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


DANIEL J WILKINSON, Applicant

ROUNDYS, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91012579


This case arises on appeal of the January 13, 1995 decision of Administrative Law Judge Mary Jo Schiavoni, following a hearing on October 26, 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 before Administrative Law Judge Schiavoni, the respondent conceded jurisdictional facts, and a February 10, 1991 compensable injury. The respondent conceded and paid temporary disability benefits for various periods from the date of injury through November 1, 1992, as more clearly detailed in Administrative Law Judge Schiavoni's decision. A least some of these benefits were paid pursuant to an order issued by Administrative Law Judge John E. Clarke on April 28, 1992. However, the respondent now alleges that payment of temporary disability after November 4, 1991 was made under mistake of fact, and claims reimbursement. In addition, the respondent conceded permanent partial disability at eight percent compared to permanent total disability, and paid $10,823 in permanent partial disability benefits.

The issues at the hearing included the average weekly wage rate, and the nature and extent of disability beyond that conceded.

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 order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

a. Injury and treatment.

The applicant was born on August 9, 1949. He began working for the employer, a merchandise warehouser, in August 1989 as a floor selector. This job involved moving various cases of items to pallets for delivery to retail stores. He lifted some of the cases by hand and some mechanically. His base pay rate was $7.15 per hour at the time of the injury.

The applicant suffered a conceded work injury on February 10, 1991. The injury occurred when he was lifting some boxes that weighed 70 to 80 pounds. He experienced pain in his neck and had to stop working.

His initial medical treatment was on February 11, 1991. The office note for that date was prepared by a physician's assistant and initialed by Diane K. Meyer, M.D. See Exhibit C, page 2. The note describes the greatest pain at the C7 spinous process, and in the right paraspinous region and right trapezius. The applicant denied acute numbness, tingling or weakness in the hands or arm, but did note occasional numbness in the left arm before the injury. The numbness, however, had resolved prior to the injury.

The applicant continued to treat with Dr. Meyer, and was also seen by Jonathan Morey, M.D. He referred the applicant to a neurologist, R. Graebner, M.D. Dr. Graebner's note for March 5, 1991, describes the work injury, causing pain in the neck and back. He notes these symptoms "are in the setting of some pre- existing symptoms of the left upper extremity including some pain in the shoulder girdle and paresthesias radiating into the arm. He ordered more imaging reports, and he stated his impression of spondylosis at C5-6, and more extensively at C6-7, and maybe some disc herniation.

The MRI scan ordered by Dr. Graebner was done on March 6, 1991. The MRI scan was interpreted as showing a disc herniation at C6-7. Exhibits B, page 13; C, page 9; and D, page 9.

Dr. Graebner took the applicant off work on April 9, 1991. After some attempt at conservative treatment, Dr. Graebner referred the applicant to Dr. Wojciech Bodganowicz, M.D. Dr. Bodganowicz saw the applicant on April 15, 1991, and noted pain in the base of the neck radiating into the left shoulder and eventually the left arm. Eventually the applicant began to experience pain in the right arm and shoulder as well. Dr. Bodganowicz noted that the MRI showed a spondylotic ridge, and what might be a soft disc component. Exhibit B, page 18.

On July 18, 1991, Dr. Bodganowicz noted a limited range of motion and possible C7 radiculopathy on the left. He ordered a myelogram and CAT scan, which he stated was definitely positive for a disc herniation, although the interpreting radiologist suggested the alternative possibility of a spur. Exhibit E, pages 9 and 20.

Dr. Bodganowicz diagnosed C6-7 work-related herniated disc. On July 24, 1991, he performed an anterior discectomy at C6-7. The cervical discectomy included the removal of a bone spur as well as "a very large free fragment of soft disc." Upon removal of the latter, "the nerve root was immediately decompressed." Exhibit E, pages 3 and 14.

The applicant initially had some pain relief, but by August 22, 1991, his neck pain returned. Another MRI ordered by Dr. Bodganowicz showed disc abnormality at C6-7, which was reported as either a recurrent herniation or scar tissue. Exhibit D, pages 3 and 9. Further surgery was suggested, but the applicant was unwilling to undergo it because of the risk it could actually increase his pain.

