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


GORDON FEIRTAG, Applicant

BELL WELL SALES COMPANY, Employer

REGENT INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997023488


In March 1998, the applicant filed an application for hearing claiming disability with an April 7, 1997, date of injury from lumbar and cervical disc disease due to work activity while working for the employer. In its answer, employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $667.50. The respondent denied that the applicant had suffered a compensable injury, however.

A hearing was held in December 1998 before Administrative Law Judge (ALJ) James Lawrence of the Department of Workforce Development in the Division of Workers Compensation. Thereafter, ALJ Lawrence issued a decision finding that the applicant sustained a compensable work injury, and awarding compensation for temporary disability, permanent partial disability on a functional basis, and medical expenses. ALJ Lawrence left his order interlocutory. The respondent did not petition for commission review of that order.

The matter now before the commission arises on the applicant's claim for permanent partial disability on a vocational basis, or loss of earning capacity, from the work injury. The applicant claimed permanent total disability on a vocational, or "odd-lot" basis. The respondent asserts that the applicant, at most, sustained a 10 to 20 percent loss of earning capacity.

The loss of earning capacity issue was heard before ALJ Thomas R. Jones on April 5, 2000. ALJ Jones subsequently issued an order dated July 6, 2000, finding that the applicant sustained permanent partial disability at 65 percent. The respondent filed a timely petition for commission review of ALJ Jones's order.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted at the hearings, and consulted with ALJ Jones concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

a. Facts.

The applicant was born in 1940. He graduated from high school in 1957, and in 1962 completed a truck-driving course. He has no real formal training otherwise.

From 1964 to 1984, the applicant worked as a truck driver for another employer in a job that involved deliveries in a five-state area, but no loading or unloading. He earned as much as $33,000 per year, but this employment ended when the business was sold and closed.

Six months later, in April 1985, the applicant began work for his time-of-injury employer, Bell Well Sales. This job involved warehouse tasks, delivery-driving in the Milwaukee metropolitan area, and customer service work on the telephone. He made sales, took orders, prepared packages for shipping, and even did general cleaning work. In addition to the "inside" work doing sales, the applicant worked in the warehouse lifting boxes weighing up to 100 pounds. As noted above, the applicant claimed disability from lumbar and cervical spondylosis caused by his work activity.

ALJ Lawrence's order after the first hearing on causation and the extent of functional disability found: that the applicant lifted boxes weighing between 40 and 140 pounds; that the applicant had no back problems before 1990; that the applicant testified that in about 1990 he began to have backache which he attributed to muscle strain; that in 1993 he was in an automobile accident; that he had two months of terrible pain after lifting something heavy at work at some point, but did not miss work; that the applicant testified that on April 7, 1997, his back gave out causing severe pain; that on April 8, 1997, he began medical treatment including physical therapy and injections; that he did not return to work with the employer because he believed he could not do the job; that his back never improved, was painful, and kept him awake at night; that he tried retraining but could not continue because of the pain; and that he began receiving social security in October 1997.

According to record from the first hearing before ALJ Lawrence, the applicant's treating doctor, Michael R. Major, M.D. diagnosed cervical and lumbar spondylosis. December 1998 hearing, exhibits A and B. Dr. Major opined that that condition was caused an appreciable period of work place exposure that was either the sole cause or a material contributory causative factor in the condition's onset or progression. In other words, Dr. Major concluded the applicant's cervical and lumbar spondylosis condition was the result of occupational disease.

Dr. Major's notes in evidence at the first hearing include a June 3, 1997 letter in which the doctor opined that the applicant could return work with limited bending and lifting, and released the applicant to part-time light or sedentary duty. However, the doctor reported in October 1997 that the applicant's back and neck continued to hurt even though he had not returned to work. Dr. Major also suggested that continued conservative treatment, rather than surgery, was indicated.

According to the record from the hearing before ALJ Lawrence, the competing opinion of the employer's independent medical examiner, Gorden L. Clark, M.D., was that the applicant sustained no breakage or pathological change on April 7, 1997, and that the gradual onset of discomfort on that day was simply the manifestation of his known pre-existing degenerative disease. December 2000 hearing, exhibit 2, June 28, 1997 report of Clark, page 10. Dr. Clark does not explain what caused the pre-existing condition, though one would infer he thought it, too, was not work-related. Thus, under Dr. Clark's opinion, the applicant's disability would be noncompensable. See Lewellyn v. DILHR, 38 Wis. 2d 43, 59-60 (1968).

