COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 13, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1896
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
VERNON SHIER,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW
COMMISSION, ADVANCED
AGRICULTURAL,
INC. and SHEBOYGAN
FALLS MUTUAL
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Brown County:
WILLIAM M. ATKINSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Vernon Shier appeals a circuit court order
that affirmed a decision of the Labor and Industry Review Commission dismissing
Shier's application for worker's compensation benefits. Because we conclude the department's
findings of fact are supported by credible and substantial evidence in the
record, we affirm.
FACTS
It is undisputed that
Shier injured his back in 1961, 1988 and 1991.
At the time Shier injured his back in 1988 and 1991, he was employed by
Advanced Agricultural, Inc., a retail seed business he owns. At the time of the 1988 injury, Sheboygan
Falls Mutual Insurance Company was Advanced Agricultural's worker's
compensation insurer. Shier recuperated
from his injury for nearly a year, during which he received temporary total
disability benefits from Sheboygan Falls.
Sheboygan Falls also paid Shier permanent partial disability benefits
totaling $8,190.
In 1989, Shier returned
to work, although his doctor placed restrictions on his activities. He continued to receive the same wage he was
earning on the date of his injury. In
1991, Shier injured his back again while lifting a bag of seed. At the time of the 1991 injury, the worker's
compensation insurer for Advanced Agricultural was Employer's Mutual of
Des Moines.
Shortly after the 1991
injury, Shier's doctor told him he could no longer work. Shier filed an application for hearing with
the Department of Industry, Labor and Human Relations, seeking total temporary
disability payments for the 1991 accident, as well as permanent total
disability and vocational loss. Shier's
application stated he had been injured in 1991 when he lifted a fifty-pound bag
of seed, and that he suffered a prior injury in 1988 when he slipped on the ice
while unloading a truck.
A hearing was scheduled
for the case involving the 1991 injury.
Shier asked the administrative law judge to rule that Sheboygan Falls
must participate in the hearing.
Although the ALJ's ruling on Shier's request is not in the record, it is
undisputed that the ALJ denied the request.
It further appears that a hearing on the 1991 injury was never held,
because Shier compromised his claim against Employer's Mutual for $62,000.
After he settled with
Employer's Mutual, Shier filed an application for a hearing on the 1988
injury. The ALJ held a hearing and
issued a decision denying Shier's claim for further compensation for loss of
earning capacity for the 1988 injury.
The ALJ noted in its decision that Sheboygan Falls had already conceded
permanent partial disability of 7%, so the sole issue before it was whether
Shier sustained a loss of earning capacity as a result of the March 24, 1988,
injury. The ALJ's findings of fact and
conclusions of law provide:
It is undisputed that applicant was injured on March 24, 1988 while
working for the respondent corporation, a retail seed business. On the date of injury, applicant was earning
$500 per week. After a lengthy
recovery, applicant was released to return to work by Dr. Gruesen on May 1,
1989 on a full-time basis with the following restrictions: avoid lifting more than 35 pounds and avoid
repetitive bending, twisting, and stooping.
It is undisputed that following his recovery, applicant returned to work
for the same employer at the same wage he was earning on the date of the
injury. In fact, he continued to
receive the same wage right up until his subsequent injury on April 16,
1991. It was not until after the
accident on April 16, 1991 that applicant terminated his employment because of
his physical limitations. It was not
until after the accident on April 16, 1991 that applicant's treating physician
disqualified applicant from the labor market after placing further additional
restrictions upon him.
In light of the foregoing, the Administrative Law Judge finds that
applicant sustained no loss of earning capacity as a result of his March 24, 1988
injury. Under the circumstances,
therefore, it is not necessary to determine the extent, if any, of applicant's
alleged loss of earning capacity.
If the injury of March 24, 1988 caused a loss of earning capacity,
presumably the physical limitations resulting from that injury had already
manifested themselves in the wage applicant was earning on April 16,
1991. See Neal and Danas, Worker's
Compensation Handbook, page 5-18 (3d. 1991). Yet the evidence is undisputed that applicant's wage remained the
same after the March 24, 1988 injury.
In pursuing his claim for permanent total disability benefits based upon
the date of injury of April 16, 1991, in case No. 91‑038682,
applicant presumably argued that the wage he was earning on April 16, 1991
already reflected any diminution in earning capacity caused by the March 24,
1988 injury. If that is not the case,
then on what basis did applicant claim he was permanently totally disabled as a
result of the April 16, 1991 injury?
