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


AURORA SISON, Applicant

SISON MEDICAL CLINIC, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91024823


An administrative law judge (ALJ) for the Worker's 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 findings and order of the administrative law judge are affirmed.

Dated and mailed June 26, 1996
sisonau.wsd : 101 : 1  ND 5.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ awarded permanent disability for loss of earning capacity at 35 percent. The applicant appeals, contending she is permanently and totally disabled.

In its brief, the employer points out that the ALJ did not expressly state which doctor's restrictions he found most credible. Dr. Schneider restricted the applicant from work as an anesthesiologist; Dr. McCabe set no work restrictions. While the ALJ may not have expressly adopted Dr. Schneider's restrictions, he did expressly conclude that the applicant would not likely be able to return to work as an anesthesiologist, and awarded loss of earning capacity at 35 percent (the level set by vocational expert Schutz on Dr. Schneider's restrictions). After reviewing the record, the commission concludes that the ALJ credited Dr. Schneider's restriction against work as an anesthesiologist.

The commission agrees that Dr. Schneider's restriction against work as an anesthesiologist is more credible. Dr. McCabe's opinion to the contrary is evidently based on his belief the applicant has no physiological basis for her pain, despite her two fusion surgeries. Nor is the commission inclined to place much weight on the applicant's failure to undergo the testing which Dr. McCabe himself described as unimportant and left to the applicant's discretion. Finally, the ALJ found credible her testimony about continuing pain, physical limitations and disability, and the commission accepts that credibility assessment.

As the employer points out, the next inquiry is whether the applicant has established, based on Dr. Schneider's restriction against further work as an anesthesiologist, a prima facie case of odd lot employability. Or stated another way, has the applicant shown that, based on her work injury, age, education, and capacity, she is unable to secure continuing or gainful employment? (1) If the applicant has made her prima facie case, the burden then shifts to the employer to show regular and continuous employment is available. (2)

The commission cannot conclude that the applicant has established a prima facie case of odd unemployability. A prima facie case would have to be based on Mr. Riley's expert opinion that because the applicant can no longer perform anesthesiology, she is automatically unable to secure other gainful employment, regardless of her other physical limitations. Mr. Riley has essentially opined that continuing and gainful work is unavailable to the applicant because her skills are not transferable and because she is unqualified for other skilled work.

However, the commission cannot accept Mr. Riley's contention that the applicant's skills are so specialized that, if she cannot work as an anesthesiologist, she cannot work at all. This injured worker is a licensed medical doctor. While it may be impractical for her to undergo retraining for another medical specialty because of her age, she still has substantial medical knowledge and basic medical skills which are transferable into other areas as discussed by Mr. Schutz.

Since the applicant has not established a prima facie case of odd-lot unemployability, the ALJ properly based his award on the report of Mr. Schutz and the ALJ's own reasoned analysis of the factors set out in sec. 80.34, Wis. Adm. Code. Having considered the matter independently, the commission adopts both the ALJ's analysis and his award.

cc: ATTORNEY JOHN D NEAL
STAFFORD & NEAL S C

ATTORNEY MICHAEL J HICKS
HILLS & HICKS


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Footnotes:

(1)( Back ) Balczweski v. DILHR, 76 Wis. 2d 487, 495 (1977).

(2)( Back ) Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 252 (Ct. App., 1989).