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

WENDY GONZALEZ, Applicant

J C PENNEY CO INC, Employer

J C PENNEY CO INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-025210


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 May 30, 2002
gonzalw . wsd : 101 : 1 ND 5.6  5.9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The applicant underwent a right wrist surgery in April 2000, and a right elbow surgery in May 2001. At the hearing before the ALJ, the employer and its insurer (collectively, the respondent) contended the right elbow surgery was not related to a work injury, and also contested the extent of the applicant's disability. The presiding ALJ found the right elbow surgery was related to a compensable injury, and awarded temporary disability associated with the right elbow through the date of the hearing.

On appeal, the respondent no longer contests the finding of a compensable right elbow injury. However, pointing to evidence that it contacted the applicant about an offer of work in the summer of 2000, that the applicant was in fact working for another employer and attending school during her healing period, and that the applicant completed physical therapy on August 16, 2001, the respondent contends its liability for temporary disability should end on that date.

In general, temporary disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Adm. Code § DWD 80.47. The "healing period" is the period prior to the time when the injured worker's condition becomes stationary, Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932) and ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

In this case, the applicant's doctor, David Olson, M.D., opined as of January 4, 2002 that the applicant had not reached an end of healing. The respondent does not provide an IME report, indicating that the applicant is at an end of healing. Rather, it provides a November 2000 report from Dr. Matloub recommending the elbow surgery the applicant underwent in May 2001, and indicating that the applicant would likely recover in 3 to 4 months.

On this record, the ALJ appropriately concluded the applicant remains in a healing period. True, the applicant is not undergoing physical therapy, or some more obvious active form of treatment, but she is still following with a doctor and he has opined she is still healing. No doctor, in fact, has said otherwise; Dr. Matloub, who has not examined the applicant since the surgery, only suggested a likely plateau date.

The respondent further asserts that a worker is only entitled to temporary disability while he or she is totally disabled, that is, not capable working. In this case, Dr. Olson has released the applicant to work with restrictions, and she is working as well as going to school. Consequently, the respondent argues, its liability for temporary total disability should end as the applicant is no longer disabled from working at least in some capacity.

However, the liability for temporary disability compensation continues as long as the applicant is healing, see, Larsen and Knobbe, supra. A worker may continue to heal long after he is able to resume work in some restricted capacity. The applicant ordinarily remains entitled to temporary total disability in that event, unless he or she earns wages lessening the wage loss and resulting in the calculation of temporary partial disability. Wis. Stat. § 102.43(2).

In other words, the end of healing, or healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. If a worker in fact returns to work while he is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wisconsin Statutes § 102.43(2). But a return to work does not necessarily mean a worker has reached an end of healing, nor does a doctor's release to work. If an employer furnishes suitable employment to an injured worker within his or her physical and mental limitations during the healing period but the worker refuses it without reasonable cause, the applicant's temporary disability benefits may be reduced by the wages he would have earned had he accepted the work. However, the burden of providing such work is on the employer under Wis. Admin. Code § DWD 80.47. See: Neal & Danas, Workers Compensation Handbook, § 5.10 (4th ed., 1997). See also: See also, Wellsandt v. Chippewa County, WC case no. 93050745 (LIRC, November 28, 1997); Baker-Drayton v. St. Annes Home, WC Claim No. 1995-038417 (LIRC, July 12, 1999); and Falk v. Cummins Great Lakes, WC Claim No. 1995034834 (July 6, 2001).

In this case, the ALJ followed the correct course by awarding temporary disability, subject to the proportional reduction for earned wages. The commission also declines to deny temporary disability compensation altogether because the employer left a message on the applicant's telephone answering machine asking her to call back about a return to work in the summer of 2000. A contact about a potential return to work falls short of an offer "furnishing suitable employment within her physical and mental limitations." Further, the open-ended offer was made in the summer of 2000, or the year before her most recent surgery.

cc: 
Attorney Alan I. Derzon
Attorney Michael C. Frohman


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