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


THOMAS HUITFELDT, Applicant

JAMES CAPE & SONS CO, Employer

WAUSAU UNDERWRITERS INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94066876


The administrative law judge issued her findings of fact and interlocutory order in this case on November 7, 1995. The record was closed on October 24, 1995, following a hearing on August 21, 1995. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage at the statutory maximum for 1990.

The applicant alleges an injury in about November 1990. In issue at the hearing was whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether injury arose out of the applicant's employment. Also at issue were the nature and extent of disability, liability for medical expenses, and the applicant's eligibility for vocational rehabilitation benefits under secs. 102.43 (5), Stats.

After the hearing, though, the respondent apparently conceded a compensable injury on or about November 1990, and permanent partial disability for this injury at two percent compared to disability to the body at the whole. The issues before the commission, then, are the nature and extent of disability beyond that conceded, liability for medical expenses, and the applicant's eligibility for vocational rehabilitation benefits.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside her findings of fact and interlocutory order, and substitutes the following therefore:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work history and medical treatment.

The applicant, who was born in 1940, worked in road construction until 1990. He was originally a laborer, but last worked operating a concrete slip paver. Although a concrete slip paver has helpers, the applicant testified he was expected to lift between 10 to 100 pounds. As is common in the road construction business, he worked 10-15 hour days. He made almost $20.00 per hour, with another $5.00 in benefits.

The earliest medical records indicate that the applicant first sought treatment about his back complaints from Dr. Plooster in November 1989. Dr. Plooster noted a long history of back pain. He described recent symptoms as sharp to achy lower back pain, with radiation to the hips, increasing after 10 hours of work. No specific injury was noted, but x-rays showed mild compression deformities of the lower thoracic spine. The applicant was given exercises. He was discharged from Dr. Plooster's care about two weeks later.

The applicant again returned to road construction work for the 1990 season. After the annual seasonal layoff, he tried to work in July 1991, but could no longer handle the hours because of back pain. He returned to Dr. Plooster in August 1991, telling him he was interested in changing jobs if he could be retrained.

Dr. Plooster took more x-rays and these showed compression fractures at T11 and T12. The fracture at T11 was described as new, and the T12 as worsened, when compared to the 1989 x-rays. The doctor ordered some tests, and ruled out cancer.

In a follow-up visit in September 1991, Dr. Plooster described the applicant's condition as arthritic complaints. He recommended the applicant change jobs.

The follow-up visits continued until November 1991. At that time, Dr. Plooster completed a form stating the applicant could not return to work (presumably as a road construction worker). The doctor released him to return as needed.

At some point in 1992, the applicant pursued a claim for social security benefits, not realizing he had a worker's compensation claim. The applicant returned to Dr. Plooster in February 1992, apparently to get refills of his medication. The doctor described his condition as an arthritic spine condition, which was moderately symptomatic with the hunting and fishing the applicant has done "since he retired." The applicant was told to use his medication sparingly, to continue with modified activity, and return when needed.

The applicant had similar visits dealing with prescription refills in August 1992 and April 1993. He experienced an increase in symptoms with moving his (or his new wife's) household in August 1993, and these concerns led the doctor to do more testing. EMG tests and a lumbar MRI came back fairly normal. The MRI showed the compression fracture at T12 and signs of degenerative disc disease at L4 and L5. The EMG showed right peroneal neuropathy of unknown origin. Dr. Plooster noted moderate improvement in December 1993.

On December 30, 1993, Dr. Plooster issued a functional capacity report. The report set out permanent restrictions against lifting over 20 pounds, and certain other restrictions as well. The report also released the applicant to work full-time, within those restrictions.

The applicant next treated with Dr. Plooster in June 1994. The doctor noted he remained the same: stiff, sore and limited in his ability to bend, lift or engage in work. The doctor noted the applicant had been hospitalized for depression. He was released to return as needed.

2. Expert medical opinion.

On August 10, 1994, Dr. Plooster reported that, to a reasonable degree of medical certainty, the applicant's lifetime exposure to work involving repetitive bending, twisting, stooping, lifting, pushing and pulling heavy objects has materially contributed to the progression of his degenerative spine condition.

