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


MICHAEL J STANEK, Applicant

ASHLEY FURNITURE INDUSTRIES, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92052362


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 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 modification:

Delete the second and third paragraphs that begin on page 6 of the ALJ's Decision, and substitute the following therefor:

"The respondent contended that the applicant should not be entitled to retraining benefits because it offered work that paid more than 85 percent of his pre-injury wage but the applicant refused to accept the work. This argument is rejected.

"First, the so-called '85 percent rule' applies to claims for permanent disability based loss of earning capacity under sec. 102.44 (6), Stats. It does not apply explicitly to benefits during vocational rehabilitation under secs. 102.43(5) and 102.61, Stats. That is not to say offers of employment or reemployment are not relevant to claims for benefits during vocational rehabilitation or retraining. DVR's normal practice in workers compensation cases is to determine whether an injured worker is able to find employment at close to his pre-injury wage before certifying the worker for retraining. Attempting to return the injured worker to the labor market before retraining is consistent with the goal of restoring earning capacity and potential in workers compensation cases rather than increasing it. Section Ind 80.49 (1), Wis. Admin. Code.

"In this case, however, the applicant was indefinitely laid off by the employer and had conducted a search for work in the general labor market before he was certified for vocational retraining by DVR. In addition, he actually began his retraining courses before the employer offered him re-employment at a wage lower than his pre-injury wage. The applicant was justified in refusing the offer under these circumstances.

"Further, the DVR's determination as to whether an injured worker is entitled to vocational rehabilitation is entitled to great deference. Under Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505, 510 (1957), DVR's determination may be disregarded only in cases of abuse of administrative power or where highly material facts are concealed or misrepresented. See also: Dane County Hospital and Home v. LIRC, 125 Wis. 2d 308 (Ct. App., 1985). Nothing of that sort happened in this case. While the training program for which the applicant is certified exceeds 40 weeks, its purpose is to restore the applicant's pre-injury earning capacity, not to improve upon it. Given the facts of this case and the supreme court's holding in Massachusetts Bonding, the commission is not persuaded that the employer's post-certification job offer makes the applicant ineligible for benefits while receiving vocational retraining under secs. 102.43 (5) and 102.61, Stats."

ORDER

The findings of fact, conclusions of law and interlocutory order of the administrative law judge, as modified, are affirmed.

Dated and mailed March 31, 1995
ND 5.23 5.39

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the respondent stated simply that the administrative law judge erred in finding that the applicant sustained permanent partial disability on a functional basis, and in awarding benefits associated with vocational retraining. However, while the respondent requested a briefing schedule, the commission never received a brief from the respondent. The applicant's attorney states that he never received a copy of a brief from the respondent either, so the commission concludes that the respondent has not prepared a brief and does not intend to submit one. Consequently, there are no arguments of counsel to address in this memorandum opinion. Nevertheless, after a thorough review of the record, the commission cannot agree with the respondent and so affirms the ALJ's Findings and Order, as modified.

cc: ATTORNEY JOHN W WELTER
SCHRAGE MARJALA KAISER WELTER AND LEBARRON

ATTORNEY STEVE A COTTON
STILP AND WELLS


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