was the analytic equivalent of refusing an offer of work. (1)

The commission declines to deny TTD on that basis in this case. First, the commission cannot conclude that the applicant's failure to properly change the oil in the deputy's vehicle may be viewed as the analytic equivalent of a refusal of an offer of work within the applicant's restrictions, despite the fact the applicant was working under a last chance agreement. In other words, even if the commission were to fashion an exception to the supreme court's holding in Brakebush for certain misconduct discharges amounting to refusals of suitable work during a healing period, the commission cannot conclude the discharge in this case fits that hypothetical standard.

Moreover, the holdings of both supreme court and court of appeals in Brakebush may be read to state the commission lacks the authority to eliminate TTD based on misconduct discharges, regardless of the circumstances. Indeed, the court of appeals in Brakebush ended its decision with the flat statement "compensation continues during the healing period even if the employee is fired for cause." Brakebush Brothers, Inc., v. LIRC, no. 95-2586, slip op. at 4 (Wis. Ct. App. April 25, 1996). Moreover, Wis. Admin. Code 80.47 states that compensation for TTD continues during a healing period even if an applicant can return to light duty work, unless the light duty work is furnished to the applicant. Certainly, the cases cited in the supreme court's decision supports its conclusion that the workers compensation law contains no provision for terminating compensation so long as worker remains disabled, and that Wisconsin has a long history of providing benefits to workers despite their misconduct. Brakebush, at 210 Wis. 2d 635-38.

f. --- Denying LOEC for misconduct discharge.

The commission also declines to deny the LOEC award based on the allegations of misconduct in connection with the oil change. Such a finding, again, would rest on the conclusions (a) that the employer would have continued to provide work within his restrictions to the applicant after he reached his healing plateau and (b) that his discharge following the 1995 and 1996 surgeries constituted a constructive refusal of that work.

The commission acknowledges that the respondent offered testimony that such work within the applicant's post-fusion restrictions would have been available, and it had accommodated the applicant's past restrictions (including extremely limiting temporary restrictions in February and early March 1994.) But this is obviously not as compelling a case as if the employer actually had provided such work to the applicant following the 1995 and 1996 surgeries. And it is clear that the applicant's work restrictions in 1996 after the fusion and post-fusion surgeries (20 pounds and greatly limited bending, twisting, etc.) are much more limiting than those in effect at the time of his discharge in June 1994 (40 pounds with restrictions against more than occasional twisting and working below knee level). To deny LOEC on the finding that the employer would have accommodated these new restrictions permanently is too speculative.

While the commission has denied LOEC in cases where an injured worker is discharged for misconduct, in those cases the discharge occurred after the applicant had returned to work within the permanent restrictions or shortly before a permanent release is to be given. Merrill M. Kummer v. Industrial Air Products, WC claim no. 92019275 (LIRC, June 30, 1995); Kurt D. Koltz v. Kolbe & Kolbe Millwork Company, Inc., WC claim no. 88027739 (LIRC, February 14, 1991); and Terry Ann Mallette v. Hartford Finishing, Inc., WC Claim no. 93036016 (LIRC, July 31, 1995), affirmed case no. 95 CV 402 (Wis. Cir. Ct. Dodge County, March 22, 1996). The applicant in this case was fired long before his fusion surgery was performed and post-fusion permanent restrictions were set. The commission also would not only have to conclude the facts leading to the discharge were the analytic equivalent of refusing work, but also to apply that conclusion prospectively to any work offered by the employer in the future. The commission declines to do so in this case. (2)

g. Lack of medical support for TTD.

Lastly, the employer asks the commission to deny TTD for various periods because Dr. Zondag's opinion that the applicant was not able to work during those periods is unreliable. Even assuming that were the case, the healing period does not end when an injured worker can return to work within temporary restrictions, but when "there has occurred all of the healing that is likely to occur as the result of treatment and convalescence and treatment." Knobbe v. Industrial Commission, 208 Wis. 2d 185, 190 (1932). See also Larsen v. Industrial Commission, 9 Wis. 2d 386, 393 (1960). It is also clear that an injured worker does not reach a healing plateau ending temporary disability simply because he may return to light duty work. Wis. Admin. Code DWD 80.47; Wis. Stat. 102.43 (2), (3) and (6).

The end of healing in this case is well after the point the applicant could have returned to light duty had it been available. This is evident from the reports of IME Kokemoor, who recommended the fusion surgery in June 1994, and did not actually "plateau" the applicant until October 1995. Moreover Dr. Kokemoor admitted that the instrumentation removal done in January 1996 provided a great deal of improvement in the applicant's condition (3), supporting the conclusion that the applicant did not really reach an end of healing until after that surgery was performed. Under these facts, the ALJ's conclusion that the applicant did not plateau until he healed from the instrumentation removal surgery is well-supported.

cc: ATTORNEY MANLIO G PARRONI
PARRONI SIEDOW & JACKSON SC

ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI SC


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Footnotes:

(1)( Back ) The evidence regarding the alleged misconduct came in as part of an offer of proof. The commission acknowledges the limitation on the evidence presented on the facts of the discharge. Nonetheless, the respondent, in the section of its brief urging the commission to deny the applicant's TTD and LOEC benefits based on a separation for cause, does not ask for further hearing on that issue. The commission thus concludes the testimony and exhibits coming in through the offer of proof (which the ALJ ultimately decided to admit into evidence) provide a sufficient basis to resolve the issue.

(2)( Back ) In other words, the commission would essentially have to "reopen" an award under Wis. Stat. 102.44 (6)(b) and (g) that not only had not been made, but could not have been made, at the time of the discharge.

(3)( Back ) See exhibit 2, May 22 report of Kokemoor, bottom of page 2.