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


COLECTA R MIRELES, Applicant

AMETEK LAMB ELECTRIC, Employer

NATIONAL UNION FIRE INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91027213


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 April 25, 1997
mirelco.wsd : 175 : 5 ND 5.20

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in dismissing her claim for lost earning capacity. The applicant asserts that the administrative law judge erred in determining that under Wis. Stat. 102.44(6)(b), the law mentions restrictions but that these are intended to be restrictions from the same unscheduled injury and not a later scheduled work injury. The evidence indicated the applicant suffered an unscheduled back injury on April 22, 1991. The applicant subsequently returned to work with restrictions, was put on light work, putting tapes on wires used in building motors which required a good deal of repeated hand movements. The applicant subsequently developed bilateral carpal tunnel syndrome and was assessed permanent disability at the right wrist with an injury date of October 18, 1993.

Subsequently the applicant received permanent restrictions of no lifting with the right hand over two pounds and no repetitive work with the hands and the employer indicated it had no work available within her restrictions. The applicant was subsequently terminated after her sick leave exceeded one year as noted by the administrative law judge. The applicant contends that the statute is very clear that if an applicant is terminated or is prevented from continuing his or her employment within 12 years, a loss of earning capacity must be taken into account. Under Wis. Stat. 102.44(6)(b), if the employment is terminated by the employer or by the employe because his or her physical or mental limitations prevent him or her from continuing such employment then loss of earning capacity must be taken into account. The commission agrees with the administrative law judge that although this section of law mentions restrictions, these are intended to be from the same work injury not a later scheduled work injury. In this case, Ms. Clay, who worked in the employer's personnel department testified that the applicant was no longer working and was terminated because of her prior restrictions to her hand. The evidence indicated that the applicant would still have been able to work at light work except for her subsequent bilateral carpal tunnel injury in October 1993. The applicant could have continued to work within her restrictions due to her unscheduled back injury. Therefore the commission does not find that the applicant was terminated due to her unscheduled injury.

The applicant contends that under the holding in Langhus v LIRC, 557 N.W.2d 450 (Wis. Appl. 1966) an applicant can recover for a combination of scheduled and unscheduled injuries but must prove the loss of earning capacity which is attributable only to the unscheduled injury. However, in the Langhus case the applicant suffered a knee injury with permanent restrictions and subsequently developed back problems due to the alteration of her gait due to the work injury. Therefore in the Langhus case the applicant's subsequent back problems arose out of the original knee injury. However, in the current case the applicant's unscheduled back injury did not cause her bilateral carpal tunnel syndrome. The applicant returned to work for the employer and suffered a separate scheduled injury to her hands as a result of the repetitive work that she did, putting tape on wires used in building the motors.

The applicant asserts that the language in Wis. Stat. 102.44(6)(b) does not indicate any limitation on the type of physical limitation which can lead to her loss of employment and subsequent claim for loss of earning capacity. However, the commission agrees with the employer that a logical interpretation of the language in Wis. Stat. 102.44(6)(b) is that the limitations must stem from an unscheduled injury. In this case, the evidence indicates that the applicant subsequently terminated her employment due to her scheduled injury, and resulting limitations to her hand and not due to her unscheduled back injury.

In addition, the applicant claims she suffered permanent total disability based on both the unscheduled and scheduled restrictions. The applicant states that her subsequent injuries can be traced back to and have some causal connection with the prior work injury and therefore since the entire disability flows out of an unscheduled injury the applicant should be entitled to permanent total disability. However, the applicant returned to work for the employer and performed a separate function for an extended period of time and suffered a separate injury in the nature of bilateral carpal tunnel syndrome with a separate injury date of October 18, 1993. The commission does not find that the applicant's subsequent carpal tunnel syndrome is causally connected to her back injury. Therefore, based on the medical evidence in the record and based on the testimony including the testimony from Ms. Clay, and based on the evidence that the applicant suffered a separate carpal tunnel injury and could have continued to work except for the restrictions to her hands as a result of that injury and that her termination was not due to any physical limitation related to her prior unscheduled back injury, the evidence was sufficient to raise a legitimate doubt that the applicant was entitled to any loss of earning capacity under Wis. Stat. 102.44(6)(b).

cc: ATTORNEY JOHN A BECKER
BECKER FRENCH & DE MATTHEW

ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC


Appealed to Circuit Court, which reversed. The Circuit Court decision was reversed and the LIRC decision reinstated by Court of Appeals. [Court of Appeals decision]. The Court of Appeals decision was then reversed by the Supreme Court, July 12, 2000, and the matter was remanded to LIRC. [Supreme Court decision]

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