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COURT OF APPEALS DECISION DATED AND RELEASED December
14, 1995 |
NOTICE |
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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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2094-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
EDWIN
SWEDLUND,
Plaintiff-Respondent,
v.
STATE
OF WISCONSIN
LABOR
AND INDUSTRY
REVIEW
COMMISSION,
Defendant-Co-Appellant,
UNITED
FIRE & CASUALTY
COMPANY
and K & S PAVING,
Defendants-Appellants.
APPEAL
from an order of the circuit court for Rock County: JOHN H. LUSSOW. Affirmed
and cause remanded.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
PER
CURIAM. The State of Wisconsin Labor
and Industry Review Commission (LIRC), K & S Paving, and United Fire &
Casualty Company appeal from a circuit court order reversing LIRC's decision,
which in turn set aside findings by an Administrative Law Judge (ALJ), who
found that Edwin Swedlund suffered a 50% loss of earning capacity. For the reasons set forth below, we affirm.[1]
BACKGROUND
On May 22, 1989,
Swedlund fell four feet from a paving machine, injuring his back and hip. He was then sixty-three years old. In 1992, a hearing was held before an
ALJ. Swedlund presented expert evidence
that he suffered a 70-80% loss of earning capacity. The employer, K & S Paving, and its insurer, United Fire and
Casualty Company (UFC), presented evidence that Swedlund's loss of earning
capacity was 0-12%, and he could work as a receptionist, a telephone operator,
a clerk, a dispatcher or an electronics assembler. The ALJ found Swedlund suffered a 50% loss of earnings
capacity. In so finding, the ALJ
specifically rejected UFC's claims that Swedlund could be a receptionist,
telephone operator, a clerk, a dispatcher or an assembler.
K
& S Paving and UFC appealed to LIRC, which set aside the ALJ's
determination. Instead, relying upon
UFC's vocational expert's report, LIRC found a 12% loss of earning capacity. Swedlund appealed to the circuit court,
which reversed LIRC. LIRC, K & S Paving
and UFC then appealed to this court. We
affirm the circuit court, and reverse LIRC's determination.
STANDARD OF REVIEW
In a worker's
compensation case, we review LIRC's decision, not that of the circuit
court. Stafford Trucking v. DILHR,
102 Wis.2d 256, 260, 306 N.W.2d 79, 82 (Ct. App. 1981). We will set the factual findings aside only
if LIRC acted without or in excess of its powers, or if the award was procured
by fraud, or if LIRC's findings do not support the order or award. Section 102.23(1)(e), Stats.
We examine the entire record to determine whether there is substantial
and credible evidence which could support the findings. Princess House, Inc. v. DILHR,
111 Wis.2d 46, 54-55, 330 N.W.2d 169, 174 (1983). We may set aside LIRC's order or award and remand the case to
LIRC if its order or award depends on any material and controverted finding of
fact that is not supported by credible and substantial evidence. Section 102.23(6). We conclude that LIRC's findings are not supported by credible
and substantial evidence.
ANALYSIS
In setting aside the
ALJ's finding, LIRC relied upon two factors:
First, that Swedlund had voluntarily chosen not to seek work which he
was medically approved to do, and second, he had chosen to retire. We consider each matter in turn.
Seeking work
In determining that
Swedlund failed to seek work, LIRC relied upon UFC's vocational expert's
report. We conclude that the UFC report
is incredible as a matter of law. For
this reason, it was error for LIRC to rely on the report. Stated otherwise, the report does not
furnish "credible and substantial" evidence under § 102.23(6), Stats., for LIRC's determination.
All
expert testimony in this appeal agrees that after his injury, Swedlund has been
restricted to sedentary work. He may
not lift more than a few pounds, and he may not twist or stoop or bend. He must have employment at which he can sit,
but he is unable to sit for extended periods without discomfort.
Further
uncontroverted evidence establishes that although Swedlund went as far as the
seventh grade in school, his actual educational achievement is far lower. Swedlund is in the third percentile for
spelling,[2]
the sixth percentile for reading and the sixteenth percentile for
arithmetic. His grade-level equivalents
in these skills are between third and fifth grade. His only vocational skills derive from a lifetime of on-the-job
training as a heavy equipment operator, truck driver and manual laborer. The uncontroverted evidence establishes that
he has a severe pre-existing speech impediment.
Despite
these academic, vocational and physical limitations, UFC's vocational expert
opined that Swedlund was fit for work as a receptionist, telephone operator,
clerk, assembler or dispatcher, even though he "could not be considered a
viable candidate for vocational training."
UFC's
vocational expert's report must be rejected.
A man with limited vocational skills, who is functionally illiterate,
functionally innumerate and cannot speak clearly, cannot realistically be
expected to function as a receptionist, telephone operator, clerk, assembler or
dispatcher. These jobs uniformly
require basic reading, writing and arithmetic skills. Further, several of these jobs (receptionist, telephone operator
and dispatcher) additionally require the ability to speak clearly.
Because
the report is incredible as a matter of law, it may not be the basis for any portion
of LIRC's determination. On remand,
LIRC must reconsider its award based only upon the balance of the record.
Retirement
LIRC determined that Swedlund is retired
because "he intends to preserve his social security benefits in their
entirety, and not reenter the competitive world of work within his
restrictions."[3] But there is no "competitive world of
work within [Swedlund's] restrictions."
He is an unskilled and illiterate, outdoor laborer, truck driver, and
heavy machinery operator with a speech impediment who has been restricted by
injury to sedentary work. To hold that
he must willingly forego tangible social security benefits for an illusory
"world of work" as a prerequisite to worker's compensation flies in
the face of reality, as well as Wisconsin case law.
As
our supreme court stated in Kohler Co. v. DILHR, 42 Wis.2d 396,
403, 167 N.W.2d 431, 434 (1967), we "can[not] agree that accepting social
security old age benefits moves one into a fixed class or category." In this case, Swedlund testified that he
would work if he could find something suitable. Swedlund's decision not to forego or compromise available social
security benefits in the absence of a realistic opportunity at a suitable job
does not bespeak a decision to "totally remove himself" from the job
market.
We
affirm and remand to the trial court with directions to remand to the
commission. On remand, LIRC shall
reconsider its determination without giving any consideration to UFC's
vocational expert's report.[4]
By
the Court.—Order affirmed and
cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[2] As the UFC report explains, this indicates
that 97% of the men in Swedlund's peer group have a higher spelling score.
[3] This finding is
a quote from UFC's expert's report in which she further states that her
"impression" is based upon a comment reported as follows: "[Swedlund] informed me that he wishes
to preserve his social security retirement benefits and did not want to
compromise the amount of said benefits in any manner."