DANIEL L NUETZEL, Applicant
OSHKOSH TRUCK CORP, Employer
LUMBERMENS MUTUAL CAS CO, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed September 28, 2009
nuettzd . wsd : 101 : 5 ND 5.40
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Background and posture.
The applicant was born in 1957, and began working for the employer as an assembler in 1983. He injured his left knee in October 2000. He required a meniscectomy surgery. After the surgery, his treating surgeon, Dr. Tsai, rated permanent partial disability compared to amputation at the knee at five percent. He also set restrictions against ladder climbing, kneeling/crawling, standing more than 4 hours per day, and overtime. Exhibit F, February 14, 2001 report of Tsai.
The applicant injured his right knee in October 2002, and again required surgery. Specifically, Dr. Buck performed an arthroscopic examination of the right knee, with a partial meniscectomy, excision of the anteriolateral plica, and chondroplasty of the patella. After his surgery, treating surgeon Buck rated permanent partial disability compared to amputation at the knee at ten percent. He also issued restrictions limiting the applicant to occasional squatting and climbing, no kneeling or crawling, and overtime as tolerated. See exhibit A, May 14, 2003 report of Buck.
A medical examiner (Dr. Orth) retained by the employer and its insurer (collectively, the respondent) opined that the applicant may work without restriction to either knee.
The ALJ found the restrictions set by the treating surgeons to be reasonable. In support of this conclusion, he noted the surgeries, the applicant's credible testimony regarding continuing pain, the fact that permanent partial disability was rated for both knees, and his reading of an earlier medical examiner retained by the respondent (Clark) as supporting left knee restrictions.
Despite his restrictions, the applicant was able to continue working for the employer until April 27, 2006, when he was fired for sleeping on the job. He then applied for retraining from the division of vocational rehabilitation (DVR). The DVR found the applicant eligible for retraining and issued an Individualized Plan for Employment (IPE). This case arises from his claim for vocational rehabilitation benefits under the worker's compensation statutes.
Under Wis. Stat. § § 102.43(5) and 102.61, if a worker is entitled to receive and has received workers compensation, and is entitled to receive and is receiving instruction under the federal vocational rehabilitation laws, he or she is eligible for certain expenses as well as payments at the temporary total disability rate while he is attending school. However, the authority of the commission and the worker's compensation division in such cases is limited, at least once it has been determined that the applicant has a compensable injury and that DVR has certified the worker for retraining.
In Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957), the supreme court noted that the duty to interpret and administer the vocational rehabilitation laws was imposed on the predecessor to DVR, and that the Industrial Commission had no power to review the acts of the
DVR- predecessor. The court went on to hold that the Industrial Commission had to find that an injured worker receiving retraining authorized by the
DVR-predecessor is entitled to it for the purposes of Wis. Stat. § 102.61, unless:
Massachusetts Bonding, at 275 Wis. 512.
Recently, the legislature has enacted a statutory defense available to employers in cases where a worker claims vocational rehabilitation benefits. See Wis. Stat. § 102.61(1g) (discussed below). Very generally, if an employer offers such a worker suitable employment at 90 percent of his pre-injury wage, the employer is not liable for vocational rehabilitation benefits.
In this case, the respondent raised the statutory defense under Wis. Stat. § 102.61(1g). However, the ALJ nonetheless found the applicant eligible for vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61. The respondent has petitioned for review, challenging the ALJ's decision on several bases.
a. Applicable permanent restrictions?
First, the respondent argues that the ALJ arbitrarily decided to credit the opinions of the treating surgeons (Drs. Tsai and Buck) that the applicant needed work restrictions due to the work injury over the opinion of its examiner (Dr. Orth) that no restrictions were warranted.1(1) On this point, the respondent notes that Dr. Orth recorded only subjective complaints, that his examination of the applicant's knee was normal, and that Dr. Orth had examined the applicant (March 2008) more recently than the treating surgeons.