As noted above, ALJ Lawrence found a compensable work injury, and awarded compensation and medical expenses. With respect to permanent partial disability, ALJ Lawrence specifically adopted the expert medical opinion of the applicant's treating doctor, Michael Major, M.D., who rated permanent partial disability at two percent on a functional basis.

The applicant now lives in Missouri, where other members of his family live. The applicant had planned -- even before his work injury -- to quit his job with the employer and move to the Missouri from the Milwaukee area. The applicant planned to move because his wife had physical problems, and they desired to be closer to their grown children. In fact, he had informed the employer in February 1997, or two months before the work injury, that he intended to retire from the employer at the end of May 1997. See April 2000 hearing, exhibit A, report of Ewens, page 7, and April 2000 hearing, exhibit 1, report of Meltzer page 5. The applicant, however, planned to get an over-the-road truck-driving job upon relocating to Missouri.

At the subsequent hearing before ALJ Jones, the applicant also testified that his back pain remains bad, that he has problems sleeping, cannot stand or sit very long, and cannot walk very far. Since moving to Missouri he has made no real effort to find work, due to the effects of his injury.

The parties submit expert medical opinion to establish the applicant's permanent work restrictions from the work injury. The applicant resubmits the restrictions set by treating doctor Major on June 3, 1997. April 2000 hearing, exhibit B. Again, Dr. Major suggested a return to work for four hours per day with sedentary or light work, and retraining if the applicant were unable to work under those restrictions.

The applicant also submits a functional capacity evaluation prepared by G.D. Cooper, M.D., on May 6, 1999. April 2000 hearing, exhibit C. This report permits occasional lifting of up to 20 pounds, occasional pushing, pulling, bending, squatting, crawling, climbing, and reaching above shoulder level. Dr. Cooper allows-in an eight-hour work day-eight hours of sitting, two hours of standing, two hours of walking, and two hours of alternating standing and sitting. However, after setting out these restrictions which would not seem to preclude a return to some kind of work, Dr. Cooper opined the applicant could not return to work subject to the restrictions and had a fifty percent disability rating.

For its part, the employer resubmits the report from Dr. Clark dated July 28, 1997. April 2000 hearing, exhibit 1. The part of Dr. Clark's report dealing with restrictions provides:

"5. Do you feel Mr. Feirtag could return work at this time? If so are any temporary or permanent restrictions appropriate as it relates to his work event of 04/07/97?

"Response: Yes. Regardless of causation, there are no temporary or permanent work restrictions as it relates to the symptomatic episode of April 7, 1997."

April 2000 hearing, exhibit 1, page 11.

The applicant submits expert vocational opinion form Mark Ewens. April 2000 hearing, exhibit A. Mr. Ewens summarized DVR testing as showing well below average in spelling, arithmetic and reading skills; average mechanical reasoning and spatial relation skills; and above average word knowledge skills. Mr. Ewens noted the applicant's pre-injury earnings, based on his conceded average weekly wage of $667.50 for an average 42.5-hour week (which is annualized for a fifty-two week-year at $34,710).

Mr. Ewens's report recited the work restrictions set by Drs. Clark and Cooper as set out above. In describing Dr. Major's work restriction, Mr. Ewens first outlined the June 3, 1997 restrictions (four hours a day, light or sedentary work, limited lifting and bending) set out at the April 2000 hearing, exhibit B. However, Mr. Ewens also discussed restrictions set in a subsequent September 2, 1997 functional capacity report prepared by Dr. Major. In the September 1997 functional capacity evaluation, Dr. Major allowed occasional lifting and carrying limits of 24 pounds, as well as pushing and pulling occasionally, but recommended avoiding bending, squatting, crawling, twisting, and reaching above shoulder level. In an eight hour day, Dr. Major allowed six hours of sitting, two hours of standing, two hours of walking, and eight hours of alternating between sitting and standing. Dr. Major allowed part-time work initially, with a progression to full time. The applicant did not introduce Dr. Major's September 2, 1997, functional capacity evaluation as an exhibit at either hearing.