In September and October 1991, the applicant continued to complain to Dr. Bodganowicz of pain, particularly in his neck and shoulders, radiating into his left arm. Eventually, in January 1992, Dr. Bodganowicz referred the applicant back to Dr. Graebner for another opinion. Dr. Graebner diagnosed possible left shoulder derangement, and referred the applicant to Ronald Rudy, M.D. On February 26, 1992, Dr. Rudy noted that the applicant denied any trauma to the shoulder at the time of the work injury, and could not find a definite pathology in the area. He ordered tests. These came back negative and, by March 25, 1992, the applicant was reporting only neck pain. Five days later, he complained to Dr. Bodganowicz of neck and shoulder complaints. See respondent's exhibit 5.

Meanwhile, on January 28, 1992, Dr. Bodganowicz wrote a functional capacity evaluation. He reported that in an eight hour day, the applicant could sit for four hours, stand for two and walk for one. He allowed the applicant to occasionally lift up to 20 pounds. He prohibited bending and crawling, and permitted only occasional squatting, climbing and reaching. He concluded by noting the applicant was still in pain. Significantly, he did not describe these as permanent restrictions. Finally, on April 27, 1992, Dr. Bodganowicz noted that the applicant had a lot of neck and arm pain after hunting for three hours. He recommended the applicant return to work for only four hours per day with a 20-pound lifting limit. Exhibit 5.

In December 1992, the employer offered the applicant full- time work as an auditor. These duties included walking around and checking pallets packed by other workers to make certain they were done correctly. This was light duty and included no lifting. The applicant did this work for a short period in December 1992 or January 1993. However, after four or five hours his neck became extremely painful. After two and one-half days, the pain progressed to the point that he felt he could not continue to do the work.

The applicant then went to the division of vocational rehabilitation (DVR) in the department of health and social services. His initial visit was in January 1993. He was given a situation assessment in a light duty clerical position doing photocopying in June 1993. Although the applicant received high marks for his work effort, he did not complete the assessment because of pain. Thereafter, the DVR case worker opined that the applicant would not receive regular placement services because his pain was too severe to allow him to work competitively, on either a full-time or part-time basis. He recommended referral to a home-based enterprise program, which in the applicant's case included woodworking training.

At the hearing, the applicant testified he has constant pain in the base of his neck and upper shoulders, but that it is not always severe. At other times, the pain is severe, and if he "pushes it" the pain radiates into his arms and causes numbness. He estimates two days of numbness per week, and it causes him difficulty in lifting and grasping.

A typical day involves doing minimal household chores, and short trips to a coffee shop, his mothers' home or a local pub. However, he often gets neck pain, and has to lie down to lessen it. He also testified that his activities have included turkey hunting by gun and deer hunting by bow and gun. He hunts on his father's farm. He got a deer in 1991-92 and left it for his father to bring in. He now mostly just watches the deer. He testified he only has to go 50 to 200 yards from the farmhouse to be able to hunt.

b. Expert medical opinion.

Both sides offered expert medical opinions on the issues of causation and nature and extent of disability.

Exhibit J was prepared by Dr. Agre on January 29, 1993. The medical history he took is pretty much consistent with those of the earlier doctors, with one significant difference. Dr. Agre reports that the applicant denied shoulder, neck or arm pain prior to the work injury.

Dr. Agre diagnosed: C6-7 disc herniation status post discectomy and spur removal, chronic neck and bilateral arm pain, and chronic left rotator cuff tendonitis and bicipital tendonitis. With regard to causation he writes:

"It does appear most probable that Mr. Wilkinson's neck and bilateral arm pain are related to his work-related injury as described in the history. He denies having had such problems before his injury and has continued to have problems since then. It is noted that he did have spurring which does appear most probable, to be related to his pre-injury status. However the injury appears to have aggravated an underlying condition beyond that which would normally occur and therefore his ongoing problems are related to his work-related condition."

Dr. Agre went on to opine that the applicant could work part-time, four hours per day, but could work his way up to full time work at the rate of an hour per day every two weeks. He stated the applicant could only sit, stand or walk for an hour at a time, but placed no limit on the total number of hours in any of those activities. He allowed occasional lifting and carrying of up to 20 pounds. He also allowed frequent bending, squatting, climbing and overhead lifting with the right arm; but only occasional climbing and lifting overhead with the left arm. He prohibited the applicant from using his head or neck in a static position, and from frequent flexing or rotating the head and neck. Finally, Dr. Agre opined the applicant had reached an end of healing and was left with a permanent partial disability of 10 percent at the neck, for decreased range of motion, decreased strength, and ongoing pain.

