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


FREDERICK R SHULT, Applicant

JOHNS WHITEWASHING, Employer

RURAL MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92058420


The administrative law judge issued his findings of fact and interlocutory order in this case on December 20, 1994, following a hearing on November 9, 1994. 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, an average weekly wage of $284.03, and a September 18, 1992 compensable injury. The respondent conceded and paid temporary total disability through September 17, 1993, as well as permanent partial disability at 10 percent compared to disability to the body as a whole.

The issues are nature and extent of disability beyond that conceded. Liability for certain medical expenses is also at issue.

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 his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on January 4, 1962. His job for the employer was to prepare barns for whitewashing. He was paid $6.50 per hour. The applicant had worked for the employer for two months when he suffered a conceded injury at work.

The injury occurred on September 18, 1992, when a door in a ceiling of a structure the applicant was working on fell on his head, knocking him to the ground. This has left him with pain in his head, neck and arms. The incident itself caused a fractured vertebra, a protruded or herniated cervical disc. Shortly after the injury, Kimball S. Fuiks, M.D., performed an anterior cervical corpectomy removing the body of the C7 vertebra and the discs at C6-7 and C7-T1. An autogenous bone graft was inserted and a syntheses titanium implant was placed against the applicant's anterior vertebra wall to provide support.

Dr. Fuiks continued to monitor the applicant on a regular basis. He prepared a functional capacity evaluation on October 7, 1993. According to the evaluation, the applicant could not lift more than 20 pounds on a frequent basis, could never crawl or climb, could stand and walk 3 hours per day, and sit 6 hours per day, but could work a full eight hour day. However, Dr. Fuiks also stated that the applicant had not yet plateaued as of that date.

In a note dated January 6, 1994, Dr. Fuiks stated that if the applicant's condition had not improved by the date of a follow-up appointment in two months, he would consider the applicant to have reached a healing plateau and would rate permanent disability. Dr. Fuiks' note from the next visit on February 23 stated that the applicant had done quite well post-operatively, and that his condition had stabilized.

Dr. Fuiks prepared a practitioner's report dated March 1, 1994, following the visit on February 23. The doctor rated the applicant's permanent partial disability on a functional basis at 24 percent compared to disability to the body as a whole. However, he also stated that he could not say when the applicant would be able to return to work with only permanent restrictions. On the other hand, Dr. Fuiks' January 6 and February 23 office notes indicate that the applicant had reached a healing plateau by February 23, 1994. Given Dr. Fuiks' rating of permanent partial disability on March 1, 1994, the commission infers his opinion to be that the applicant had reached a healing plateau as of the date the doctor had last seen the applicant, February 23, 1994.

As noted above, the employer conceded a functional permanent partial disability at 10 percent compared to disability to the body as a whole. This concession was based on the estimate of its independent medical examiner, David S. Haskell, M.D., who also opined that the applicant had plateaued as of the date of his report, September 17, 1993. Dr. Haskell imposed permanent work restrictions against repetitive activity, and overhead pushing and pulling.

Having examined the file, the commission concludes that treating Dr. Fuiks offers a more convincing medical opinion. Stated simply, his estimate of permanent partial disability and his work restrictions seem more realistic in view of the seriousness of the work injury and surgery that the applicant underwent. Consequently, the commission finds that the applicant reached a healing plateau on February 23, 1994, with permanent partial disability on a functional basis at 24 percent compared to disability to the body as a whole.

The next issue is the extent of permanent partial disability for loss of earning capacity. After the injury, the applicant started school in January 1994, but now works full time for a hospital, transporting patients. He currently earns $7.90 per hour, which is actually higher than his $6.50 hourly wage for the employer at the time his injury. The applicant's current wage with the hospital is the highest he has ever earned, although from June 1991 to June 1992 he earned $7.85 per hour with "excellent benefits" as a milk hauler. See applicant's Exhibit B, page 2; respondent's Exhibit 3, page 4.

The commission determines loss of earning capacity in cases of unscheduled disability by taking into account the effect of an injured worker's permanent physical and mental limitations on his present and potential earnings. The commission must also consider various factors in sec. Ind 80.34, Wis. Admin. Code, including age, education, training, previous work experience and earnings, present earnings, and willingness to find new work or receive new training. Further, the commission is not bound by the estimates of vocational experts offered by the parties. Rather, such estimates are to be considered with all other evidence in deciding an injured worker's loss of earning capacity. Section 102.17 (7)(a), Stats.

Since the commission is rating loss of earning capacity, not simply wage loss, a loss of earning capacity award may be made even if there are no actual lost wages. In some cases, an applicant's general ability to work is impaired by a work injury even if he can still find some work at his preinjury wage. Thus, an unskilled heavy laborer whose ability to do heavy work is eliminated by a work injury may still suffer permanent disability due to impaired earning capacity even if he is able to find a comparably-paying job doing light duty unskilled work.

One exception is set out in the "85 percent rule" under sec. 102.44 (6)(a), Stats. That section provides that if an applicant returns to the same employer for whom he worked when he was injured at a wage within 85 percent of his preinjury wage, no permanent disability for loss of earning capacity may be awarded.

In this case, of course, the applicant returned to work with a different employer. Independent medical examiner Haskell admits the applicant is permanently restricted from doing repetitive work or overhead pushing and pulling. Treating Dr. Fuiks also set restrictions (25-pound lifting limit, occasional bending and squatting, and no climbing or crawling) in October 1993 before the applicant reached a healing plateau. Either set of restrictions would seem to rule out the applicant's old job preparing barns for whitewashing. There is no evidence the employer ever offered work to the applicant after the injury. Thus, sec. 102.44 (6)(a), Stats., does not apply, and the commission shall determine the loss of earning capacity for this unscheduled injury.