Mr. Ewens went on to opine that under IME Clark's report setting no restrictions, the applicant would have no loss of earning capacity. Under Dr. Cooper's functional capacity evaluation, Mr. Ewens opined that the applicant could work as a cashier, counter attendant, retail salesperson, and security person, as well as doing selected work as mail clerk and messenger. He opined this work paid in the range of $6.00 to $8.00 per hour ($240 to $320 per week), which would result in a 60 to 65 percent loss of earning capacity. Finally, Mr. Ewens noted that Dr. Major's September 2, 1997, functional capacity evaluation precluded bending, squatting, twisting, and reaching above shoulder level, and allowed only modified sedentary work at best, but that the applicant lacked the skills and education to perform that type of work. Mr. Ewens opined, therefore, that the applicant would be permanently and totally disabled on an odd-lot basis under Dr. Major's September 1997 restrictions.

The employer submits the opinion of its expert, John M. Meltzer. April 2000 hearing, exhibit 1. He noted the applicant's results in DVR testing as showing: seventh grade level spelling and math skills; reading at the 10.9 grade level; low scores in verbal reasoning, numerical ability, and language usage; below average scores in perceptual speed, accuracy, manual speed, and dexterity; and average scores in mechanical reasoning, spatial relations, and word knowledge. Noting the applicant's education, Mr. Meltzer opined the applicant retained the ability to do semi-skilled to skilled jobs. He noted the following as transferable skills: the ability to speak distinctly, the ability to listen carefully, the ability to apply specialty knowledge to give oral information to people, the ability to change tasks, the ability to be tactful and courteous, the ability to discuss the features of products, the ability to gain the trust and confidence of people, and the ability to prepare sales contracts or purchase orders.

Mr. Meltzer noted that the move to Missouri, which again the applicant had planned even before he hurt his back, would have had a significant effect on his earning capacity even if he had not been reinjured. Mr. Meltzer pointed out that, because of the move, the applicant would have had to start over in a new geographical area with a new employer. Thus, Mr. Meltzer evidently reasoned, even without the injury, the applicant's move to Missouri would have meant he would have been making less than the $34,000 he earned working in Milwaukee for the employer.

To underscore this point, Mr. Meltzer pointed out the difference between the local economies in Bradleyville, Missouri, and Milwaukee, Wisconsin. Milwaukee offers a large metropolitan labor market. Bradleyville is located near Branston, Missouri, a major tourist site. As a result, Bradleyville has a fluctuating, seasonal unemployment rate varying from under 2 percent to up to 19 percent over the course of a year. Available jobs tend to be the types of service work one would expect in the tourism industry, work in restaurants, hotels, motels, resorts, theaters, gift shops, hospitals, golf courses, etc. Mr. Meltzer's point seems to be that the applicant's pre-injury planned move to Missouri would have restricted himself to the same types of relatively low-paying, unskilled or semi-skilled, light and sedentary work that his work injury restricted him to. Considering the applicant's lost access to such jobs given his age and work limitations, Mr. Meltzer rated the applicant's loss of earning capacity at 10 to 20 percent.

b. Discussion.

Loss of earning capacity is determined by taking into account the effect of a worker's permanent work restrictions resulting from an injury upon the worker's present and potential earnings. Wis. Admin. Code DWD 80.34(1)(intro.) The starting point for analysis for a loss of earning capacity award, then, is which of the three medical experts is most credible with respect to the applicant's work restrictions from the injury. In this case, the commission finds most credible, and adopts, the restrictions set by Dr. Cooper in May 1999.

The commission cannot credit IME Clark's opinion regarding work restrictions. As pointed out above, Dr. Clark's opinion rules out only an injury occurring on April 7, 1997, from either traumatic event or unusual work on that date; in other words, he opines there was neither a direct injury nor a Lewellyn 3 (1)  type "event" that accelerates, aggravates, and precipitates a pre-existing degenerative condition beyond normal progression. Finding no such accident or event occurred, he concluded the applicant's condition was related to his pre-existing degenerative condition. When he opined there were no work restrictions, he did so in terms limiting his opinion to work restrictions "relating to the symptomatic episode of April 7, 1997."