However, Dr. Agre supplemented his report on December 29, 1993, following another appointment at the request of the applicant's attorney. Exhibit L. Dr. Agre noted that since his last report, the applicant went to DVR, and that his evaluation was terminated because the DVR evaluator noted the applicant was in severe pain. He also noted the applicant's statement that he was not getting any better. The applicant told Dr. Agre that he sleeps fairly well, awakens refreshed, but that his pain increases throughout the day when doing basically any activity. The applicant also told Dr. Agre that, after two to five hours of any activity, he must lie down for a couple of hours to relieve his pain, and is now in bed one-half of the time.

Dr. Agre reiterated his diagnosis of chronic neck, arm and shoulder pain. He noted some depression and added a diagnosis of chronic pain syndrome. He stated that he did not think further evaluation or treatment would help the applicant. On the other hand, he opined that participating in a pain management program could assist the applicant in becoming as functional and independent as possible despite ongoing pain. The program would include the issue of a return to gainful employment. Significantly, however, Dr. Agre did not change the restrictions he set in his earlier report.

Exhibits N and O contain practitioner's reports issued by Drs. Moray, Bodganowicz, and Graebner before the applicant reached a healing plateau. Thus, they do not set out permanent restrictions. They therefore are not useful on the issue of loss of earning capacity which must be based on permanent restrictions.

The respondent submits reports from two independent medical examiners, George Berglund, M.D., and James Huffer, M.D. Dr. Berglund originally opined the applicant had a soft-tissue injury only and sustained no permanent disability. After the applicant underwent surgery, Dr. Berglund rated permanent partial disability at five percent compared to disability to the body as a whole. His opinion indicates that, while the applicant may have believed the surgery was made necessary by the work injury, it was not.

Dr. Huffer issued his report on November 4, 1992. Dr. Huffer concluded that the applicant had spurring at C6 before the work injury. He noted that, while the applicant did not remember it, he had reported some pre-injury symptoms to Dr. Graebner (1), indicating that the spurring was in fact present, although not yet disabling. Dr. Huffer then went on to opine that the work injury of February 10, 1991, aggravated the pre-existing condition and made it symptomatic.

Dr. Huffer went on to say that there was no way to be certain when the disc herniation occurred. However, he stated it was reasonable to conclude that the disc herniation was the result of the aggravation, acceleration and precipitation beyond normal progression of the pre-existing condition, and therefore, was work-related.

He went on to opine that surgery was appropriate, and did provide temporary relief. He could not say for certain what caused the symptoms to recur, but he thought it was scar tissue. He therefore concluded the recurrent neck pain symptoms, too, were work-related. However, Dr. Huffer opined that the applicant's "frozen shoulder" condition did not appear to be work related, but was the result of an unrelated mild impingement syndrome.

Dr. Huffer went on to rate permanent partial disability at 8 percent to the body as a whole for the work injury, specifically for the surgery and continuing pain. He fixed the healing plateau at November 11, 1991, the day the applicant ceased physical therapy following the surgery. He concluded the applicant was able to work, and attempted to separate out the restrictions that would be imposed for the nonwork-related frozen shoulder. As a result, he set a 35 pound lifting restriction, with limits on extending the cervical spine, and on extreme lateral bends and rotation of the cervical spine. He also stated that some of the restrictions imposed by Dr. Agre were based on the frozen shoulder problem, and so not really work-related.

c. Vocational experts.

The parties also offer reports from vocational experts to establish the extent of vocational disability.

The applicant's experts, Roger Pettee and Ross Lynch, issued a joint report dated February 22, 1993, following an interview on January 11, 1993. Exhibit K. This report is based on the functional capacity evaluation prepared by Dr. Agre on January 29, 1993. Assuming the restrictions set out therein, Messrs. Pettee and Lynch stated that the applicant had the residual capacity to work as a billing machine operator, a cashier-clerk, a cashier-checker, a courier, a duplicating machine operator, a messenger, a proof machine operator, a retail salesperson, and a teller. He also opined the applicant could do select work as a file clerk, a general office clerk, an order clerk, and motor vehicle dispatcher. These jobs paid an average of $6.20 per hour, or $275 per week in 1993 dollars. Comparing that to the applicant's pre-injury wage of $500 per week (2), yields a loss of earning capacity of 45 percent.