However, despite noting a normal knee examination, Dr. Orth conceded the applicant had documented chondromalacia (but no effusion) and crepitus (which was not painful.) In addition, while Dr. Orth opined that it was unreasonable and unnecessary to set work restrictions based on subjective complaints of pain, an earlier medical examiner retained by the employer, Dr. Clark, stated:
If Mr. Nuetzel responds fully to [surgery] and has essentially no or quite minimal symptoms with no objective findings, then permanent work restrictions would not be necessary. However, if in the postoperative period, Dr. Buck notes ongoing symptoms and difficulties and assessed permanent work restrictions, then it would be appropriate to provide an additional evaluation to determine what permanent work restrictions would in fact be appropriate.
Exhibit 2, report of Clark, page 2.
Dr. Clark's opinion may be read to mean that if the applicant remained symptomatic, there could be a disagreement between the doctors as to what restrictions would be necessary, and, possibly, whether any restrictions were necessary at all. However, the commission does not read Dr. Clark to agree with Dr. Orth's blanket statement that work restrictions are unnecessary due to the lack of objective findings, particularly if the worker has undergone two knee surgeries (including meniscectomies and chondroplasty), has chondromalacia, and has significant complaints of ongoing pain for which he has had treatment in the years following his surgeries.
In short, the ALJ's decision to credit the opinions of treating surgeons Tsai and Buck regarding the applicant's work restrictions was not arbitrary. Rather, the commission finds it the most reasonable conclusion based on the record in this case.
b. Effect of post-injury discharge for sleeping
The respondent next argues that because the applicant was discharged for cause, he is ineligible for vocational rehabilitation benefits. The ALJ held that there is no "discharge for cause" defense to vocational rehabilitation. He cited two worker's compensation decisions where the commission reached that conclusion: Gasper v. WisMarq Corporation, WC claim no. 94067858 (LIRC, February 24, 1998) and Falk v. Cummins Great Lakes, WC claim no. 1995034834 (LIRC, July 6, 2001).
However, the respondent points out that both of those commission decisions were decided before the effective date of the enactment of Wis. Stat. § 102.61(1g), which provides a defense to employers who offer suitable work to injured workers claiming vocational rehabilitation benefits. That subsection provides:
102.61(1g) (a) In this subsection, "suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90% of the employee's preinjury average weekly wage, except that employment that pays 90% or more of the employee's preinjury average weekly wage does not constitute suitable employment if any of the following apply:
1. The employee's education, training, or employment experience demonstrates that the employee is on a career or vocational path, the employee's average weekly wage on the date of injury does not reflect the average weekly wage that the employee reasonably could have been expected to earn in the demonstrated career or vocational path, and the permanent work restrictions caused by the injury impede the employee's ability to pursue the demonstrated career or vocational path.
2. The employee was performing part-time employment at the time of the injury, the employee's average weekly wage for compensation purposes is calculated under s. 102.11 (1) (f) 1. or 2., and that average weekly wage exceeds the employee's gross average weekly wage for the part-time employment.
(b) If an employer offers an employee suitable employment as provided in par. (c), the employer or the employer's insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) or for travel and maintenance expenses under sub. (1). Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under 29 USC 701 to 797b if the department determines that the employee is eligible to receive those services.
(c) On receiving notice that he or she is eligible to receive vocational rehabilitation services under 29 USC 701 to 797a, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the department to determine the employee's work restrictions. Within 30 days after the department determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.
The department's interpretative footnote provides:
223A carrier or self-insured employer is not liable for retraining if an employer offers suitable employment to the employee. For employees who receive services from the Division of Vocational Rehabilitation, suitable employment is defined as employment within the employee's permanent work restrictions, the employee has the necessary physical capacity, knowledge, transferable skills, ability to perform, and that pays not less than 90 percent of the employee's preinjury average weekly earnings. 2001 Wis. Act 37, effective January 1, 2002, created this amendment which defines suitable employment.
For employees who cannot receive services from the Division of Vocational Rehabilitation, suitable employment remains defined as a job within the employee's permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills, ability and which pays at least 85 percent of the employee's preinjury average weekly wage. See Rule DWD 80.49(4)(d) and (5).
DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007 (WKC-1-P (R.03/2008))
The respondent states in its brief:
The Employer offered and, in fact, the Applicant had accepted, suitable employment after his knee injuries. He was performing suitable work within his restrictions after both the 2000 and 2002 knee injuries. The applicant was responsible for his own termination and his termination was bona fide. Therefore, there is no liability for DVR retraining.
The respondent stops short of arguing that the offer of suitable employment, alone, provides a defense regardless of what happened after. It accepts that the offer must have been in good faith, and that an employer cannot claim the defense to vocational rehabilitation if it offers work and then withdraws the offer or if an employer discharges a worker in bad faith after making an offer. Rather, the respondent argues the employer here acted in good faith, and that the discharge had nothing to do with the work injury, so that the employer should be able to take advantage of the defense under Wis. Stat. § 102.61(1g).
However, as the ALJ stated, Wis. Stat. § 102.61(1g) does not explicitly provide for a defense in the event of discharge for misconduct or any other reason. Further, the underlying purpose of vocational rehabilitation benefits--the rehabilitation of an injured worker whose restrictions caused a work injury--remains even after a discharge for performance-based reasons unrelated to a work injury. The supreme court recognized this in Brakebush Brothers, Inc v. LIRC, 210 Wis. 2d 623 (1997), a case dealing with the effect on temporary disability liability of a discharge for alleged misconduct during a healing period. In that case, the court stated:
The purpose of worker's compensation disability benefits is to compensate employees who have lost the ability to work ... due to a work-related injury, regardless of whether they are good or bad employees.
Brakebush, 210 Wis. 2d at 636. The supreme court also quoted the following language from the commission's decision with approval:
[W]hile the employer appears to have had sound reasons for terminating the applicant, this does not relieve the employer/insurance carrier from the obligation to pay temporary total disability benefits for the period in question.... To the employer and its insurance carrier, it may seem inequitable that the applicant is able to receive temporary disability benefits after having been discharged for good cause. However, worker's compensation is a statutory program and there is no provision in Chapter 102 which would allow the cutoff of temporary disability benefits as long as the work injury continues to cause disability.
Brakebush, 210 Wis. 2d at 634.
The commission believes that the vocational rehabilitation statute may reasonably be read in light of the analysis in the
Brakebush decision. First, the portion of vocational rehabilitation benefits paid under Wis. Stat. § 102.43(5) are temporary total disability benefits, according to a recent holding of court of appeals.
Michels Pipeline Constr. v. Labor & Indus. Review Comm'n, 2008 WI App 55,
12, 309 Wis. 2d 470. Second, temporary total disability payments paid under Wis. Stat. § 102.43(5) for vocational rehabilitation and temporary total disability payments paid under Wis. Stat. § 102.43 for medical or physical rehabilitation serve similar purposes in the recovery of a worker following injury. See
Transamerica Ins. Co. v. Department of Indus., Labor & Human Rels., 54 Wis. 2d 272, 280-82 (1972).
Here, as in Brakebush, there is no explicit statute allowing for a denial of vocational rehabilitation benefits due to a discharge. After the Brakebush decision, of course, the legislature did enact Wis. Stat. § 102.43(9), permitting the denial of temporary total disability benefits during a healing period for certain drug-related and crime-related discharges. However, even those provisions would not seem to cover a simple discharge for sleeping on the job. In any event, the legislature did not enact a similar provision permitting denial of benefits after a discharge, for misconduct or any other reason, with respect to vocational rehabilitation under Wis. Stat. § 102.61(1g).
The employer argues that it was not the work injury but the sleeping that has led to the applicant's job loss and thus to his claim for DVR retraining. This is somewhat similar to an argument in a recent court of appeals case involving a worker who was fired after returning to work subject to temporary restrictions. Emmpak Foods, Inc., v. LIRC, 2007 WI App 164, 303 Wis. 2d 771. In Emmpak Foods, the employer attempted to factually distinguish Brakebush, noting that there the worker had not yet returned to work when discharged. The court rejected that argument noting:
The Act is a remedial statute that must be liberally construed to afford compensation. [Citation omitted.] Though it is true that Emmpak's firing of Race was the immediate cause of his loss of his wage from Emmpak, it was not the only cause of his unemployment. When Race was injured, he was rendered unable to use his left hand. As Race was an electrician, this injury obviously severely limited his ability to work; ... At the time he was fired, Race was still unable to use his left hand, and thus was much less employable than he otherwise would have been. Though his termination was the reason Emmpak stopped paying him, the injury was still partially responsible for his economic loss, since he was severely restricted in his ability to find other work. Thus, just as the employee in Brakebush, Race "continue[d] to be limited by the work-related injury" and had "lost the ability to work ... due to a work related injury."