However, ALJ Lawrence adopted the occupational disease opinion of Dr. Major in the first decision in this case. In so doing, ALJ Lawrence acknowledged that the causation question did not turn on what happened on April 7, 1997, specifically, but on the effect of the applicant's work exposure over the prior 15 years. ALJ Lawrence accepted Dr. Major's opinion that years of repetitive lifting and bending for the employer was at least a material contributory causative factor in the onset or progression of the applicant's disabling disc disease.

ALJ Lawrence's decision adopting Dr. Major's opinion on causation and extent of functional disability went unappealed. Thus, the respondent may not avoid liability by claiming the restrictions were the result of non-work pre-existing condition, as Dr. Major credibly opined that work exposure caused the applicant's underlying condition. Nor may the respondent continue to rely on Dr. Clark's opinion that no restrictions were caused by an event or single-day exposure on April 7, 1997. Dr. Clark could have said the applicant had no restrictions from his pre-existing condition or otherwise, or that the work restrictions were less limiting than Drs. Major and Cooper thought. However, that was not the opinion IME Clark gave. In short, the commission is not inclined to revisit the issue of causation at this juncture, which it would have to do in order to adopt Dr. Clark's opinion on work restrictions.

Nor does the commission credit Dr. Major's restrictions. According to the applicant's vocational expert, Mr. Ewens, the restrictions Dr. Major set in his June 3, 1997, letter at exhibit B, are different than those the doctor later set in the September 1997 FCE. However, the September 2, 1997, restrictions are not in the record, except as recited by Mr. Ewens. Indeed, the applicant only submitted Dr. Major's earlier, more limiting, and presumably retracted, restrictions from June 1997. Further, the commission notes that the restrictions set by Dr. Major in September 1997 are significantly more limiting than those set more recently by the applicant's other medical expert, Dr. Cooper.

The commission is satisfied that, after reading Dr. Cooper's restrictions and considering the applicant's duties, the applicant could not return to his job with the employer. Nor has it been shown that the employer offered him other employment within his restrictions that paid at least 85 percent of his pre-injury wage. Accordingly, a loss of earning capacity award is appropriate under Wis. Stat. 102.44(6). The next question, then, is permanent disability on a vocational basis, or the extent of the applicant's loss of earning capacity, under the work restrictions set by Dr. Cooper.

Dr. Cooper himself seems to opine that the applicant would not be able to find work under the restrictions he set, but both vocational experts disagreed with that conclusion. Inasmuch as Dr. Cooper is not a vocational expert, the commission cannot credit the doctor's apparent conclusion that the applicant is totally and permanently disabled on a vocational basis. In light of the opinion of his own vocational expert, Mr. Ewens, that the applicant sustained a 60 to 65 percent loss based on Dr. Cooper's restrictions, the applicant may not rely on Dr. Cooper's opinion to establish a prima facie case of odd-lot unemployability. Balczewski v. ILHR Department, 76 Wis. 2d 487, 493-496 (1977).

Nor does the commission credit Mr. Ewens's rating of lost earning capacity in this case. As the commission reads his report, Mr. Ewens gives little or no weight to the applicant's pre-planned move to Missouri. When he rates loss of earning capacity, he uses the applicant's wage with the time-of-injury employer as the applicant's pre-injury earning capacity. Then Mr. Ewens compares that figure to the applicant's post-injury earning potential at selected, low-skill sedentary/light duty jobs in the Milwaukee labor market. In other words, Mr. Ewens rated loss of earning capacity as if the applicant would have remained employed in Milwaukee had he not been injured.

On the other hand, the employer's expert, Mr. Meltzer, attempts to factor in the planned move to Missouri on the applicant's pre-injury capacity. Meltzer's point is that it is wrong to assume the pre-injury capacity was the $34,000 the applicant earned working for the employer because the applicant would not have continued to work for the employer.

Mr. Meltzer's report, in a sense, follows reasoning analogous to the "displaced worker theory" sometimes arising in loss earning cases before the commission. The theory arises from the situation where the business or factory where the injured worker was employed closes after his or her injury. In such cases, employers often assert that loss of earning capacity should not be based on the pre-injury wages which do not reflect the worker's likely future depressed earnings in light of the plant closing.