Dr. Plooster also stated he thought the applicant was severely physically impaired from useful work. He prepared a return to work slip which allowed him to work at sedentary work, lifting 10 pounds.

The employer's independent medical examiner is James Huffer, M.D. Dr. Huffer examined the applicant on March 23, 1995. He issued a report to the insurer outlining his expert medical opinion on March 27, 1995.

Dr. Huffer opined that the applicant had an underlying back condition which he believed was developmental in nature and not caused by work. However, Dr. Huffer did believe that the underlying condition is affected by work, but in the nature of an overuse syndrome rather than an actual disease or cumulative trauma. When the "overuse" stops, so do the symptoms.

Dr. Huffer states that "although the basic problem is not occupational in origin, the temporary symptoms at work are occupational in origin, but the work exposure has not led to progressive disability disorder."

Dr. Huffer did think that permanent restrictions were necessary for "this overuse syndrome. Specifically, he limited the applicant to occasional, close-to-body lifting of up to 50 pounds. The doctor evidently meant the fifty pound lift could be done only very occasionally, as also he permitted a lift of 20 pounds only two or three times per day. He allowed the applicant to lift 10 pounds up to three times per hour. He also permitted the applicant to bend and twist only a few times per hour.

Based on these restrictions, which in turn are based on the overuse syndrome that the doctor categorized in his report as an occupational disease, Dr. Huffer opined that the applicant has sustained permanent partial disability at 2 percent compared to permanent disability to the body as a whole.

3. DVR retraining.

Meanwhile, the applicant applied to the division of vocational rehabilitation (DVR) of the department of health and social services for vocational services on January 24, 1994. He saw a DVR counselor on April 19, 1994. The counselor has certified him for a six-month training program as a drug and alcohol counselor. The applicant in fact started classes in August 1995.

Apparently because the counselor was unaware it was a workers compensation case, the DVR counselor did not follow the normal practice of contacting the employer about work. Later on, after learning the applicant had a workers compensation case, the counselor decided not to contact the employer as it did not seem reasonable to expect the applicant to get back into road construction.

Nor did DVR contact other employers or help the applicant do a work search, as is again the normal DVR practice in workers compensation cases. The counselor decided against trying a job search because, in his judgment, a job search would have turned up only unskilled service work, given Dr. Plooster's restrictions (1).

In short, the DVR counselor testified he provided retraining services (instead of pursuing job placement services) because he believed it would be the best approach to return the applicant to his pre-injury earning capacity. The employer's vocational expert seems to agree, and suggests the retraining will restore the applicant to his prior earning capacity. The applicant's expert is less hopeful, and thinks that even with retraining the applicant will have a 30-35 percent loss of earning capacity, although this is significantly less than the 60-70 percent loss he estimated in the absence of training.

4. Causation, extent of disability and medical expenses.

The employer asserts in its briefs to the commission that it has now conceded and paid permanent partial disability at 2 percent compared to disability to the body as a whole. Based on the expert medical opinion in this case, the commission concludes that the applicant has in fact sustained disability caused by an appreciable period of work place exposure that was at least a materially contributory causative factor in the onset or progression of the applicant's disabling condition. In other words, the commission is satisfied beyond legitimate doubt that the applicant sustained an injury while performing services growing out of and incidental to his employment with the employer, and which arose out of that employment.

The next issue is the nature and extent of disability from the work injury. This issue is governed in this case by two concessions spelled out in the applicant's brief to the commission. First, the applicant admits that he did not request temporary disability, except in connection with vocational rehabilitation under secs. 102.43 (5) and 102.61, Stats. Second, the applicant admits that, as Dr. Plooster never rated permanent partial disability (although he did opine the applicant was permanently disabled), the applicant has no claim for "functional" permanent partial disability over the two percent rated by Dr. Huffer.

On this basis, then, the commission awards no temporary disability under sec. 102.43 (1) to (4), Stats., for disability during a "healing period." The commission also concludes that the applicant has sustained a "functional" permanent partial disability as a result of the work injury at two percent compared to disability to the body as a whole. The applicant is thus entitled to twenty weeks of compensation at the rate of $125 per week (the statutory maximum for injuries occurring in 1990), for a total of $2,500, all of which has accrued. Information from the department indicates that there is no social security offset on this payment.

