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


KARLA K MITCHELL, Applicant

I T W DELTAR CHIPPEWA, Employer

ILLINOIS TOOL WORKS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96001304


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.

ORDER

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

Dated and mailed October 30, 1997
mitchka.wsd : 101 : 7  ND 5.6

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

By the time of the hearing, the employer and insurer (collectively, the respondent) had conceded, but had not yet paid, five percent permanent partial disability and a total of three months of temporary total disability beginning June 1, 1995, (1) as well as medical expenses. At the hearing, the applicant sought additional temporary total disability compensation for the entire period from June 23, 1995 (the point through which the respondent has actually paid temporary disability) to August 28, 1996 (when the applicant contends she reached a healing plateau.)

The ALJ awarded temporary total disability for the entire period the applicant requested, except for the period from January 29, 1996 (when her baby was born) to March 27, 1997 (when she returned to her treating surgeon.) The ALJ explained that the applicant's knee injury and not her pregnancy disabled her from working after June 1; that while the pregnancy delayed the surgery, an employer takes its employes "as is;" that the applicant did not unreasonably delay or refuse to submit to treatment (which would otherwise cut off her compensation under Wis. Stat. 102.42 (6)), but instead relied on medical advice; and that the employer never offered the applicant work within her restrictions after June 1, 1995.

On appeal, the respondent raises essentially two arguments: first, that the applicant's knee condition had stabilized from June 25, 1995 until her April 1996, athroscopic surgery, so she was not in a healing period between those dates; and, second, if the applicant was in a healing period, benefits during that period were not necessitated by her work-related injury but by some personal ailment. However, the commission must reject these arguments for the reasons set out below. It affirms the ALJ's carefully-reasoned decision in its entirety.

a. The GTC "stabilization" argument.

The respondent first points out that the supreme court has stated that "LIRC does not have authority to order an employer to pay an injured employe TTD benefits for the period after the employe's medical condition has stabilized and before the employe undergoes surgery." GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 461 (1994). In the present case, of course, the record indicates the applicant's knee condition was pretty much the same from June 14, 1995 (when Dr. Drawbert postponed the applicant's arthroscopic surgery because of her pregnancy) to April 17, 1996 (when he actually performed it.)
The facts under GTC Auto Parts was decided bear repeating in this case. In GTC Auto Parts, the injured worker refused to have an operation recommended by his doctor, yet the ALJ required the employer to pay temporary disability indefinitely in an attempt to force the employer to pay for vocational retraining as an alternative to surgery. In the present case, of course, the applicant has not refused to have a recommended surgery, but rather postponed surgery because of another medical condition (i.e., the pregnancy) on her doctor's advice.

In addition, the case cited by the court in GTC Auto Parts as support for the proposition that the commission cannot order temporary disability after a condition is stable and before surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960), presented facts much different than those in this case. In Larsen Co., the treating doctor had plateaued the applicant with permanent disability and no recommendation for surgery in February 1955. Thereafter, surgery was recommended in April 1956. The court held the commission's predecessor could not order temporary disability for the entire period because the applicant had not been submitting to treatment and convalescing, but had rather been "plateaued" with permanent disability by her treating doctor. Larsen Co., at 9 Wis. 2d 392. In the present case, of course, Dr. Drawbert recommended the surgery shortly in June 1995, after the date of injury, but postponed it until her pregnancy resolved. He did not "plateau" the applicant or rate permanent disability until August 1996.

Given that the applicant first had to treat her pregnancy to the point of resolution before undergoing surgery for the work injury, it cannot be said she stopped "treating." Or put another way, while the pregnancy was ongoing, the applicant was still submitting to treatment for her injury, still suffering from her injury, and still disabled from work because of it. Knobbe v. Industrial Commission, 208 Wis. 185, 189 (1932) and Larsen, supra, at 9 Wis. 2d 392.

Indeed, this case is conceptually similar to a situation where a worker has a pre-existing condition, such as hypertension or heart disease, which prevents immediate surgery for a work injury. In such cases, treatment of the underlying condition to permit surgery for the work injury cannot be reasonably considered as something separate from treatment of the work injury itself.

This is because Wisconsin adheres to an "as is" rule, under which an employer takes its employes as they are. Semons Department Store v. DILHR, 50 Wis. 2d 518, 528 (1971). The "as is" rule is usually cited in connection with a situation where a work injury makes a pre-existing condition permanently disabling, but nothing in Semons prevents application of the "as is" rule to healing period determinations for temporary disability. Otherwise, the length of a healing period would be measured by some objective standard, such as that of a healthy person of the same age, and would end temporary disability compensation before a healing period actually occurred if healing was delayed by a condition such as weight, age, heart disease or diabetes. (2)

b. The Larson "personal ailment" argument.

This leads to bring us to the respondent's second argument, based on a quotation from 4 Larson, Workers Compensation Law 57.12 (e) (1997). Professor Larson writes:

"[I]f the claimant's continued unemployment is the result, not of his employment-related impairment, but of personal ailments unrelated to his employment, there is no possible ground for continuing temporary benefits."