Finally, with regard to applicant's assertion that the odd-lot doctrine
applies, the Administrative Law Judge further finds that but for the 1991
injury, it is pure speculation whether applicant would have quit his job
working for the respondent following the March 24, 1988 accident. So long as applicant remained employed with
the respondent at more than 85 percent of his March 24, 1988 wage, he had
no claim for loss of earning capacity, irrespective of whether he was
unemployable under the odd-lot doctrine.
See section 102.44(6)(a) and (b), Wis. Stats. Furthermore, the Administrative Law Judge finds that evidence
applicant returned to work for the respondent following the March 24, 1988
accident at his same wage, is, in itself, sufficient evidence to rebut the
application of the odd-lot doctrine.
Under all the circumstances, the record
reflects a legitimate doubt that applicant suffered a loss of earning capacity
as a result of the March 24, 1988 injury.
Upon the foregoing Findings of Fact, applicant's claim for benefits is dismissed.
Shier appealed and LIRC
affirmed the ALJ's decision, adopting its findings of fact and conclusions of
law as its own. Shier appealed and the
circuit court affirmed LIRC's decision.
Shier now seeks relief in this court.
ISSUES
The first issue concerns
the meaning of the ALJ's decision.
Shier interprets the ALJ's decision as a series of conclusions of law
which, Shier argues, are erroneous and should be reversed by this court. Conversely, Sheboygan Falls argues the ALJ's
decision is based simply on the facts; Shier failed to prove he sustained a
loss of earning capacity and, therefore, his claim was denied. LIRC agrees with Sheboygan Falls, but also
argues that even if the ALJ decided the case on legal grounds, the ALJ's legal conclusions
are correct. We agree with Sheboygan
Falls that the ALJ's decision to deny Shier's claim was based on factual
findings rather than legal conclusions.
We need not reach Shier's arguments that the ALJ misapplied the law with
respect to §§ 102.44(6)(a) and (b), Stats.,
the odd-lot doctrine and occupational disease.
However, we briefly address Shier's arguments that DILHR's
administrative rulings deprived him of his benefits, and that LIRC's decision
should be reversed because Shier suffers from an occupational disease.
STANDARD OF REVIEW
Our scope of review is
the same as the circuit court's, and we reach our decision without deference to
that court's decision. Goldberg
v. DILHR, 168 Wis.2d 621, 626, 484 N.W.2d 568, 570 (Ct. App.
1992). The law is well settled that the
determination of the cause and extent of the claimant's permanent disability
present questions of fact, Swiss Colony, Inc. v. DILHR, 72 Wis.2d
46, 58-59, 240 N.W.2d 128, 134 (1976), and that LIRC's findings thereon are
conclusive if supported by credible and substantial evidence. See Princess House, Inc. v.
DILHR, 111 Wis.2d 46, 54, 330 N.W.2d 169, 173-74 (1983). Therefore, we must affirm LIRC's factual
findings if they are supported by any credible and substantial evidence in the
record. L & H Wrecking Co. v.
LIRC, 114 Wis.2d 504, 508, 339 N.W.2d 344, 346 (Ct. App. 1983). We cannot substitute our judgment for that
of LIRC in respect to the credibility of a witness or the weight to be accorded
the evidence supporting any finding of fact.
West Bend Co. v. LIRC, 149 Wis.2d 110, 118, 438 N.W.2d
823, 827 (1989).
However, whether the
ALJ's decision is based on findings of fact or conclusions of law requires
interpretation of the ALJ's decision, which is a question of law we review de
novo. A mislabeled finding will be
treated by the reviewing court as what it is rather than what it is
called. Connecticut Gen. Life
Ins. Co. v. DILHR, 86 Wis.2d 393, 404-05, 273 N.W.2d 206, 211 (1979).
INTERPRETATION OF THE ALJ'S DECISION
LIRC adopted the ALJ's
findings and conclusions as its own, so we look to the ALJ's decision to
determine the basis upon which Shier's claim was denied. Shier argues the ALJ did not decide the case
based on questions of fact. Instead,
Shier argues, the ALJ decided that because he returned to work at Advanced
Agricultural at the same wage he earned when he left the job, his earning
capacity was not affected. We disagree.