The commission has previously recognized that "there is something to" the displaced worker theory in loss of earning capacity cases, though it has refused to discount entirely prior wages on a displaced worker theory especially where it appears that a relatively higher wage in the factory job may have prevented the applicant from pursuing equally high-paying jobs in other fields. (2)   Along similar lines the commission is less inclined to apply the displaced worker theory where the worker retains skills -- but for the injury -- which would have enabled him to obtain relatively higher paying work even after the plant closing, even if the worker had not been fully using those skills in the factory job. (3)   The commission has also observed that Wis. Admin. Code DWD 80.34(1)(d) and (e) requires the commission to consider previous work experience and previous actual earnings, and the commission has refused to apply the displaced worker theory where the worker had lost four years of pre- injury earnings before the plant closing occurred. (4)   Nonetheless, the commission has affirmed an award based on a rating using the displaced worker theory-at least where the worker was not working due to the layoff rather than the work injury. (5)

Running through the analysis in this case, too, is the fact that a loss of earning capacity award is not based solely on a straight wage analysis. Rather, the commission and ALJs must also consider a worker's age, the likelihood of a worker's of future suitable occupational change, willingness to relocate to obtain work, and efforts to find work. Wis. Admin. Code DWD 80.34 (1)(f), (g) and (h). Of course, these factors do not directly cover the applicant's pre-injury plans to leave his employment to move to Missouri, but the factors do indicate that such plans may be appropriately considered under Wis. Adm. Code, DWD 80.34(1)(k) which directs the commission to consider "other pertinent evidence" in setting loss of earning capacity.

Of course, Wis. Adm. Code. DWD 80.34(1)(c), (d), (e) and (f), also require a decision-maker to consider a worker's training, prior work experience and earnings, and time of injury earnings and employment. Mr. Meltzer's report gives these factors little or no weight. Specifically, Mr. Meltzer gives the applicant's time of injury wage and employment no consideration. More significantly, Mr. Meltzer did not consider the applicant's plan to obtain truck driving work upon his move to Missouri, despite the applicant's prior training, employment and significant earnings in that field.

Instead, Mr. Meltzer simply concluded his future earning capacity would be determined by the presumably lower-paying work in the tourism and service industry. The record indicates that as far back as the 1980s, the applicant had made almost as much per year as he made in 1997 with the time-of-injury employer. While the respondent discounts the applicant's plans to find truck driving work as self-serving, almost any testimony about future plans is subject to the same objection that it is self-serving. In addition, as explained below, the ALJ saw the applicant testify on this point, and found the testimony credible. Further, the testimony that the applicant desired to move to Missouri to be closer his family to get help with a disabled spouse is not necessarily inconsistent with testimony that he planned to obtain work as a truck driver when he got there. Certainly, the loss of the ability to engage in employment as a truck driver results in a more substantial loss than the lost access to tourism and service jobs that underlies Mr. Meltzer's 10 to 20 percent loss.

On the other hand, the commission cannot conclude that the loss of earning capacity award should simply assume the applicant would have found truck-driving work upon moving to Missouri. Plans to find work are not the same thing as working, and the commission is constrained to point out the applicant would be attempting to find work he had not performed in several years. In addition, the applicant would be looking for such work as older man in an unfamiliar location. Further, of course, a lower award is warranted by the applicant's lack of effort to locate suitable work upon his move to Missouri.

In sum, the commission, after considering the expert opinion together with other evidence in this record in light of the factors in Wis. Adm. Code 80.34, rates loss of earning capacity at 40 percent. See Wis. Stat. 102.17(7)(a). (6) The applicant's prior award for functional disability shall be merged into this award.

The applicant is therefore entitled to 400 weeks of compensation for permanent partial disability. At the weekly rate of $174 per week, the statutory maximum for injuries sustained in 1997, his total award for permanent disability is $69,600. (7)

As of March 15, 2001, however, only 184 weeks, 2 days of this award, totaling $32,074.00, have accrued. The remaining 215 weeks, 4 days, totaling $37,526.00 remain unaccrued. The employer has already paid permanent partial disability for twenty weeks at $3,480, and overpaid temporary total disability by $890. Deducting these sums from the accrued award leaves an additional amount accrued of $27,704. The additional amount awarded under this order, including the unaccrued award, is $65,230.