Throughout the proceedings, the applicant has requested permanent partial disability based on loss of earning capacity. (2) However, the commission may not award "vocational" permanent partial disability based on loss of earning capacity at this time. The applicant was undertaking vocational retraining at the time of the hearing. As both vocational experts state, and the administrative code provides, vocational training is significant in assessing loss of earning capacity. Although both experts offer estimates as to what the loss will be if the applicant completes the retraining, the commission can only speculate as to whether the applicant will in fact complete the retraining at this point. Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 280 (1972).

Consequently, the commission leaves its order interlocutory on permanent disability for loss of earning capacity. The applicant may apply for further hearing on that issue when the vocational retraining has ended. At this point, the commission does not adopt the opinion of either vocational expert, nor does it adopt the work restrictions assessed by either medical expert in this case.

The next issue is medical treatment expenses. These are set out on a "Statement of Treatment Expense" form WC-3 introduced as Exhibit D. The commission first notes that the respondent does not object to the payment of the expenses in its brief to the commission. After reviewing the medical reports, the applicant's testimony and the itemized billings attached to the statement of expense, the commission concludes that all of the treatment expense itemized therein is reasonable and necessary.

Specifically, the applicant incurred the following expenses: (a) from Dr. Plooster, the sum of $686, of which the applicant paid $58.94, Union Local 139 paid $615.60, and 11.46 is unpaid; (b) from St. Claire Hospital, the sum of $1,181.81, of which Union Local 139 paid $1,063.63 and the remainder of which is unpaid; (c) from Hess Memorial Hospital, $479.50, of which Union Local 139 paid $411.30 and $68.20 remains unpaid; (d) from Gundersen Clinic, the sum of $247.60, of which Union Local 139 paid $222.76 and $24.84 remains unpaid; (e) from Dean Medical Center, the sum of $861, all of which remains unpaid; (f) from Madison Radiologists, the sum of $100, all of which was paid by Union Local 139; (g) from Walgreen Pharmacy, the sum of $91.90, of which $9.19 was paid by the applicant, and $82.71 was paid by Union Local 139; and (h) in medical mileage, $632.12, all of which was paid by the applicant.

5. Vocational rehabilitation training.

The final issue is whether temporary disability should be paid while the applicant undergoes retraining through the DVR. The employer argues benefits should not be paid, as DVR retraining was undertaken long after the applicant could have begun it. The applicant counters that he actually was certified before the August 10, 1994 plateau date given by Dr. Plooster, and that he began his classes as soon as possible after the certification by DVR.

Both sides cite sec. 102.61 (1)(a), 1991 Stats., (3) which provides that, in order to be eligible for travel and maintenance while receiving retraining, an injured worker:

"must undertake the course of instruction within 60 days from the date when the employe has sufficiently recovered from the injury to permit doing so, or as soon thereafter as the office or agency having charge of the instruction shall provide opportunity for the rehabilitation."

The respondent's position is that retraining was being discussed already in 1991, and that Dr. Plooster had implicitly released the applicant to seek retraining when he said the applicant should find other work. The respondent emphasizes that the applicant would not have had to reach a healing plateau; he only needs to have been recovered enough to undertake retraining. Thus, the applicant's delay in seeking DVR rehabilitative services between 1991 and January 1994 should bar his claim for temporary disability under sec. 012.43 (5), Stats.

The applicant's attorney asserts that the alternative "as soon thereafter as the ... opportunity for the rehabilitation [is provided]" clause of sec. 102.61 (1)(a), Stats., supersedes the "60 day from [recovery]" clause in this case. Here, the applicant apparently did begin his retraining as soon as he could after he was certified. So, the applicant asserts, one of the alternative requirements of sec. 102.61 (1)(a), Stats., is technically complied with.

The question the applicant's attorney leaves unanswered is: "How soon does the applicant have to seek DVR certification?" The applicant's attorney would assert this question need not be answered. The employer's attorney says this should be done within 60 days after the applicant is able.

