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


KIMBERLY RODGERS, Applicant

LEADER NURSING & REHABILITATION, Employer

NATIONAL UNION FIRE INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93068739


ORDER

Pursuant to its authority under Wis. Stat. 102.18 (3), the Labor and Industry Review Commission remands this case to the Worker's Compensation Division of the Department of Workforce Development for testimony from a vocational rehabilitation counselor from the Division of Vocational Rehabilitation (DVR) concerning the applicant's eligibility for services from DVR under 29 USC 701 to 769.

Dated and mailed: December 11, 1997
rodgeki.wpr : 101 : 3 ND 5.40

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The presiding administrative law judge (ALJ) found the applicant eligible for benefits while she received retraining. In making this finding, the ALJ concluded that the applicant had been found eligible for services by DVR.

An injured worker who is "entitled to and receiving instructions" under the federal vocational rehabilitation law (and its successor statutes) is entitled to travel and maintenance expenses under Wis. Stat. 102.61, and compensation at the rate for temporary total disability under Wis. Stat. 102.43 (5). Moreover, once the division of worker's compensation or the commission finds a work injury causing permanent disability or restrictions, those agencies must generally defer to the determination of DVR as to whether the injured worker is eligible for vocational rehabilitation services, including retraining. Thus, if DVR certifies the injured worker for retraining, the applicant is eligible in most cases for vocational rehabilitation benefits under Wis. Stat. 102.43 (5) and 102.61.

However, the worker's compensation division and commission may deny vocational rehabilitation benefits under ch. 102, Stats., to an injured worker, despite DVR certification, under two circumstances:

1. DVR's interpretation of the vocational rehabilitation law is entirely outside the scope of reasonable interpretation and so a clear abuse of administrative power; or

2. Highly material facts were misrepresented to, or withheld from, DVR during the certification process.

The supreme court set out these guidelines in Massachusetts Bonding & Ins. Corp. v. Industrial Commission, 275 Wis. 505 (1957), concluding that the legislature did not intend to give the Industrial Commission (and its successors) power to interpret the vocational rehabilitation laws. The court went on to say:

"We conclude that any power of review given to the Industrial Commission is limited.

"Unless it is shown before the commission that highly material facts were misrepresented to or withheld from the state board [DVR] or that the state board has applied an interpretation of the rehabilitation laws which is entirely outside the reasonable scope of interpretation and hence a clear abuse of administrative power, the Industrial Commission must find that any applicant who is receiving aid from the state board is also entitled to it."

Id., at 275 Wis. 2d 512.

In this case, the applicant introduced certified copies of DVR's records to establish that she was certified for retraining by DVR in 1996 (exhibit D), and a letter from a counselor showing she had been certified for services in 1994 (exhibit E). However, no one from DVR actually testified, neither the applicant's counselor nor DVR's record custodian. Consequently, both exhibits D and E are inadmissible hearsay under the Wisconsin rules of evidence. (1) The respondent objected to their admission on that ground at the hearing.

Of course, as the applicant points out, an ALJ may admit hearsay evidence in a worker's compensation hearing if the hearsay has probative value. Wis. Admin. Code DWD 80.12 (1)(c). However, the respondent is correct in pointing out that such hearsay evidence, while perhaps admissible, may not serve as the sole basis for a finding in a contested case. Erickson v. DILHR, 49 Wis. 2d 114, 121-22 (1970) and Village of Menomonee Falls v. DNR, 140 Wis. 2d 479, 610 (Ct. App. 1987). Nor may the commission rely on the applicant's testimony that she was told by the counselor that she was certified for DVR services, presumably under federal law. That testimony, too, is hearsay. In short, a strong argument may be made that the applicant has not proven she is entitled to and receiving instruction under 29 USC 701 to 769.

The respondent, of course, requests the commission to simply dismiss the applicant's vocational rehabilitation claim for lack of proof. However, it is axiomatic that strict adherence to the rules of evidence is not required in a workers compensation hearing. Goranson v. DILHR, 94 Wis. 2d 537, 551 (1980). On that basis, the commission believes it more appropriate to exercise its authority to require additional testimony in this case rather than denying the applicant's claim completely on an evidentiary ruling.

Nor do the employer's other defenses, at least on the current record, require a denial. The claim that highly material facts were withheld from DVR does not have much force; the mere absence of a fact from the DVR counselor's report does not establish it was withheld. And the applicant's hearing testimony certainly does not establish that she withheld or misrepresented any facts.

The employer also argues that the DVR records admitted at the hearing do not show the retraining ordered by DVR was for an impairment from the 1993 work injury. True, the IWRP (2) mentions both a back injury and substance abuse related depression as the applicant's impairment, and the IWRP does not segregate out disability from the 1993 work injury with the named employer from disability from the September 1995 car accident and the May 1995 work injury with another employer. On the other hand, the applicant was first certified for DVR services in 1994, before either of the 1995 injuries. Moreover, a logical reading of the pages 2 and 3 of the 1995 DVR records indicates that the 1995 DVR certification was in fact based on the 1993 injury with the named employer. Finally, Wis. Stat. 102.61 read literally only seems to require the applicant have a work injury, not that impairment from the work injury is the sole reason for retraining.

In sum, testimony from a DVR counselor, or other DVR official will eliminate any evidentiary problem concerning the applicant's entitlement to instruction under the federal vocational rehabilitation laws. In addition, the respondent will have a chance to cross-examine the DVR counselor to prove its claim that highly material evidence was withheld from DVR and develop its assertion that the physical disability leading to the certification is not from the 1993 work injury at issue here.

cc:
ATTORNEY PAULA R POSSIN

ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC


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Footnotes:

(1)( Back ) Wisconsin Statute 908.03 (6), the so-called "business records" exception does not apply in this case as the custodian of the records must testify that the records were made in the course of a regularly conducted activity.

(2)( Back ) Individualized written rehabilitation plan.