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


MARK A BANACH, Applicant

BUCYRUS INTERNATIONAL INC, Employer

ZURICH AMERICAN
INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-050520


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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 March 23, 2001
banacma . wsd : 175 : 8 ND 5.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant was entitled to temporary total disability benefits for the period of March 9, 1999 through August 11, 1999. The employer contends that the administrative law judge erroneously applied the holding of the Wisconsin Supreme Court in Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 624 (1997) due to the facts of this case. The employer states that the Brakebush decision is distinguishable on its facts since the applicant in the Brakebush case was off of work due to his work injury at that time that he was discharged, while the applicant in our current case had returned to work at light duty for three months prior to his suspension and discharge. The employer states that once the applicant had returned to work and was absent without valid reason that his actions were tantamount to a refusal or abandonment of his job, and therefore he was not entitled to temporary total disability benefits and that under these facts this would be an exception to the general rule enunciated in the Brakebush decision. The commission has noted an exception to the Brakebush holding in the case of Wellsandt v. Chippewa County, LIRC Decision dated November 27, 1998. In the Wellsandt case the employee had returned to restricted work following his injury and was subsequently discharged for failing to replace the oil in the sheriff deputy's car while working under a last chance agreement. The commission stated in Wellsandt that there is support for reducing or denying temporary total disability benefits in an analogous situation of a refusal of suitable light duty work for reasons unrelated to the work injury during a healing period, and that such an exception to the Brakebush holding must rest on the conclusion that the applicant's conduct with respect to the oil change was the analytic equivalent of refusing an offer of work.

However, in our current case it was not established that the applicant's actions leading to his discharge were the analytic equivalent of refusing an offer of work. The applicant testified that his absences from February 26, 1999 to March 9, 1999, were due to his right foot and ankle, and that he had an MRI on one of days that he was off and he also underwent physical therapy. The applicant admitted that the physical therapy and the MRI did not cause the five or six days of absence and that the rest of the time he was off was unexcused. The applicant also testified that a couple of days before he began missing work, a six ton plate was dropped behind him and although he did not sustain any physical injury, he was mentally injured, and he saw his own physician and a psychologist. The applicant testified that he had a medical authorization to be off of work during the days that he missed and he disputed that he had not requested a hearing on his suspension within the three days as allowed under the employers agreement in March 1999. The evidence indicates that the applicant filed a grievance once his suspension had been converted to a termination, but that his grievance was denied at the fourth step and that the union refused to go to arbitration on the matter.

The commission consulted with the administrative law judge concerning her assessment of the applicant's demeanor and testimony of his reasons for being absent in late February and early March of 1999. The administrative law judge indicated that she found the applicant to be credible in his version that he was absent due to his need for physical therapy and a MRI, as well as due to psychological problems due to the incident at work when a six ton plate was dropped behind him. The applicant's initial work injury occurred on September 9, 1998, when a steel plate weighing more than 1,000 pounds fell onto the applicant's right foot severing his work boot and nearly severing three of his toes.

The applicant's medical notes indicate that he was undergoing physical therapy from February 22, 1999 to March 10, 1999, as the applicant had testified at the hearing. A progress report dated March 9, 1999, indicates that the applicant had been in treatment since February 22, 1999 with ultrasound, soft tissue mobilization, joint mobilization, flexibility and strengthening exercises. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judges credibility determination. Given the applicant's testimony and the evidence that the applicant was undergoing physical therapy and treatment in late February 1999 and early March 1999, and given the fact that the applicant grieved his termination with the employer and attempted to retain his job, the evidence did not establish that the applicant's actions were tantamount to a refusal of work, or that he had no interest in continuing his employment. The evidence indicates that the applicant did not reach a healing plateau until August 11, 1999, and that he had been terminated by the employer and that he did not receive any wages for the period of March 9, 1999, through August 11, 1999, and therefore the applicant was eligible for temporary total disability benefits through August 11, 1999.

cc:
Attorney Julie J. Darnieder
Attorney Dennis H. Wicht


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