Professor Larson's point is sensible, and the ALJ actually followed it in reaching her decision. If a worker sustains a nondisabling laceration cut at work, but is disabled from an off- duty car accident, the mere fact the worker had a work injury should not entitle him to disability benefits. The closer case, of course, is where both the work injury and the off duty injury or "ailment" are disabling. In this case, the ALJ decided this closer issue in favor of the respondent by denying temporary disability during the period the applicant was recovering from the birth of her child.

However, the applicant's unemployment during her pregnancy (at least to the point of childbirth) was not the result of a personal ailment unrelated to employment. The applicant's knee injury was disabling. The pregnancy was not. Indeed, at one point the applicant was taken off work for her knee injury. There is no evidence any restrictions were placed upon her while she was pregnant. While the applicant's pregnancy may be viewed as a "personal ailment unrelated to employment" it was not the cause of her continued unemployment. Rather, her continued unemployment was caused by her knee injury and the employer's decision to lay her off.

However, the respondent urges the commission to read Larson to mean that, because the pregnancy prevented immediate surgery to cure and relieve the effects of the knee injury, the pregnancy was the cause for her unemployment, not the knee injury itself. Again, however, the "as is" rule discussed at length precludes this result. Second, as the ALJ pointed out in her decision, Wis. Stat. 102.42 provides that no compensation may be paid for disability if the disability is caused, aggravated or continued by an unreasonable refusal or neglect to submit to any reasonable medical or surgical treatment. Put another way, if disability is continued or extended by an unreasonable refusal to submit to surgery, it may not be compensated. This implies, that if temporary disability is continued by a reasonable refusal based on medical advice to delay surgery, it may be compensable. This seems particularly true where the reason for the refusal is a pre-existing medical condition that everyone is certain will resolve within a fixed period of time.

Moreover, the two non-Wisconsin cases that the respondent cites to the commission in its brief, both annotated in Larson, support the ALJ's decision in the present case. In the older New Jersey case, a worker suffered a work injury, then quit because of her pregnancy, then underwent carpal tunnel surgery. The New Jersey supreme court reasoned that because the worker "retired" due to the pregnancy before the surgery, she was eligible for permanent disability and medical expenses. The court denied temporary disability, though, as there was no temporary loss of income at the time of the surgery since the injured worker had already voluntarily stopped working. Electronic Associates, Inc. v. Heisinger, 111 N.J. Super. 15, 266 A.2d 601 (1970).

In the more recent South Carolina case, Orr v. Elastomeric Products, 474 S.E.2d 448, 1996 Lexis 125 (South Carolina Ct. App., 1996), a worker injured her back at work in 1990. She underwent spine surgery in 1993 and began a period of rehabilitation that included physical therapy. In 1994, she discovered that she was pregnant. At that point, she stopped all treatment for her back injury on her doctor's advice. The employer wanted to end temporary at that point, on the theory that she had plateaued.

The South Carolina equivalent of this commission and its court of appeals thought otherwise. They allowed temporary disability to continue. The court stated:

"the fact that Orr's pregnancy indirectly prolonged the period during which she was unemployable does not change the fact that her injury, not her pregnancy, rendered her unable to work."

Orr, at 1996 Lexis 125, 5.

Orr is closer to the facts in the present case now before the commission. In fact, Heisinger does not seem on point at all, as the worker there quit work herself before her surgery. In the present case, of course, the employer laid the applicant off for lack of work; she did not quit. In sum, the ALJ properly awarded temporary disability for the periods set out in her order.

Because the applicant is awarded temporary during a period when unemployment insurance benefits were paid, a copy of this decision shall be forwarded to the department of workforce development, unemployment division, bureau of legal affairs.

cc: ATTORNEY THOMAS A SIEDOW
PARRONI SIEDOW & JACKSON SC

ATTORNEY CAROL S DITTMAR
GARVEY ANDERSON JOHNSON GABLER & GERACI SC

BUREAU OF LEGAL AFFAIRS
U I DIVISION


Appealed to Circuit Court. Affirmed August 27, 1998. Appealed to Court of Appeals; affirmed sub. nom. ITW Deltar and Illinois Tool Works, Inc. v.LIRC and Mitchell ___ Wis. 2d ___, ___ N.W.2d ___  (Ct. App., No. 98-2912, Filed March 23, 1999; publication ordered)

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Footnotes:

(1)( Back ) This represented the three months of TTD the employer thought it would have paid had the surgery been done immediately; in fact the applicant did not plateau until more than four months after her April 1996 surgery.

(2)( Back ) The employer asserts in its brief that the "as is" rule does not apply as there is no evidence the applicant was pregnant when injured. However, as the applicant points out, the only evidence on the issue in the record, exhibit D, establishes that the applicant was pregnant at the time of her injury.