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


TERRY MANKA, Applicant

BILL WITTMAN BUILDERS, Employer

AMERICAN FAMILY MUTUAL INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 940522401


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. In the third paragraph of the administrative law judge's Findings of Fact insert a period after the word "disability" and delete the remainder of that paragraph.

2. Delete paragraph 21 of the administrative law judge's Findings of Fact and insert therefor:

"The administrative law judge concludes that 17 percent disability as compared to permanent total disability is the appropriate rating. The 10 percent assessed by the doctors for the cervical fusion and discectomy and the later fusion is below the minimum set forth in Wis. Admin. Code 80.32 (11). Both doctors assess an additional 2 percent as a result of the continuing problems at the worker's graft host site. Thus, the applicant sustained a total of 17 percent disability as compared to permanent total disability as a result of the surgical interventions and subsequent problems with the graft host site."

3. In paragraph 22 add to the end of paragraph 22 the following:

"The applicant is entitled to an additional five percent disability as compared to permanent total disability resulting in total additional benefits due of $7,900. Applicant's attorney is entitled to a 20 percent fee to be deducted from that amount. The evidence submitted at hearing does not enable the fact finder to determine the exact date this additional five percent permanent partial disability began or will begin to accrue. Accordingly, the matter will be left interlocutory for determination of that fact."

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are amended to conform with the foregoing, and as amended are affirmed. The matter is remanded to the worker's compensation division for determination of the exact date the 120 weeks of permanent partial disability awarded by the administrative law judge actually accrued, or will accrue. As of the accrual date, the unaccrued compensation of five percent permanent partial disability (less attorney fee) additionally awarded by the commission should begin to be paid to the applicant and his attorney on the appropriate monthly basis.

Jurisdiction is reserved with regard to the accrual date and payment schedule as noted in the findings.

Dated and mailed: November 25, 1997  [Note re: date]
mankate.wpr : 132 : 5 ND 5.24

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission has modified the administrative law judge's order to award an additional 5 percent disability as required under the administrative code. While the administrative law judge believed the doctors correctly interpreted the code the commission does not agree that they did so. Wisconsin Administrative Code DWD 80.32 (11), by its terms, by the note attached to that section and by the examples provided make it clear that five percent is the minimum rating for a fusion or removal of disc material. Further, when both occur at one time the minimum rating is 10 percent.

The commission has considered the applicant's argument for additional TTD. However, after considering the record as a whole the commission agrees with the administrative law judge's conclusion that applicant was not in a healing period after September of 1996. However, the applicant obviously had continued problems subsequent to the end of his healing period which were not unforeseen and which did not constitute a renewed period of temporary disability. Yet, while such is the commission's finding, the applicant's treatment with Dr. Park and Dr. Paul in 1997 was nonetheless due to the ongoing effects of the work injury and the commission cannot find that such treatment was unreasonable or unnecessary because the administrative law judge and the commission ultimately conclude that the applicant did not enter another healing period. Finally, the commission finds that the administrative law judge appropriately admitted respondents' exhibit 1 into the record.

NOTE: Based on the Department Form WC-13 received by the commission in post-hearing correspondence, it would appear that 120 weeks of permanent partial disability in this matter will not have accrued until the first week of February 1998. If the insurance carrier in fact finished paying out an amount equivalent to 120 weeks of compensation on or about July 15, 1997, as alleged in correspondence to the commission, then such payment constituted a gratuitous prepayment of some permanent partial disability. Such prepayment would not change the actual date on which the 120 weeks of compensation accrued. Of course, all this is based on the accuracy of the WC-13 submitted to the commission in post-hearing correspondence, rather than on any evidence submitted at the hearing. That is why the commission has remanded the matter for clarification of the exact date of accrual.

cc:
ATTORNEY JOHN B EDMONDSON
EDMONDSON LAW OFFICE

ATTORNEY JAN M SCHROEDER
PETERSON JOHNSON & MURRAY SC


[Note]  The original commission decision was dated November 25, 1997. The decision as it is reproduced here incorporates amendments that were made to that decision, in subsequent commission orders issued on December 11, 1997 and December 23, 1997. [Back]


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