The commission is not certain it would deny every application for benefits under secs. 102.43 (5) and 102.61, Stats., if DVR services are not sought within 60 days. In this case, however, by waiting more than 2 years after a doctor recommended he seek other work, the applicant waited too long. In short, sec. 102.61 (1)(a), Stats., requires that an injured worker act relatively quickly to seek DVR services after he is able to do so, and the applicant has not complied in this case.

Further, the record in this case indicates that during 1991 to 1994, the applicant considered himself retired. He did not intend to return to work for the employer; he was not actively seeking other work; and he evidently indicated to Dr. Plooster in February 1992 that he had retired. As the DVR counselor indicated at the hearing, the first step in workers compensation cases is to contact the former employer and conduct a job search. This is because the goal of rehabilitative services is to return an injured worker to work and restore his earning capacity and potential. Section Ind. 80.49 (1), Wis. Adm. Code. By remaining out of the work force instead of pursuing retraining, the applicant thwarted this goal to some extent.

In sum, the applicant's delay in seeking DVR rehabilitative services precludes an award under sec. 102.43 (5) and 102.61, Stats.

6. Final matters.

The applicant agreed to the protection of an attorney fee payable at twenty percent of the amount of any award that was in dispute. Although the respondent has now conceded permanent partial disability in the amount awarded under this order, the issue was still in dispute at the time of the hearing. (4) No costs were established. Thus, the respondents shall pay, within 30 days, $2,000 to the applicant for disability and $500 to his attorney for fees.

This order is left interlocutory with respect to future medical expenses and to allow an award of permanent disability for loss of earning capacity.

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, affirmed.

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

(1) To the applicant, Thomas Huitfeldt, the sum of Two thousand dollars and no cents ($2,000.00) for permanent partial disability;

(2) To the applicant's attorney, Helen L. Schott, the sum of Five hundred dollars ($500.00) in attorney fees;

(3) To Dr. Michael Plooster, the sum of Eleven dollars and forty-six cents ($11.46) for medical expenses;

(4) To St. Clare Hospital, the sum of One hundred eighteen dollars and eighteen cents ($118.18) for medical expenses;

(5) To Hess Memorial Hospital, the sum of Sixty-eight dollars and twenty cents ($68.20) for medical expenses;

(6) To Gundersen Clinic, the sum of Twenty-four dollars and eighty-four cents ($24.84) for medical expenses;

(7) To Dean Medical Center, the sum of Eight hundred and sixty-one dollars ($861.00) for medical expenses;

(8) To Operating Engineers Local Union 139, the sum of Two thousand four hundred ninety-six dollars ($2,496.00) as reimbursement of medical expenses; and

(9) To the applicant, the sum of Six hundred thirty-two dollars and twelve cents ($632.12) as reimbursement for mileage and Sixty-eight dollars and thirteen cents ($68.13) as reimbursement for medical expenditures.

Jurisdiction is retained to issue such further orders as may be warranted consistent with this decision.

Dated and mailed January 6, 1996
bauermi.wrr : 101 : 1 ND 5.39

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. supra, 54 Wis. 2d at 283-84. However, the administrative law judge stated that very little was made of the "DVR delay" issue at hearing. She explained that the more hotly contested issues were whether the DVR counselor abused his discretion by failing to contact the employer or do a job search, and whether another employer might be involved. Certainly, the record bears this out. Other than indicating that the applicant considered himself "retired" for some period after the work injury, the administrative law judge understandably had no credibility or demeanor impression about the issue that was the focus of the appeal to the commission.

cc: ATTORNEY RAYMOND G CLAUSEN
STILP & COTTON

ATTORNEY HELEN L SCHOTT
STAFFORD & NEAL SC


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Footnotes:

(1)( Back ) In making such determinations, the DVR counselor testified he usually goes with the applicant's doctor, on the assumption he will know the applicant better.

(2)( Back ) See pages 3-4 and 74 of the Transcript from August 21, 1995.

(3)( Back ) This has recently been renumbered without substantive change to sec. 102.61 (1r), Stats., but the older version of the law applies in this case. Sections 102.03 (4) and 102.61 (1m)(b), 1993 Stats. All citations in this decision are to the "old" law.

(4)( Back ) August 21, 1995 Transcript, page 4.