The applicant's expert, Ronald Gehrig, rated a 50 to 60 percent loss of earning capacity if the applicant did not receive additional retraining. This estimate was based on Dr. Fuiks' restrictions. He opined that without retraining, the applicant would only be able to find part-time jobs at minimum wage to $5 per hour. Mr. Gehrig noted that although the applicant was "doing well vocationally" before the injury, he could not return to any type of former occupation and had no transferable skills.

The employer's vocational expert, Robert Harlow, estimated a 10-20 percent loss of earning capacity based on Dr. Fuiks' restrictions, if considered permanent. Mr. Harlow opined that under Dr. Fuiks' restrictions, the applicant could still do light assembly, cashier work, cleaning and custodial work, some groundskeeping and retail sales. These jobs paid starting wages at $4.50 to $5.50 per hour, and $6.05 to $6.55 per hour with experience.

The commission believes that Mr. Gehrig's report overstates the applicant's loss of earning capacity since he assumes the applicant could only find part-time jobs. Neither doctor had restricted the applicant to part-time work and he in fact was working full-time at the time of the hearing. Further, Mr. Gehrig's report offers little analysis to support the assumption that the applicant would be restricted to work paying $5 per hour.

Given the range of pay in the occupations set out in Mr. Harlow's report, the commission concludes that a loss of earning capacity equals 25 percent of permanent total disability, and awards permanent partial disability in that amount. The applicant's functional permanent partial disability is merged into this rating.

The commission therefore finds that the applicant sustained an additional period of temporary total disability from September 17, 1993 to February 23, 1994. This results in additional 22 weeks and 3 days of temporary total disability compensated at the weekly rate of $189.35 (two-thirds of the conceded average weekly wage of $284.03), for a total of $4,260.38.

The applicant has also sustained a permanent partial disability of 25 percent compared to disability to the body as a whole, accruing as of February 23, 1994. The applicant is thus entitled to 250 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1992, $144 per week. This results in a total award for permanent partial disability of $36,000, of which $14,400 has been conceded and paid, leaving a total additional award for permanent partial disability of $21,600.

As of August 9, 1995, 76 weeks of permanent partial disability (amounting to $10,944) have accrued; 174 weeks (amounting to $25,056) remain unaccrued. Consequently, no permanent partial disability for weeks beyond those already conceded has yet accrued. However, all of the $4,260.38 in additional temporary total disability has accrued. Thus, the amount of the award accrued as of August 9, 1995 under this order is $15,204.38.

The applicant approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional disability benefits awarded under this decision. The future value of the total fee is thus $5,172.08 {20 percent of ($4,260.38 plus $21,600)}. Of that amount only the portion of the fee attributable to temporary total disability ($852.08) has accrued as of August 9, 1995. As a result, the unaccrued portion of the fee ($4,320) is subject to an interest credit of $410.60. Subtracting the interest credit from the future value of the total fee yields a present value for the total fee of $4,761.48. This shall be deducted from the applicant's award and paid within 30 days.

No amount is immediately due the applicant. This is because the total award accrued of as of August 9, 1995 ($15,204.38) is less than the sum of the accrued portion of the attorney fee ($852.08) and the permanent partial disability already paid ($14,400). The resulting deficit of $47.70 shall be subtracted from the amount remaining to be paid to the applicant as of September 9, 1995.

The amount remaining to be paid to the applicant it accrues beginning on September 9, 1995 is $20,688.30. This determined by starting with the unaccrued portion of the award ($25,056), subtracting the unaccrued attorney fee without deducting the interest credit ($4,320), and subtracting the deficit calculated above ($47.70). This amount shall be paid to the applicant in monthly installments beginning September 9, 1995.

The last issue is medical expenses. These amount to $4,103.07 for treatment at Mercy Hospital. Dr. Fuiks' medical records support the August 17, 1993 cervical MRI (Exhibit A, note for August 17), the October 21, 1993 shoulder arthrogram (Exhibit D, note for November 2) and the December 21, 1993 myelogram and cervical CT (Exhibit D notes for December 20 and January 6), as reasonable and necessary treatment that the applicant underwent in good faith for shoulder and arm symptoms related to the accident. However, Dr. Fuiks' notes do not mention the last two items, totaling $141.55, and the commission denies compensation for these disputed items.

In view of the fact the applicant may have further periods of disability and additional medical expense, jurisdiction is retained.

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, are affirmed.

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

(1) To the applicant, Frederick R. Shult, the sum of Twelve thousand six hundred thirty dollars and fifty cents ($12,630.50).

(2) To the applicant's attorney, Mark Sweet, the sum of Seven thousand five hundred five dollars and seventy-seven cents ($7,505.77) as attorney fees.

(3) To Mercy Hospital in Janesville, Wisconsin, the sum of Three thousand nine hundred sixty-one dollars and fifty-two cents ($3,961.52).

On September 9, 1995, and continuing on the ninth of each month thereafter, the employer and insurer shall pay the applicant the sum of Six hundred twenty-four dollars ($624) per month until the sum of all payments under this paragraph equals Twenty thousand forty-four dollars and eighty cents ($20,044.80).

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

Dated and mailed July 31, 1995
ND 5.20  5.23

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness. However, the commission does not modify the applicant's award on the basis of his testimony, or because of the credibility of any witness who testified at the hearing. Rather, the commission, after considering all of the evidence, including the applicant's credible testimony, determined a lower award for loss of earning capacity was appropriate for the reasons set out above.

cc: ATTORNEY MARK W ANDREWS
WINNER WIXSON & PERNITZ

ATTORNEY MARK S SWEET
NEUBERGER LORENZ GRIGGS & SWEET


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