We conclude for two
reasons that the ALJ actually decided the case based on findings of fact,
rather than conclusions of law. First,
the decision specifically cites evidence that Shier returned to work with
limited restrictions, earned the same wage and continued working until he had a
second accident. These are findings of
fact. This evidence addresses Shier's
previous work experience, previous earnings, present occupation and earnings
and likelihood of future suitable occupational change; these are all factors an
ALJ must consider under Wis. Adm. Code
§ Ind. 80.34 when
determining loss of earning capacity.
If the ALJ had decided as a matter of law Shier could not sustain a loss
of earning capacity if he returned to work without a 15% reduction in earnings,
there would have been no need to discuss specific evidence of Shier's ability
to continue working.
Second, the concluding
paragraph states: "[T]he record reflects a legitimate doubt that applicant
suffered a loss of earning capacity as a result of the March 24, 1988
injury." The term "legitimate
doubt" is part of the standard under which the department evaluates
evidence, not the law. See Bumpas
v. DILHR, 95 Wis.2d 334, 342, 290 N.W.2d 504, 507 (1980) (the
department has a duty to deny compensation only where the evidence raises a
legitimate doubt as to the existence of facts essential to establish a
claim). The ALJ's use of the term
"legitimate doubt" suggests the case was decided on factual grounds.
For these reasons, we
conclude the ALJ's decision reflected a finding of fact that Shier had failed
to establish the essential elements of his claim for compensation for loss of
earning capacity.[1]
REVIEW OF THE EVIDENCE
Next,
we must examine whether the ALJ's findings, as adopted by LIRC, are supported
by substantial and credible evidence in the record. See L & H Wrecking Co., 114
Wis.2d at 508, 339 N.W.2d at 346. Shier
argues the testimony of his physician, Dr. Robert Gruesen, is of critical
importance. Doctor Gruesen in his
deposition testified that 50% of Shier's current condition is attributable to
events that occurred before the 1988 injury.
Of the remaining 50% disability, Dr. Gruesen testified 70% of
Shier's present condition is due to the 1988 incident and 30% is due to the
soft tissue aggravation that occurred in 1991.
While we recognize that this testimony suggests Shier suffered a
debilitating injury in 1988 that could have resulted in a loss of earning
capacity, it is not conclusive evidence that Shier sustained any loss of
earning capacity; Dr. Gruesen did not offer an opinion as to loss of earning
capacity. Even if he had, there is
other evidence that suggests Shier's 1988 injury did not result in a loss of
earning capacity, or that any loss in earning capacity is attributable to
Shier's 1991 injury rather than his 1988 injury.
For example, Dr. Marvin
Wooten conducted an independent medical evaluation and concluded:
Based
on my review of medical records, it would appear that this patient has received
accumulative disability rating of 66 percent over the years, 55 percent of
which is referable to those injuries incurred prior to 1988, seven percent of
which is referable to his reinjury and surgical treatment in 1988, and the
final four percent of which is referable to his reinjury in May of 1991.
A vocational expert,
John Birder, also evaluated Shier, at Shier's request. Birder's report recognized that Shier
returned to work in 1989 with a 7% permanent partial disability due to the 1988
injury. Birder noted that after Shier
returned to work in 1989, "He apparently was able to do fairly well until
he again injured himself on April 6, 1991." Birder also concluded:
It should be noted that [at the examination] he walked with a pronounced
limp in his right leg and has been doing so since July 1991. ...
....
At this time, Mr. Shier has been unable to continue operating his
business as he had done prior to his most recent work related injury.
...
....
At the time of the [1991] injury, he was
earning $500.00 weekly. Since that
time, he reports that he is not earning anything ... it would appear that
Mr. Shier has sustained a loss of future earning capacity of approximately 50
to 55%. (Emphasis added.)
A second vocational
expert examined Shier to determine to what extent Shier sustained a loss of
earning capacity as a result of his 1991 accident. This expert, Steve Zanskas, also reviewed the reports of Dr.
Gruesen and another doctor who had examined Shier: Dr. James Gmeiner.
Zanskas concluded that using Dr. Gruesen's conclusions,
it
would be my opinion to a reasonable degree of vocational probability that Mr.
