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


GARY E GILSON, Applicant

KIMBERLY CLARK INTEGRATED SERVICES, Employer

KIMBERLY CLARK, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92008336


An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations 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 decision of the administrative law judge is affirmed.

Dated and mailed December 23, 1994
ND 5.39  5.23

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The administrative law judge dismissed the applicant's claim for loss of earning capacity without prejudice as being premature, noting that the applicant had only recently started a home-based business and had not yet applied for vocational rehabilitation benefits from the DVR . Both parties have submitted petitions for review of the administrative law judge's decision.

In its petition, the self-insured employer notes that both sides were prepared to go to hearing on the issue of loss of earning capacity. The employer argues that the applicant decided not to seek vocational retraining before the hearing, and should be bound by that decision. The employer also argues that the applicant in effect quit or refused work with the employer by his use of a controlled substance while off work because of his work injury. This work refusal, according to the employer, bars his claim for loss of earning capacity. For his part, the applicant argues that he should not have to be assessed by DVR before having his claim for loss of earning capacity heard, and that requiring him to seek DVR assessment is contrary to the law.

However, as the administrative law judge points out, the supreme court has held that "the ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages." Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278 (1972). The supreme court specifically rejected the argument that "an injured workman may not be coerced into taking rehabilitation under threat of a penalty of reduced compensation benefits." Transamerica, at 54 Wis. 2d 279, 281.

After reviewing the facts in this case, the commission concludes that further training may be warranted in this case, and that the applicant should seek the services of DVR before receiving an award for loss of earning capacity. On this point, the commission notes that while the employer's vocational expert mentioned the applicant's failure to go to DVR, neither vocational expert opined whether or how retraining would affect his earning capacity. The commission concludes that the administrative law judge exercised his discretion appropriately in this case by withholding a decision on loss of earning capacity until the applicant sought the services of DVR.

This leaves the question of the effect of the applicant's discharge for marijuana use on his loss of earning capacity claim. The commission by no means condones the applicant's use of marijuana, an illegal substance, in October 1992. On the other hand, the applicant was neither on active duty as a truck driver nor performing any other work for the employer at the time. Nor was he likely to have been returned to active duty in the near future. Dr. Alt had recently opined that he would probably never return to truck driving and certainly would not before June of 1993.

In prior cases, the commission has denied workers' claims for loss of earning capacity because the workers were fired with cause from re-employment paying at least 85 percent of his or her pre-injury wages. In this case, however, the applicant was never returned to work in employment paying at least 85 percent of his pre-injury wage. The commission cannot say for certain if he ever would have been, especially since Dr. Alt opined he would not return to truck driving. Further, the permanent restrictions of Dr. Ots (and to a lesser extent Dr. Anderson) suggest that it was by no means certain the applicant could return to truck driving.

The employer characterizes the applicant's marijuana use as a quit, so that the applicant in effect voluntarily refused work paying 85 percent of his pre-injury wage. Again, however, there is no proof he would have ever actually returned to work at 85 percent of his pay, so the commission cannot conclude he refused such work. The employer responds by offering testimony that all its injured workers have returned to work. However, the commission reads sec. 102.44 (6), Stats., to require a definite offer, and the record does not indicate that such an offer was made.

cc: ATTORNEY WILLIAM B KULKOSKI
OLSON KULKOSKI GALLOWAY & VESELY SC

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TETTAERT & BEISENSTEIN LTD


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