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


TOM HOUSEL, Applicant

TOM & CHARLIE CONNELL, Employer

AMERICAN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 81053786


The administrative law judge (ALJ) issued her findings of fact and interlocutory order in this case on May 13, 1997, following a hearing on April 15, 1997. Both parties petitioned for commission review of the administrative law judge's findings and order.

Prior to the hearing before the ALJ, the employer and the insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $280, and that the applicant suffered a compensable injury occurring on or about October 2, 1981. The respondent conceded temporary disability benefits from October 1, 1981 to August 30, 1982; the respondent paid $8,866.35 for this period which it asserts includes a $30.64 overpayment under mistake of fact. The respondent also conceded functional permanent partial disability at one percent compared to disability to the body as a whole; the respondent paid $3,500 in permanent disability which it asserts includes a $2,800 overpayment under mistake of fact. The employer also paid certain medical expenses. It now seeks a credit for the alleged overpayments.

The issues at the hearing were the nature and extent of disability beyond that conceded, and the respondent's liability for additional medical expenses. The ALJ noted the applicable wage as an issue at the hearing; however, neither party raises this issue on appeal to the commission.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the ALJ concerning the credibility and demeanor of the witnesses, the commission hereby affirms her findings of fact, conclusions of law, and interlocutory order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first five paragraphs of the ALJ's Findings of Fact and Conclusions of Law are affirmed and reiterated as if set forth herein.

The sixth paragraph of the ALJ's Findings of Fact and Conclusions of Law is amended by deleting the last two sentences thereof, and the following material is substituted therefor:

"The applicant's treating neuropsychologist (Phillip Zerfas, Ph.D.) and his treating neurologist (Francis Kruse, M.D.) released the applicant to work without restriction as of August 30, 1982. Dr. Zerfas noted the applicant would have to continue his medications, and would probably experience aches and pains, but that his return to work would in all probability be successful. In a note dated November 23, 1982, Dr. Kruse noted the applicant had been back at work and doing satisfactorily, though the applicant experienced some occipital discomfort and associated headache which did not occur particularly frequently. Dr. Kruse prescribed medication to be taken for the occipital discomfort, but did not impose any work restrictions. The applicant was released without a definite return appointment date. The applicant subsequently quit his job with the employer in late 1982 or early 1983."

As amended, the sixth paragraph of the ALJ's Findings of Fact and Conclusions of Law is affirmed and reiterated as if set forth herein.

The seventh through twelfth paragraphs of the ALJ's Findings of Fact and Conclusions of Law are affirmed and reiterated as if set forth herein.

The thirteenth, fourteenth, and fifteenth paragraphs of the ALJ's Findings of Fact and Conclusions of Law are deleted and the following substituted therefor:

"Based on the record, including the applicant's credible testimony regarding ongoing medical and psychological problems and his consistent medical history, the applicant has sustained functional permanent partial disability as follows: five percent compared to disability to the body as a whole because of neck problems; twenty percent loss compared to loss of each arm at the shoulder for bilateral shoulder problems; two percent compared to disability to the body as a whole because of non surgical back problems; and five percent compared to the disability to the body as a whole for psychological problems.

"Regarding the applicant's neck problems, while Dr. Zondag rated disability at ten percent compared to disability to the body as a whole for the neck problems, treating chiropractor Hurtgen rated disability at only three percent. Further, although Dr. Zondag noted arthritis shown on an MRI, his colleague, Dr. Dexter, found the MRI unremarkable and opined the applicant's problems were from musculoskeletal neck pain. Under these circumstances, and given the authority under Wis. Stat. 102.18 (1)(d), a five percent rating is most appropriate.

"Regarding the applicant's bilateral shoulder problems, the applicant testified credibly that he has had shoulder problems from the time of the injury. Indeed, the record documents arm pain as far back as 1982. See report of IME Lorenzo, exhibit 3, page 2; and physical therapy notes for April 26, 1982, exhibit F. The considerable loss of motion noted by Dr. Zondag and in the December 1995 functional capacity evaluation is consistent with a twenty percent rating at both shoulders under Wis. Admin. Code DWD 80.32 (7). Moreover, the report of the employer's independent medical examiner, Dr. Lorenzo, discusses primarily the applicant's cervical condition and does not appear to rule out disability at the shoulders.

"Regarding the applicant's psychological disability, the five percent rating given by Dr. Zondag is well- supported. The record documents loss of brain tissue, as well as the loss of cognitive, intellectual or mental functioning. While Dr. Caillier admits that the applicant's test scores are lower than expected, he believed it was because of underlying anxiety or depression was affecting the applicant's concentration. As explained above, however, Dr. Caillier's opinion is rejected as incredible in light of the applicant's serious head injury.

"In sum, then, the applicant has sustained a functional permanent partial disability calculated as follows: for 20 percent compared to the loss of use of the arm at the left shoulder, 100 weeks; for 20 percent compared to the loss of the use of the arm at the right shoulder, 100 weeks; for 12 percent compared to permanent total disability from the combined neck, back and psychological problems, 96 weeks; (1) and for a multiple disability factor, 39.2 weeks. (2) In total, the applicant is entitled to 335.2 weeks of permanent partial disability at $70 per week (the statutory maximum for injuries incurred in 1981), or $23,464, all of which is accrued.

"The employer correctly asserted that it overpaid temporary disability by the amount of $30.64, as it should have paid $8,835.71 rather than $8,866.35. The respondent is thus entitled to a credit for the $30.64 overpayment, as well as for the $3,500 in permanent disability previously paid to the applicant. The total additional award hereunder is thus $19,933.36.