Emmpak Foods v. LIRC, 303 Wis. 2d 771, 13.(2)
In sum, the commission rejects the employer's argument that the Wis. Stat. § 102.43(1g) defense applies in this case. The commission agrees with the ALJ that the applicant should be entitled to vocational retraining benefits, notwithstanding the pre-discharge offer of work and period of employment after his injury, given the statutory framework set out above.
c. Abuse of administrative power
Aside from the offer of work defense under Wis. Stat. § 102.61(1g), the respondent raises the more traditional defense under Massachusetts Bonding: that DVR abused its administrative powering certifying the applicant for benefits. Again, if the commission determines that a worker has sustained a compensable injury, its authority to consider the question of the appropriateness of vocational rehabilitation is limited because the duty to interpret and administer the vocational rehabilitation laws rests with the DVR. The supreme court held that DWD and the commission must find that an injured worker receiving retraining authorized by the DVR is entitled to it, unless DWD or the commission concludes that (a) highly material facts were withheld or misrepresented to the DVR or (b) the DVR interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power. Massachusetts Bonding, at 275 Wis. 512.
In this case, the employer argues that the DVR abused its administrative power because the applicant's DVR counselor, Sharon Jones, did not follow the recommendation of a contractor, Al Pedracine, whom the DVR had hired for a vocational assessment of the applicant. Specifically, Mr. Pedracine recommended a job search with the assistance of a placement vendor, but the counselor Jones, instead went ahead and certified the retraining. Ms. Jones explained she rejected Mr. Pedracine's recommendation because the applicant had already done a substantial job search. March 2008 Transcript, page 63.
Ms. Jones' decision may be susceptible to second-guessing about how much a placement vendor could have helped the applicant. However, Ms. Jones's decision cannot reasonably be viewed as "interpretation of the vocational rehabilitation laws was so far outside the reasonable scope of interpretation as to be an abuse of administrative power."
Attorney Tony Welhouse
Attorney David L. Styer
Appealed to Circuit Court. Affirmed April 19, 2010. Appealed to Court of Appeals. Affirmed February 23, 2011 Oshkosh Corporation and Lumbermens Mutual Casualty Company c/o Kemper Services Company-Broadspire, v. LIRC and Daniel L. Nuetzel, 2011 WI App 42, 332 Wis. 2d 261, 796 N.W.2d 217
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(1)( Back ) This argument is also apparently dependent on the conclusion that it would be a reversible abuse of administrative discretion by the DVR under Massachusetts Bonding if DVR had found the applicant eligible for vocational retraining absent permanent work restrictions. See Steven Mand v. Quad Graphics, WC claim no. 93004055 (LIRC, January 18, 1995).
(2)( Back ) The commission acknowledges that it seems unreasonable to give an employee claiming vocational rehabilitation benefits the power to thwart the defense provided in Wis. Stat. 102.61(1g) by accepting an employer's good faith offer of employment but then engineering a discharge by deliberate misconduct. It was in recognition of a similar concern that the commission--with respect to the defense against loss of earning capacity awards based on an unreasonable refusal of job offer--stated that a discharge based on a analytic equivalent of an unreasonable refusal of an offer of work could be treated as such under Wis. Stat. 102.44(6)(g). Wellsandt v. Chippewa County, WC claim no. 93050745 (LIRC, November 27, 1998). But under the facts of this case, while the employee may not have been a model employee, he had worked for the employer for 22 years and had not been disciplined for sleeping on the job in the past. The commission declines to view his conduct as the analytic equivalent of a refusal of an offer work.