Messrs. Pettee and Lynch offered a second opinion dated January 13, 1994. Exhibit M. This report is based on the additional factors including: the applicant's failed attempt to return to work in January and June 1993; the DVR evaluator's opinion that the applicant was fit only for home-based employment services; and Dr. Agre's supplemental report of December 29, 1993. Based on these factors, the Messrs. Pettee and Lynch opined the applicant has incurred a total loss of earning capacity.

The employer submits the report of Gregory Wisniewski, dated April 18, 1994. Exhibit 2. He assessed loss of earning capacity based on the restrictions imposed by: Dr. Berglund in his December 16, 1991 IME report; Dr. Bodganowicz in his January 28, 1992 functional capacity report; Dr. Huffer in his November 4, 1992 IME report; and Dr. Agre in his January 29, 1993 functional capacity evaluation.

Based on the restrictions imposed by Dr. Agre, Mr. Wisniewski opined the applicant could work as a mail clerk, file clerk, messenger and machine operator. The entry level wages for these jobs paid $5.15 to $6.45 per hour, and $5.70 to $8.55 per hour. Based on the restrictions imposed by Dr. Huffer, Mr. Wisniewski opined the applicant could work as a quality control clerk, a parts clerk and a machine operator. The entry level for these jobs was $5.25 to $7.00 per hour, and $6.60 to $10.35 per hour with experience.

Mr. Wisniewski opined that the applicant's deconditioning after not working for 2 years was the true basis for the applicant's severe impairment to employment noted by the DVR evaluator. He also indicated that the employer told him that, if the applicant were still working, he would be making about $7.80 per hour now. He concluded the applicant had a 20 to 30 percent loss of earning capacity based on Dr. Agre's opinion and a 10 to 20 percent loss of earning capacity based on Dr. Huffer's opinion.

2. Discussion.

a. Generally.

The first issue is which expert medical opinion is most credible with respect to the nature and extent of disability, including work restrictions. The next question is the extent to which, given these functional restrictions, the applicant has suffered an impairment of earning capacity. Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d. 522, 528 (1976).

The applicant, of course, asserts he is permanently and totally disabled on a vocational basis. This issue turns on the applicability of the odd-lot rule. According to the supreme court, the odd-lot doctrine is primarily an evidentiary rule. Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977). The court of appeals summarized the Balczewski decision as stating that:

"Once the claimant prima facie proves 100 percent disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate `that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity.... If evidence of the degree of physical disability coupled with other factors `such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available."

Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989). Finally, Professor Larson has noted that in odd-lot cases "it is not unreasonable to place the burden of proof on [the employe] to establish the unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable effort to secure suitable employment." 1C Larson, Workmen's Compensation Law, sec. 57.61(d) (1993).

The court of appeals has recently emphasized in two unpublished opinions, though, that once the applicant has made his prima facie showing under Balczewski, the burden is on the employer to show that work is available for the applicant; merely saying the applicant is available for certain types of work is not enough. Stated another way, the commission may not assume that simply because a vocational expert opines that the applicant may do certain types of select work, that such positions are actually available. Cabral v. LIRC, court of appeals case no. 94-3309-FT, district I unpublished slip opinion at pages 10-11 (December 12, 1995); Morey v. LIRC, court of appeals case no. 95- 0673-FT, unpublished slip opinion at page 4 (December 21, 1995).

b. Whose restrictions to accept?

The employer argues that the commission should disregard Dr. Agre's restrictions. The respondent contends the restrictions are based in part on shoulder symptoms which were not work-related (even under Dr. Agre's opinion), and in part on bilateral arm pain which is a scheduled injury that may not be compensated in a loss of earning capacity award, citing sec. 102.52 (1), Stats., and sec. Ind 80.32 (7), Wis. Adm. Code.

With respect to this contention, Dr. Huffer stated that "some of the restrictions applied by the treating physician have to do with the left shoulder, and, in my opinion, this is not really work-related." Exhibit 3, page 12. The commission notes that Dr. Huffer does not assert that Dr. Agre's restrictions were based, even in part, on the bilateral arm pain.

Nor does the commission read Dr. Agre's January 29, 1993 report to assess work restrictions for the rotator cuff tendonitis, the bicipital tendonitis, or the bilateral arm pain. Although his opinion is not explicit on this point, he does rate permanent partial disability only for the neck, not these other conditions. The commission concludes the physical limitations are likewise limited to the cervical condition for which he rated permanent partial disability. Stated another way, since Dr. Agre opined that the applicant's only permanent disability was to his neck for post surgical pain and decreased range of motion and strength, the commission concludes he established permanent restrictions only for that disability.

