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COURT OF APPEALS DECISION DATED AND RELEASED June 11, 1996 |
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. 95-2622
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
FREDERICK T. WEST,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION and
ROADWAY EXPRESS, INC.,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
JACQUELINE D. SCHELLINGER, Judge.
Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Frederick T. West appeals from the circuit
court order[1] affirming
the decision of the Labor and Industry Review Commission that concluded West was
80% permanently partially disabled.
West argues that the Commission erred in modifying the administrative
law judge's decision, which held that West was 100% permanently totally
disabled under the “odd-lot” doctrine.
We affirm.
West injured his back on
June 7, 1991, while working as a truck driver for Roadway Express, Inc. West began working for Roadway in 1965. He injured his back while moving a 55-gallon
drum that was filled with a liquid.
West was 63 when he was injured.
West had back surgery as a result of the injury. He never returned to work. He subsequently retired and reached his
healing plateau at 65.
The ALJ found that West
was permanently totally disabled under the “odd-lot” doctrine. The Commission, however, concluded that West
had not met his burden of establishing a prima facie case that he was
100% unemployable or, even if he had, that Roadway rebutted that showing by the
testimony of its vocational expert, Donald M. Modder. The Commission concluded that the vocational opinion of West's
expert was “too conclusory” because, while it did discuss West's medical
condition and employment history, it did not explain why West falls under the
“odd-lot” doctrine. The Commission also
noted that the functional capacity reports filed by the doctors who examined
West allowed him to work full-time, albeit with restrictions that the
Commission noted did not “alone make him unemployable.” Finally, the Commission noted that West
possessed the skills and could perform the jobs that Modder mentioned in his
report.
On appeal, this court
reviews the decision of the administrative agency, not that of the circuit
court. Wisconsin Pub. Serv. Corp.
v. Public Serv. Comm'n., 156 Wis.2d 611, 616, 457 N.W.2d 502, 504 (Ct.
App. 1990). We may “set aside the
commission's order or award ... if the commission's order or award depends on
any material and controverted finding of fact that is not supported by credible
and substantial evidence.” See
§ 102.23(6), Stats.; see
also General Casualty Co. v. LIRC, 165 Wis.2d 174, 178, 477
N.W.2d 322, 324 (Ct. App. 1991).
“Substantial evidence is evidence that is relevant, credible, probative,
and of a quantum upon which a reasonable fact finder could base a conclusion.” Cornwell Personnel Assocs., Ltd. v.
LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705, 707 (Ct. App. 1993). We will construe the evidence most favorably
to the Commission's findings of fact, id. at 544, 499 N.W.2d at
708, and we may not overturn the Commission's order if there is credible
evidence “sufficient to exclude speculation or conjecture.” General Casualty, 165 Wis.2d
at 179, 477 N.W.2d at 324.
“[T]he ‘odd-lot’
doctrine is a rule of evidence, and, once the claimant prima facie
proves 100 percent disability upon the basis of future unemployability, the burden
is upon the employer to rebut that prima facie showing and to
demonstrate ‘that some kind of suitable work is regularly and continuously
available to the claimant.’” Balczewski
v. DILHR, 76 Wis.2d 487, 497, 251 N.W.2d 794, 799 (1977) (citations
omitted). In the application of the
odd-lot doctrine for nonscheduled industrial injuries, proof of total and
permanent impairment of earning capacity is the critical factor in establishing
permanent total disability. Id. “If evidence of the degree of physical
disability coupled with other factors ‘such as mental capacity, education,
training, or age, establish prima facie that the employee will be unable to obtain regular and continuous
employment and is therefore in the “odd-lot” category,'” the burden then shifts
to the employer to show regular and continuous employment is available to the
claimant. Advanced Die Casting
Co. v. LIRC, 154 Wis.2d 239, 251-252, 453 N.W.2d 487, 492 (Ct. App.
1989).
West was born on
December 29, 1927. He completed tenth
grade and joined the military. After
World War II, he briefly entered college, but later dropped out. His employment history consists of working
as a police officer from 1952-1960 and subsequently working as a maintenance
man in a bakery. In 1965, West began
working for Roadway as a truck driver.
During the 1970s, West suffered a herniated disk and had back
surgery. He returned to work without
restrictions and worked until June 7, 1991.
Following his June 7,
1991 injury, West had a laminectomy and bilateral fusion on January 15,
1992. According to an estimated
functional capacity form dated December 8, 1992, Dr. Sam Nesemann stated that
West: could occasionally lift and carry up to ten pounds; could occasionally
push or pull while seated and reach above shoulder level; could never push or
pull while standing, bend, squat, crawl or climb; could sit for four hours per
day; could alternatively sit and stand for four hours a day; could stand for
two hours a day; and could walk for two hours a day. Dr. Nesemann also stated that West had a total restriction
against working at unprotected heights, a moderate restriction against driving,
and a mild restriction against being around machinery or being exposed to
changes in temperature and humidity. He
stated that these restrictions were permanent.
