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


DALE A RICE, Applicant

STEVENSON TRENDSETTERS, Employer

SECURA INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994000359


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 February 26, 1999
riceda.wsd : 101 : 3  ND 5.29

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant sustained a conceded work injury on December 15, 1993, for which the employer has paid temporary disability to a healing plateau on July 7, 1995. The ALJ also found that the applicant had sustained certain amounts of functional permanent disability. At issue is the extent of the permanent disability on a vocational basis.

The injury involved a chemical burn to the applicant's foot, which has affected both scheduled and unscheduled parts of his body. In addition, because of residual pain from the injury, the applicant takes pain medications, including methadone. The ALJ awarded permanent and total disability.

The employer and insurer (collectively, the respondent) appeal. The respondent asserts that the applicant's doctor failed to distinguish the effect of the restrictions for the scheduled body parts from the effect of the restrictions for the unscheduled body parts. Such apportionment is required under a recent court of appeals decision, Langhus v. LIRC, 206 Wis. 2d 494 (Ct. App., 1996). There, the court held that an injured worker must show that an ascertainable portion of his or her permanent and total disability is attributable to an unscheduled injury. Id., at 206 Wis. 3d 506. In so doing, the court of appeals recognized that vocational permanent disability (i.e. an award based on an impairment of earning capacity rather than solely on the body's ability to function) is limited to injuries affecting unscheduled body parts (the trunk or head); as to injuries affecting scheduled body parts (the arms and legs), the Wis. Stat. 102.52 schedule is the exclusive source of a permanent disability. Id., at 206 Wis. 2d 506-06.

Like most cases involving an award for vocational permanent disability, or loss of earning capacity, the first questions are (a) which doctor set the most credible restrictions and (b) which vocational expert gave the most credible vocational opinion based thereon. A sub-question involves the issue briefed by the parties here, which is whether the loss of earning capacity rating reflects restrictions affecting unscheduled parts of the body.

Treating doctor Fitzhum limits the applicant to four hours per day in less than sedentary work. Of course, he admitted at the very first hearing on causation in this case that he overestimated permanent partial disability. On the other hand, his current restrictions are based on Ms. Beld's functional capacity evaluation.

The employer's independent medical examiner, Allen E. Kagen M.D., gives two sets of restrictions after the applicant reached a healing plateau (Exhibits 1 and 8). In both, he opines the applicant may do light work (less than 20 pounds lifting) which indicates a greater capacity than estimated by Dr. Fitzhum. In the first set of restrictions, while noting the restrictions were permanent, IME Kagen opined the applicant could only do part-time work, initially. In the second set, IME Kagen did not set any restrictions on the length of time the applicant would work in a day. However, he does not explain why he changed his mind.

The vocational experts, to the extent their reports coincide on the facts, are consistent. Both agree that the applicant is permanently and totally disabled on an odd-lot basis under Dr. Fitzhum's restrictions. Applicant's expert Riley opines the applicant would be permanently and totally disabled on an odd-lot basis under IME Kagen's initial restriction to part-time light duty; Mr. Riley gives no opinion on Dr. Kagen's subsequent apparent opinion that the applicant would work light duty full-time. Respondent's expert McReynolds estimates a 50-60 percent loss of earning capacity on Dr. Kagen's second set of restrictions apparently allowing for full-time work; Mr. McReynolds does not consider Dr. Kagen's initial restrictions to part-time work. Mr. McReynolds also separated out the leg restrictions from Dr. Kagen's second set of restrictions, and after doing so comes up with a maximum 48 percent loss of earning capacity.

On this record, and after consulting the presiding ALJ concerning the credibility and demeanor of the witnesses, the commission credits the restrictions of Dr. Fitzhum. His restrictions are supported by Ms. Beld's evaluation. In addition, given the pain medication the applicant must take, a restriction to part-time work is reasonable. The commission also notes that Dr. Kagen did not explain why he now believes the applicant can work full time.

The commission acknowledges that Dr. Kagen, unlike Dr. Fitzhum, attempted in some degree to separate out the unscheduled aspects of the restrictions (light duty, no repetitive back motion) from the scheduled aspects (light duty, no repetitive left ankle motion or left foot weight-bearing.) In many cases, this distinction is critical because under Langhus the commission must rate loss of earning capacity by segregating the restrictions for the scheduled aspects of the injury from the restrictions for the unscheduled aspects of the injury. Permanent vocational disability then is based only on the restrictions due to the unscheduled aspects of the injury, the scheduled aspects of the injury having been compensated in an award under the Wis. Stat. 102.52 schedule.

In this case, however, the fact that Dr. Fitzhum did not separate the effects of the disability to the foot from the disability to the back does not mean the applicant is not permanently and totally disabled on an odd-lot basis. At the hearing, Dr. Fitzhum testified the applicant could not work due to his back condition. He also testified the applicant's problems affect the central nervous system. Dr. Fitzhum also testified the applicant takes pain medications with side effects of sedation, nausea and dizziness. These medicines, whether taken for the foot, the back or both, affect the applicant's body as a whole. In other words, this is not a case where a work incident causes discrete, separable disabilities to the back and an extremity.

Because the vocational experts agree that, given Dr. Fitzhum's restrictions, the applicant is permanently and totally disabled, the commission affirms the ALJ's decision.

cc: Attorney David A Hudec
Hudec Law Offices SC

Attorney Charles M Soule
Schoone Fortune Leuck Kelley & Pitts SC


Appealed to Circuit Court.  Affirmed November 29, 1999.   Appealed to Court of Appeals.  Affirmed September 13, 2000 sub nom. Secura Ins. and Stevenson's Trendsetters v. LIRC and Rice,  2000 WI App_, _ Wis.2d _, _ N.W. 2d _ .

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