Further, even if Dr. Huffer is correct in his opinion that Dr. Agre's report included work restrictions for the shoulder, the commission would credit Dr. Agre's restrictions. Dr. Huffer himself admits a certain causal connection between shoulder problems and the work injury in his report. Specifically, he noted that the applicant had bony spurring before the injury, that it caused symptoms (pain in his left arm and shoulder) noted by Dr. Graebner, and that the work injury aggravated this pre- existing condition and made it symptomatic. Yet Dr. Huffer then opines the applicant suffered no work-related injury to the left shoulder, and blames the applicant's problems on an unrelated impingement problem.

However, accepting Dr. Agre's January 29, 1993 restrictions does not inevitably lead to a finding of permanent and total disability. Indeed, the applicant's own vocational experts, Messrs. Pettee and Lynch, originally rated loss of earning capacity at 45 percent based on Dr. Agre's January 1993 restrictions. Dr. Agre never issued new restrictions in December 1993, but simply recorded the applicant's complaints, and his self-imposed limits on activity. To the extent the revised opinion of Messrs. Pettee and Lynch is based on change in the applicant's functional abilities the revised opinion must be discredited.

Moreover, when Messrs. Pettee and Lynch interviewed the applicant the first time on January 11, 1993, and issued their first report on February 22, 1993, he had already tried and quit the auditor work. Further, the applicant's training, schooling and work history would not have changed during the period between the two reports. Indeed, all that did happen was the unsuccessful termination of regular rehabilitative efforts by DVR. Since this, too, seems predicated on functional restrictions never imposed or verified by Dr. Agre, the commission cannot conclude this is a credible basis for the revised report of Messrs. Lynch and Pettee.

Thus, the commission disregards the revised report of Messrs. Lynch and Pettee and concludes that the applicant has failed to make a prima facie case that he is unable to secure any continuing and gainful employment. Even if the revised report does establish a prima facie case, however, it would be rebutted by the more credible report of Messrs. Lynch and Pettee concluding that the applicant sustained at most a 45 percent loss of earning capacity.

d. The 85 percent rule.

The last question is whether to deny loss of earning capacity altogether based on the applicant's failure to continue to work in the auditor position offered by the employer. This issue turns on sec. 102.44 (6), Stats., which provides in relevant part:

102.44 (6) (a) Where an injured employe claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15 percent.

(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15 percent or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

(g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employe without reasonable cause, the employe is considered to have returned to work with the earnings the employe would have received had it not been for the refusal.

The commission is satisfied that the applicant had good cause to refuse or discontinue the full time auditing job offered in December 1992. He testified that the job involved craning his neck, and that he was unable to do the job full time because of pain. This is supported by Dr. Meyer's office note for January 6, 1993, Exhibit I. The commission also notes that Dr. Agre had not yet issued his work tolerance/physical capacity report dated January 29, 1993, but when he did the doctor released the applicant to return only part-time at first and prohibited frequent flexing or rotation of his head and neck.

3. Award.

Turning to the calculation of the applicant's award, the first issue is the applicant's average weekly wage. In his application, the applicant reported the average weekly wage to be $288, which is reasonably close to the product of $7.15 per hour times 40 hours. In the first hearing on this matter, Administrative Law Judge Clarke found a conceded wage rate of $288. After examining the record, the commission sees no reason to depart from this stipulated amount. The applicant's average weekly wage rate is $288.

The next issue is the extent of temporary disability. Because the commission finds Dr. Agre's expert medical opinion more credible than Dr. Huffer's for the reasons outlined above, it awards temporary disability to the healing plateau date Dr. Agre fixed, January 11, 1993. In addition to the amounts already paid by the respondent for temporary total and temporary partial disability, then, the applicant is entitled to an additional period for temporary total disability from November 2, 1992 to January 11, 1993. This is a period of nine weeks and five days, payable at the weekly rate of $192.00 (two-thirds of the weekly wage rate of $288), for a total of $1,888.00.