"The applicant approved a twenty percent attorney fee on the additional disability awarded under Wis. Stat. 102.26, or $3,986.67. The fee, together with the costs of $73.93, shall be deducted from the additional award to determine the amount payable to the applicant within thirty days, $15,872.76.

"No award for loss of earning capacity, the `vocational' component of permanent disability, may be made under these facts. Wisconsin Statutes 102.44 (6)(a) provides that disability based on loss of earning capacity may not be awarded if the time-of- injury employer returns the injured worker to work paying at least 85 percent of his pre-injury wage. That happened here when Dr. Kruse returned the applicant to work without restriction in 1982.

"However, an award may be reopened, and loss of earning capacity awarded if any of the following occur: (a) the time-of-injury employer terminates the injured workers employment, (b) the worker himself quits because his physical or mental limitations prevent him from continuing from working for the time of injury employer, or (c) a fifteen percent wage loss occurs. Wisconsin Statutes 102.44 (6)(b). The commission has held that this provision given provides discretion to deal with loss of earning capacity as a result of a separation from employment occurring after an injured worker returns to work, even if no award has actually been made. The commission has traditionally declined to exercise that discretion when the separation resulting from a discharge was for misconduct amounting to a refusal of work, or when the separation is caused by a quit unrelated to the work injury. 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); Merrill M. Kummer v. Industrial Air Products, WC claim no. 92019275 (LIRC, June 30, 1995); and Kurt D. Koltz v. Kolbe & Kolbe Millwork Company, Inc., WC claim no. 88027739 (LIRC, February 14, 1991).

"In this case, the applicant was not discharged by the time-of-injury employer, Tom & Charles Connell. Rather, he quit. It is true he quit because he thought he could not perform the work within his self-imposed limitations. However, he also admitted the employer accommodated those restrictions. Moreover, the medical record does not support the finding that the applicant could not continue to work for the employer because of his physical restrictions. In fact, Dr. Kruse's notes from August and November 1982 suggests the opposite.

"The applicant did have a significant wage loss for several years after quitting Tom & Charles Connell. But he has not provided medical evidence establishing that the wage loss was due to actual restrictions from the work injury. The work restrictions the applicant was given in 1995 or 1996 cannot be applied retroactively to justify his decision to quit in 1982 in the absence of a contemporaneous medical opinion. In sum, no award may be made for loss of earning capacity, and that part of his claim must be dismissed.

"Of the claimed outstanding treatment expenses (as itemized within applicant's exhibit J which is incorporated herein by reference), only one, the Midelfort Clinic bill for $3,193 was reasonable and necessary to cure and relieve the effects of the applicant's work injuries. The respondent is liable for the payment of this bill. The other documented bill, out-of-pocket chiropractic treatment expense, is for treatment beyond the maximum statutory `choices of practitioner' for which the respondents are not liable.

"The applicant may sustain increased functional permanent disability from the work injury, and may require further treatment to cure and relieve the effects of the injury. Consequently, jurisdiction is reserved to allow future claims for temporary disability, permanent partial disability on a functional basis, and additional medical treatment expense. However, the applicant's claim for loss of earning capacity has been finally decided under these findings."

The ALJ's Interlocutory Order is deleted and the second and third paragraphs of the commission's Interlocutory Order set out below is substituted therefor.

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

INTERLOCUTORY ORDER

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

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

(1) To the applicant, Tom Housel, Fifteen thousand eight hundred seventy-two dollars and seventy-six cents ($15,872.76) for disability compensation.

(2) To the applicant's attorney, Curtiss N. Lien, the sum of Three thousand nine hundred eighty-six dollars and sixty-seven cents ($3,986.67) in fees and Seventy-three dollars and ninety-three cents ($73.93) in costs.

(3) To Midelfort Clinic, Three thousand one hundred ninety- three dollars ($3,193) in medical treatment expense.

The application for loss of earning capacity benefits is dismissed. Jurisdiction is reserved for further orders and awards, consistent with this decision, as may be warranted.

Dated and mailed: January 30, 1998
houseto . wrr : 101 : 5  ND 5.23

David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the ALJ who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The commission was particularly interested in the testimony concerning the applicant's decision to quit his job with the employer.

The ALJ stated that she believed the applicant, while he suffered a serious injury, was not assertive and did not necessary take the proper steps to best document his claim or create a record. She had the impression that the applicant had a good relationship with the owners of the employers, and would not have wanted to cause trouble for them by remaining on a job he could not perform. She also explained that she did not believe the applicant would have left his relatively high-paying job with the employer if he had not been disabled from performing it.

The applicant testified simply that he was not comfortable with heavy work. As discussed above, his treating doctor had released him to return to work with the employer in 1982, without restrictions. Instead, the applicant formulated his own work restrictions, and the employer accommodated those self-imposed restrictions upon the applicant's return to work. The commission acknowledges that the applicant may have felt he was not able to perform satisfactorily, or that he simply did not wish to continue the lighter, accommodated duties. Nonetheless, the commission cannot conclude that the applicant has established that he ended the employment relationship because his physical restrictions prevented him from continuing to work for the employer, as required to maintain a claim for loss of earning capacity under Wis. Stat. 102.44 (6).

cc:
ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

ATTORNEY MICHAEL D STOTLER
BREN NYBERG & THOMPSON


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Footnotes:

(1)( Back ) This is calculated on an 800-week base after deducting the 200 weeks of scheduled disability pursuant to Wis. Admin. Code DWD 80.50.

(2)( Back ) Under Wis. Stat. 102.53, the multiple injury factor is 20% for additional permanent disability of equal or lesser amounts. In this case, the factor is calculated based on the 100-week award for the right arm and the 96-week unscheduled disability.