Shier has sustained a 50% loss of future earning capacity. Sixty per cent to 70% of this loss of
future loss of future earning capacity would be attributed to Mr. Shier's prior
condition and 30% to 40% would be attributed to the 4/16/91 incident as
indicated by Dr. Gruesen. (Emphasis
added.)
Zanskas
did not offer an opinion as to whether the loss of earning capacity
attributable to "Mr. Shier's prior condition" was due in any part to
the 1988 injury.
Zanskas also offered a
second conclusion:
Based
on Dr. Gmeiner's opinion that Mr. Shier experienced a temporary aggravation and
that no industrial permanency has occurred, it would be my opinion to a
reasonable degree of vocational probability that Mr. Shier has sustained no
future loss of earning capacity. (Emphasis added.)
Thus,
Dr. Zanskas concluded that using Dr. Gmeiner's opinion, Shier as of May 1992
had suffered no loss of earning capacity due to any injury.
This synopsis of
testimony reveals conflict of opinion among the doctors and vocational experts
regarding the extent of Shier's permanent injury and ability to work, and the
degree to which any loss of earning capacity could be attributed to the 1988
accident. The ALJ resolved this
conflict in favor of Sheboygan Falls, concluding, "[T]he record reflects a
legitimate doubt that applicant suffered a loss of earning capacity as a result
of the March 24, 1988 injury." We cannot
substitute our judgment for that of LIRC in respect to the credibility of a
witness or the weight to be accorded the evidence supporting any finding of
fact. West Bend Co., 149
Wis.2d at 118, 438 N.W.2d at 827. Based
on our review of the record, we conclude there is credible and substantial
evidence in the record to support LIRC's finding and therefore, we must affirm
LIRC's decision dismissing Shier's claim for benefits. See L & H
Wrecking Co., 114 Wis.2d at 508, 339 N.W.2d at 346.
THE DEPARTMENT'S RULINGS
Shier
argues the department's rulings deprived him of his benefits. Specifically, Shier argues that because he
filed his claim in 1991 listing the 1988 and 1991 injuries as the cause of his
permanent disability, Sheboygan Falls should have been required to participate
in the 1991 claim. Although there are
no documents in the record that detail the ALJ's decision, the ALJ had
apparently decided Sheboygan Falls need not participate. Even if we agreed with Shier that DILHR
erred, we must nonetheless reject his claim for some type of relief. Shier did not appeal the 1991 case, and we
cannot remand this case with instructions to consider the two claims together,
since Shier already settled his claim against Employer's Mutual.
SHIER'S CLAIM THAT HE SUFFERS FROM AN OCCUPATIONAL DISEASE
Shier argues he suffers
from an occupational back condition and that Sheboygan Falls is responsible for
the damage. He explains that he
asserted, presumably at the hearing, that permanent total disability benefits,
at a minimum, should be apportioned between Employer's Mutual and Sheboygan
Falls. However, he notes, the ALJ, LIRC
and the circuit court did not directly address the issue.
On appeal, Shier's
argument cannot afford him relief because we are affirming the ALJ's conclusion
that the record reflects a legitimate doubt that Shier suffered a loss of
earning capacity after the 1988 injury.
Thus, we never reach the issue of apportionment; there is nothing to
apportion because Shier did not prove a loss of earning capacity.
For the foregoing
reasons, we affirm the circuit court's order affirming LIRC's decision to
dismiss Shier's claim for compensation for loss of earning capacity.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
[1]
Because we conclude the ALJ's decision was based on findings of fact in
this case, we do not reach the legal issues raised by appellant. However, we reject LIRC's contention
advanced at oral argument that a worker who is injured and returns to work
earning 85% or more of his or her former wage cannot, as a matter of law,
receive compensation for loss of earning capacity if he is later unable to
work. The language of
§ 102.44(6)(b), Stats.,
indicates workers can return to work and, if they are unable to continue
working, can ask the department for compensation for loss of earning
capacity.
In reference to the multiple injury situation presented in this case, our initial examination of the law in this area suggests there is currently no bright-line rule that an applicant cannot sustain a loss of earning capacity for an earlier injury if he or she returned to work without a reduction in earnings and then suffers a second injury. Thus, if sufficient evidence was presented, an applicant could conceivably receive compensation for loss of earning capacity for the earlier injury. Such a result would appear to be consistent with the overall purpose of the Worker's Compensation Act.