The next issue is the extent of permanent partial disability, or his loss of earning capacity, based on Dr. Agre's work restrictions. Messrs. Lynch and Pettee, of course, rated this at 45 percent based on Dr. Agre's work restrictions. The commission notes that the figure is based on an assumption of pre-injury earnings, including overtime, of $500 per week. The assumed pre- injury weekly earnings of $500, of course, are substantially higher than the $288 stipulated average weekly wage rate. However, a vocational expert is not to be tied to the average weekly wage rate under sec. 102.11, Stats., when calculating actual lost wages, much less loss of earning capacity, for the purposes of sec. Ind 80.34, Wis. Adm. Code. In this case, Exhibit F supports the assumption of overtime earnings, and the commission is satisfied that the record supports a 45 percent loss of earning capacity.

By the same token, the failure of respondent's expert Wisniewski to consider overtime hours led the commission to conclude that the 20 to 30 percent loss of earning capacity range he gave is too low. Considering all of the factors under sec. Ind 80.34, Wis. Adm. Code, including his education, age, work history, the likelihood of retraining given the DVR report, and the applicant's significant physical restrictions, the commission concludes the applicant suffered a 45 percent loss of earning capacity, into which is merged his functional rating for permanent partial disability to the body as a whole assessed by Dr. Agre.

The applicant has therefore sustained a permanent partial disability of 45 percent compared to permanent total disability. He is thus entitled to 450 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1991, $137 per week. This results in a total award for permanent partial disability of $61,650, accruing as of January 11, 1993. As of February 4, 1996, 160 weeks permanent partial disability have accrued, amounting to $21,920; 290 weeks totaling $39,730 remains unaccrued.

The respondent has conceded 8 percent, or 80 weeks of permanent partial disability. However, it has only paid $10,823, or 79 weeks at $137, as of the date of the hearing.

In addition, the applicant received short-term disability benefits from United Wisconsin Insurance Company from April 10 to October 8, 1991, in the amount of $3,900. The record also indicates that the applicant received $10,931.39 in long term disability benefits from CNA Insurance Company for some period ending on December 5, 1994. Both non-industrial insurers are entitled to reimbursement for the amounts paid under sec. 102.30 (7), Stats.; the sum of $14,831.39 shall be deducted for that purpose from the applicant's award.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the 9.8333 weeks of temporary total and 370 weeks of permanent partial benefits awarded beyond those conceded, less the amount deducted from the applicant's award to reimburse the non-industrial insurers. The total fee is thus $7,549.32 {20 percent of ($1,888 plus $43,840 minus $14,831.39}. Due to the reimbursement of the non-industrial insurers, the fee is entirely attributable to the final 275.52 weeks of unaccrued permanent partial disability. It is thus subject to an interest credit of $1,366.94 which leaves a net attorney fee which reflects its present value of $6,182.38. This amount, together with the costs of $2,230.23, shall be deducted from the applicant's total award and paid within 30 days.

No amount is payable to the applicant within 30 days. The amount payable within 30 days is determined by starting with the additional temporary total disability benefits ($1,888), adding the 160 weeks of permanent partial disability benefits accrued as of February 4, 1996 ($21,920), subtracting the permanent partial disability already paid ($10,823), subtracting the amount reimbursed to the non-industrial insurers ($14,831.39), and subtracting the legal costs of $2,230.23. This leaves the negative sum of $4,076.62.

Of course, a substantial amount remains to be paid to the applicant as it accrues beginning on February 5, 1996. This amount is determined by starting with the 290 weeks of unaccrued permanent partial disability ($39,730), and subtracting the unaccrued attorney fee without deducting the interest credit ($7,549.32). The difference ($32,180.68) would ordinarily be paid to the applicant in monthly installments of $593.67 beginning March 4, 1996. In this case, however, the negative "accrued amount" of $4,076.62 caused by reimbursement of the non-industrial insurers must be dealt with, and it is subtracted from $32,180.68 to yield the sum of $28,104.06 to be paid to the applicant as it accrues.

Consistent with what the commission understands to be the department's normal practice in such cases, it orders one half of the applicant's normal monthly entitlement of $593.67 ($296.83) be paid to the applicant with the difference retained by the insurer to recoup the negative "accrued amount" of $4,076.62. Thus, for the first thirteen months beginning on March 4, 1996, the insurer shall pay the applicant $296.83 per month; in the fourteenth month (April 1997), it shall pay the applicant $375.84; and in the fifteenth month and thereafter it shall pay the applicant $593.67 until the sum of all the payments to the applicant equals $28,104.06. (3)

Because benefits the applicant receives may be subject to recalculation and reimbursement should he also receive social security benefits, this order is left interlocutory.

