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


WILLIAM J ANGELO, Applicant

AZCO HENNES INC, Employer

TRANSPORTATION INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94067747


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 29, 1997
angelwi.wsd : 101 : 6  ND 5.10

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The administrative law judge awarded the payment of temporary disability to September 19, 1995 and permanent partial disability at five percent compared to permanent total disability. The employer and the insurer (collectively, the respondent) appeal.

First, the respondent contends it should only be liable for temporary disability to July 31, 1995. The respondent contends the applicant is ineligible thereafter for refusing work within his temporary restrictions.

However, the work offered was in Fond du Lac, about 100 miles away from his home in Salem in southwestern Kenosha County. The applicant would also have had to refrain from taking his pain medication if he drove that distance for work, or presumably any distance at all. Independent medical examiner Boblin suggested the applicant could simply not take the medication if he was commuting to Fond du Lac, but even IME Boblin agreed that the applicant's commute should be limited to the Milwaukee area if possible. Further, the commission generally does not require injured workers to commute long distances for work within permanent or temporary restrictions. (1)

The respondent asserts that, since the applicant previously commuted for several months to work in Port Washington, a commute to Fond du Lac should not be unreasonable. Of course, the applicant was working for the employer at Pleasant Prairie Power Plant in Kenosha County when he was injured. Moreover, he testified the union work he did for the named employer (and other employers) was mainly in the Kenosha area. When he did travel to Port Washington, he did not have a neck condition which required medication. Finally, the commission is not inclined to accept the respondent's contention that a commute to Fond du Lac would not be significantly longer than a commute to Port Washington.

The respondent also challenges the ALJ's award for permanent partial disability. IME Boblin opined the applicant sustained no permanent disability, suggesting that the applicant greatly exaggerates his pain.

On the other hand, IME Boblin did agree that continuing treatment for over a year beyond the date of injury was reasonable. Beyond that, of course, the opinions of Drs. Delahunt and Dr. Lerner support an award for permanent disability based on an injury to the cervical spine. Further, the December 1994 MRI shows mild central herniated discs at two cervical levels, including the symptomatic C6-7 level. The herniated discs do not impinge the cord or nerve and do not require surgery. They do, however, impinge the spinal canal. On this record, the commission is satisfied that the work injury in fact caused permanent disability at the applicant's cervical spine.

IME Boblin states in his report that one treating doctor (Cushmann) opined that the applicant plateaued with no permanent partial disability or work restrictions. However, the commission could not locate a report from Dr. Cushmann stating such an opinion. The record does contain Dr. Cushmann's March 30, 1995 letter to Dr. Jayaprakash. However, that letter, if anything, documents ongoing complaints which Dr. Cushmann hoped Dr. Jayaprakash could help resolve. While Dr. Jayaprakash subsequently released the applicant to work on June 5, 1995, he did so with restrictions to light duty work and without opining he had reached a healing plateau.

cc: ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC


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Footnotes:

(1)( Back ) Janice Groehler v. Horton Manufacturing Co. Inc., WC claim no. 930311849 (LIRC, June 5, 1996), affirmed, case no. 96-CV-73 (Wis. Cir. Ct. Burnett County February 10, 1997); Wayne Piper v. Roehl Transport Inc., WC claim no. 94028270 (LIRC, March 26, 1997), affirmed case no. 97 CV 503 (Wis. Cir. Ct. Brown County, October 8, 1997); and Loken v. Roehl Transport Inc., WC claim no. 93041607 (LIRC, March 19, 1997). Loken is currently on appeal to circuit court. These cases all involved offers of work after the injured worker had reached a healing plateau, in attempt to eliminate liability under Wis. Stat. 102.44 (6). Although the job offer here was during a period of temporary disability, the principle should be the same. If anything, one might argue even less travel may be demanded while a worker is still healing.