Dr. Nesemann also concluded in a separate practitioner's report that
West should engage in “[e]ssentially sedentary work only.”
West was also examined
on October 7, 1992, by Dr. Jerome Lerner.
Dr. Lerner opined that West had reached a healing plateau and could
perform sedentary activities. Dr.
Lerner further stated: “Beyond
sedentary activities, I would recommend that he be limited to occasional
lifting and carrying of a maximum of 10 pounds. He can stand and walk a maximum of two hours per day. He should avoid all bending, squatting,
twisting, crawling, pushing and pulling activities.” Dr. Lerner subsequently stated that West could “sit for 45
minutes every hour, following which he should be given the opportunity to stand
and move. He may be allowed to sit a
maximum of six hours per day.”
West was also examined
by Roadway's expert, Dr. William P. McDevitt, who stated: “I would rate [West]'s capabilities of
returning to work as doing no more than medium work with a lifting restriction
of 40 pounds and to avoid frequent bending, twisting and turning.” The estimated functional capacity form
filled out by Dr. McDevitt indicated that West could: frequently lift up to 20 pounds and occasionally lift up to 35
pounds; continuously reach above shoulder level; frequently push and pull while
seated and squat; that he could occasionally push and pull while standing,
bend, drawl and climb; and that he could continuously sit during an eight-hour
workday, but stand or walk only four hours.
West's vocational
expert, Henry M. Lenard, offered the following opinion based on the
restrictions imposed by Dr. Lerner:
1.The client is age 65, has primarily
been involved in the type of work which required him to do dexterous activities. Additionally, the restrictions imposed upon
him by Dr. Lerner would be considered substantial and indeed the only
opportunity that this person would have of becoming vocationally productive
would be through the processes of odd-lot.
2.Obviously
then the client is 100 percent disabled for any type of vocational activity
when one takes into consideration all of the factors which are bearing upon
this case.
Roadway's vocational
expert, Modder, noted that West had told him that he was not looking for work
and that “it's time I sat back.” Modder
also noted a number of “transferrable skills which would be useful in
identifying alternative, lighter employment,” which included: good eye-hand-foot coordination; knowledge
of interstate commerce and Department of Transportation rules; the ability to
read and follow written and verbal instructions; effective communication
skills; the ability to work independently; the ability to organize and
synthesize information, knowledge and experience in police work, military and
veterans affairs, and union activities; knowledge of electrical and mechanical
systems; and the ability to effectively use power and hand tools.
Modder concluded that in
light of the physical restrictions imposed by Drs. Lerner and Nesemann,
although West would have a “constricted labor market to choose from,”
nevertheless he could seek employment in such jobs as telephone solicitor,
expediter, dispatcher or travel agent.
Using Dr. McDevitt's restrictions, Modder concluded that West could seek
employment in such jobs as traffic agent, credit collector, messenger, parts
clerk or guard. Modder testified that
these jobs “exist on a continuing basis” in the Milwaukee area job market. Modder also concluded that based on the
physical restrictions imposed by Drs. Lerner and Nesemann, West suffered a
65-75% loss in earning capacity, and based on the physical restrictions imposed
by Dr. McDevitt, West suffered a 55-65% loss in earning capacity.
Finally, West testified
that but for his injury, he would have worked until 1995 in order to increase
his pension by an additional $600 a month.
West's testimony about his pain and physical abilities was consistent
with the opinions of his doctors. In
addition to the $2,500 he receives monthly for his pension and social security,
West receives approximately $100 a month for expenses for volunteer work he
does for the VFW. Finally, West also
testified that he did not believe he could work.
Review of the record
amply supports the Commission's order.
At the outset, we reject West's argument that “[t]he Commission's main
reason for finding that Mr. West had not sustained his burden of proof in
regard to the odd-lot doctrine was that he had not engaged in a work search,”
which he alleges improperly shifted the burden of proof from Roadway to
him. Although the Commission's order
notes that “[West's] failure to look for work undercuts his ability to show
that no work is available to him,” the order also reflects that the Commission
properly considered West's failure to seek employment as but one of many
factors in determining loss of earning capacity. See Wis. Admin.
Code § Ind. 80.34.
West has failed to meet
his burden on appeal, which requires him to show that there was no evidence to
support the Commission's findings or that the evidence was so lacking that no
reasonable person could reach a decision based on it. Advance Die Casting, 154 Wis.2d 239 at 249-250, 453
N.W.2d at 491. Modder identified
numerous sedentary jobs that exist in the Milwaukee area that West would have a
reasonable opportunity of being hired to do in light of his skills and despite
his physical restrictions. Modder also
testified that an older worker also provides advantages to an employer by
virtue of a stable work history, a strong work ethic and substantial practical
experience. The Commission accurately
noted that the doctors' reports do not preclude West from working, despite the
imposition of various physical restrictions.
Finally, the Commission was correct in characterizing Lenard's report as
“conclusory” because his report does not explain why West would fall into the
category of 100% future unemployability.
Therefore, we affirm the circuit court's order affirming the Commission's
decision.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.