NOW THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The administrative law judge's Findings of Fact and Interlocutory Order is modified to conform to the foregoing and, as modified, is 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's attorney, Kent Carnell, the sum of Six thousand one hundred eighty-two dollars and thirty-eight cents ($6,182.38) as attorney fees and Two thousand two hundred thirty dollars and twenty-three cents ($2,230.23) in costs.

(2) To United Wisconsin Insurance Company, the sum of Three thousand nine hundred dollars and no cents ($3,900.00).

(3) To CNA Insurance Company, the sum of Ten thousand nine hundred thirty-one dollars and thirty-nine cents ($10,931.39).

On March 4, 1996, and continuing on the fourth day of the next twelve months beginning thereafter, the employer and the insurer shall pay the applicant the amount of Two hundred ninety- six dollars and eighty-three cents ($296.83) per month. On April 4, 1997, the employer and the insurer shall pay the applicant the amount of three hundred seventy five dollars and eighty four cents ($375.84). On May 4, 1997, and continuing on the fourth day of each month thereafter, the employer and the insurer shall pay the applicant Five hundred ninety-three dollars and sixty-seven cents ($593.67) per month until the total of payments to the applicant under this paragraph equals Twenty- eight thousand, one hundred four dollars and six cents ($28,104.06).

Jurisdiction is retained to issue such further orders as may be warranted.

Dated and mailed January 31, 1996
ND 5.23  5.31

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. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness and explained that he appeared to be truly in pain and guarded his neck even when he believed he was unobserved. She also explained that she believed he could not do the auditor job offered by the employer because it involved craning his neck, and that she believed his restrictions were severe enough to make him odd-lot. She informed the commission she strongly felt her decision was correct.

The commission agrees that the applicant established a significant physical impairment. However, after examining the record as a whole, the commission is not persuaded that Messrs. Pettee and Lynch provided a valid basis for changing their opinion concerning the extent of loss of earning capacity from 45 percent to 100 percent. Thus, the commission's modifications were not based on the credibility of the applicant's testimony about what he thought his restrictions should be, so much as the lack of expert medical support for the revised vocational opinion of Messrs. Lynch and Pettee.

Finally, the respondent objects to the consideration of Dr. Meyer's notes and a report she prepared for CNA Insurance Company (Exhibits H and I) as deficient under sec. 102.17 (1)(d), Stats. The applicant asserts that these documents were admitted on a showing of good cause under sec. Ind 80.22, Wis. Adm. Code, and that admission was not prejudicial to the respondent. However, the commission is not certain what the asserted "good cause" was. Nonetheless, the commission considered the documents to the extent set out above and, like Administrative Law Judge Schiavoni, did not give opinions expressed in them weight to the extent they did not comport with Dr. Agre's. The only significant finding which the commission made based on Dr. Meyer's notes was that those notes supported applicant's asserted good cause for failing to accept the full time work as offered by the employer.

cc: ATTORNEY RONALD S APLIN
PETERSON JOHNSON & MURRAY

ATTORNEY KENT I CARNELL
LAWTON & CATES SC


Appealed to Circuit Court. Affirmed October 18, 1996.

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Footnotes:

(1)( Back ) and Dr. Moray

(2)( Back ) This is considerably higher than the average weekly wage of $288 because it includes premium pay and overtime hours.

(3)( Back ) Footnote 3 originally read: "The additional $56,688 in compensation awarded under this order ($1,888 in additional temporary total disability and the $54,800 in total permanent partial disability) may be accounted for as follows: $10,823 was already paid by the insurer; $14,831.39 is reimbursed to the non-industrial insurers; $6,179.32 for the attorney fee (of which $5,340.31 is paid to the applicant's attorney and $839.01 is retained by the insurer as an interest credit); $2,230.23 is paid to the applicant's attorney as legal costs; and $22,624.06 is paid to the applicant in monthly installments as outlined above." The text of footnote 3 was subsequently corrected, by a letter from LIRC to the parties, to read as follows: The total $63,538 in compensation awarded under this order ($1,888 in additional temporary total disability and the $61,650 in total permanent partial disability) may be accounted for as follows: $10,823 was already paid by the insurer; $14,831.39 is reimbursed to the non-industrial insurers; $7,549.32 for the attorney fee (of which $6,182.38 is paid to the applicant's attorney and $1,366.94 is retained by the insurer as an interest credit); $2,230.23 is paid to the applicant's attorney as legal costs; and $28,104.06 is paid to the applicant in monthly installments as outlined above.