The applicant approved an attorney fee, which is set under Wis. Stat. 102.26 at twenty percent of the additional amount awarded, or $13,046. However, of that amount, $7,505.20 attributable to the final 215 weeks, 4 days, of the award remains unaccrued, while $5,540.80 is now due in accrued fee. As a result, the fee is subject to an interest credit of $995.03 on the advance payment of the unaccrued portion of the fee. The present value of the fee thus equals $12,050.97 and that amount, together with costs of $658.50, shall be paid the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $21,504.70. This equals the additional accrued amount ($27,704) less the accrued portion of the fees ($5,540.80), less the attorney's costs ($658.50).

The amount remaining to be paid as it accrues beginning on March 15, 2001 is ($30,020.80). This equals the unaccrued award ($37,526), less the future value of the fees thereon ($7,505.20). The remaining amount shall be paid to the applicant in monthly installments of $754, beginning on April 15, 2001.

In a report from September 1998 submitted at the first hearing, Dr. Majors indicated that expected the applicant would require future treatment. Nothing introduced at the second hearing leads the commission to question that assessment. Consequently, this order, like ALJ Lawrence's order, is left interlocutory to permit payment of future medical treatment expense, and future disability, if warranted.

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 in part and reversed in part. Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Twenty-one thousand five hundred four dollars and seventy cents ($21,504.70) in disability compensation.

2. To the applicant's attorney, the sum of Twelve thousand fifty dollars and ninety-seven cents ($12,050.97) in fees and Six hundred fifty-eight dollars and fifty cents ($658.50) in costs.

Beginning on April 15, 2001, and continuing on the fifteenth day of each month beginning thereafter, the employer and its insurer shall pay the applicant Seven hundred fifty-four dollars ($754) per month until the additional amount of Thirty thousand twenty dollars and eighty cents ($30,020.80) is paid.

Jurisdiction is reserved for further orders and awards as are warranted, consistent with this decision.

Dated and mailed March 20, 2001
feirtag . wrr : 101 : 3  ND 5.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with ALJ Jones concerning witness credibility and demeanor. The ALJ had the impression that the applicant was credible when he testified that he would have obtained truck driving work when he moved to Missouri, but also had the impression that the applicant's future plans were somewhat nebulous at the time of the injury.

The commission concurs with the ALJ's credibility assessment on that point. Its modification of the ALJ's decision was not based on any different impression of the applicant's credibility or demeanor, but on the credibility of the reports of the expert vocational witnesses, neither of whom actually testified before the ALJ.

cc:
Attorney Michael W. Fleming
Attorney Walter D. Thurow


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/03/23


Footnotes:

(1)( Back ) Lewellyn, at 38 Wis. 2d 59-60.

(2)( Back ) Jane Domacinovich v. WA Krueger Co., WC claim no. 92013422, 1997 WI Wrk. Comp. LEXIS 205 (LIRC, October 7, 1997).

(3)( Back ) Peitro Molinaro v. EMC Companies, WC claim no. 93026089, 1998 WI Wrk. Comp. LEXIS 175 (LIRC, May 28, 1998).

(4)( Back ) Simons v. Teledyne Wisconsin Motors, WC claim no. 88054619, 1994 WI Wrk. Comp. LEXIS 504 (LIRC, February 7, 1994). In this case, the commission stated that the administrative code does not compare pre-injury earning capacity with the postinjury earning capacity, but compares previous earnings to determine loss of earning capacity. This is a little inaccurate, as Wis. Admin. Code DWD 80.34 (1)(intro.) actually requires the commission, when determining loss of earning capacity, to take into account the effect of the injured person's physical and mental limitations from the injury on present and potential earnings, in light of several enumerated, but open-ended, factors.

(5)( Back ) Jerome Kirksey v. American Motors Corporation, WC claim nos. 89-013559 and 83-22757, 1991 WI Wrk. Comp. LEXIS 215 (LIRC, December 17, 1991).

(6)( Back ) And the department's footnotes thereto in DWD Worker's Compensation Act of Wisconsin, WKC-1-P(R.2/99).

(7)( Back ) While the applicant has qualified for social security, the department has determined that no offset was warranted under Wis. Stat. 102.44(5).