Beecher v. Labor & Industry Review Commission, 2004 WI 88 (WI 6/29/2004)
| Citation | 2004 WI 88 |
| Decision Date | 29 June 2004 |
| Docket Number | No. 02-1582.,02-1582. |
| Parties | Ralph E. Beecher, Plaintiff-Appellant, v. Labor & Industry Review Commission, Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, Defendants-Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
Appeal from the Circuit Court, Kenosha County, Michael Fisher, Judge.
REVIEW of a decision of the Court of Appeals. Affirmed. 2003 WI App 100, Reported at: 264 Wis. 2d 394, 663 N.W.2d 316, (Ct. App. 2003-Published), (L.C. No. 01 CV 1356).
For the defendant-respondent-petitioner, Labor and Industry Review Commission, the cause was argued by Stephen M. Sobota, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
For the defendant-respondent-petitioner, Outokumpu Copper Kenosha, Inc., and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, there were briefs by Scott E. Wade, William R. Sachse, Jr., Jessica M. Vianes, Heidi M. Biasi and Peterson, Johnson & Murray, S.C., Milwaukee, and oral argument by Scott E. Wade.
For the plaintiff-appellant there was a brief by Daniel J. Kelley and Schoone, Leuck, Kelley, Pitts & Knurr, S.C., Racine, and oral argument by Daniel J. Kelley.
¶1
In this case we revisit the socalled "odd-lot doctrine," an aspect of worker's compensation law dealing with cases of permanent total disability. The issue presented is whether a prima facie case for permanent total disability under the "odd-lot" doctrine must include evidence that the injured employee has made a reasonable effort to find suitable post-injury employment.
¶2 The odd-lot doctrine is a judge-made adjunct to the law of worker's compensation.1 It represents a modification of the general rule that benefits for permanent total disability compensate an injured worker for loss of earning capacity. Whereas most recipients of permanent total disability benefits have lost all capacity to earn income, claimants under the oddlot doctrine may qualify for benefits even though they retain a small, residual capacity to earn income. In essence, the oddlot doctrine provides that some injured workers should be characterized as permanently, totally disabled even though they are still capable of earning occasional income.
¶3 We recognized the odd-lot doctrine in Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977):
"Total disability" in compensation law is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial.
Id. at 493 (quoting 2 Arthur Larson, Workmen's Compensation Law, § 57.51, at 10-107).2 The doctrine operates as a rule of evidence:
[W]here a claimant makes a prima facie case that he has been injured in an industrial accident and, because of his injury, age, education, and capacity he is unable to secure any continuing and gainful employment, the burden of showing that the claimant is in fact employable and that jobs do exist for the injured claimant shifts to the employer.
¶4 The Labor & Industry Review Commission (LIRC) argues that two enactments since our adoption of the odd-lot doctrine in Balczewski require us to re-evaluate how the Balczewski burden-shifting framework is applied. In 1985, the legislature enacted Wis. Stat. § 102.17(7)(a)(2001-02),3 which authorizes the Department of Workforce Development (DWD) to receive and consider expert evidence on loss of earning capacity. In 1982, an administrative rule, DWD § 80.34, was adopted; it specifies factors the DWD is to consider in determining loss of earning capacity. One of these factors is the claimant's "efforts to obtain suitable employment."
¶5 LIRC does not explain precisely how the enactment of Wis. Stat. § 102.17(7)(a) requires this court to modify the Balczewski odd-lot doctrine. With respect to DWD § 80.34, LIRC argues that because the administrative rule lists "efforts to obtain suitable employment" as one of the factors the DWD considers in determining loss of earning capacity, we should modify the formula for a prima facie odd-lot case under Balczewski so that the claimant is required to demonstrate that he has made a reasonable job search as part of his prima facie case.
¶6 We disagree, and hold that a claimant is not required to present evidence of a job search as part of prima facie case of odd-lot unemployability, provided the claimant shows that because of his injury and the other Balczewski factors such as age, education, capacity, and training, he is unable to secure continuing, gainful employment. If the claimant succeeds in putting himself within the odd-lot category, it falls to the employer to rebut the prima facie case by demonstrating that the claimant is employable and that jobs exist for him. In this case, LIRC concluded that the employee, Ralph Beecher, failed to make a prima facie case for odd-lot unemployability in part because he did not make enough effort to find a new job. In reaching this conclusion, LIRC placed an evidentiary burden on Beecher that was not required of him, and we therefore affirm the court of appeals' reversal of LIRC's decision.
¶7 Our recitation of the facts is based upon the agency record, including the Findings of Fact and Conclusions of Law of the DWD Administrative Law Judge, Leonard E. Martin, and the subsequent LIRC decision. Beecher was born in 1942 and has a ninth-grade education. He worked for Outokumpu Copper Kenosha, a foundry, or its corporate predecessors, for 29 years. At the time of his injury, Beecher was working on a "Z-Mill" machine, which runs sheets of metal from one large roll to another roll or a spool. The work required Beecher to lean over the first roll and thread the metal into a slit on the second roll. The job required bending over to pick up the sheets of metal, and then pulling them in order to thread the sheets onto the rolls. By all accounts, the work was strenuous.
¶8 On April 7, 1997, Beecher developed sharp pains in his lower back, and sought medical treatment with Dr. Christopher Noonan, an orthopedist. Dr. Noonan had treated Beecher for back problems in the past, and had performed two prior surgeries on Beecher. Beecher's back pains continued and Dr. Noonan eventually performed a third surgical procedure on Beecher's lower back on September 10, 1997.
¶9 Beecher returned to light duty work in April 1998, but after two weeks Outokumpu ran out of work for him and he ceased working. Beecher has not returned to work since that time. Outokumpu moved its operations out of Wisconsin and did not offer to relocate Beecher.
¶10 In September 1999, Beecher filed an application for a hearing at DWD pursuant to Wis. Stat. § 102.17, alleging that his day-to-day work activities up to April 7, 1997, caused a progression of his pre-existing back condition, leading ultimately to his surgery. He sought temporary total disability benefits from October 14, 1998, to May 14, 1999, permanent partial disability benefits on a functional basis at 15 percent to the body as a whole, permanent disability on a vocational basis for loss of earning capacity, and payment of medical expenses.
¶11 Administrative Law Judge Martin evaluated Beecher's claims on the basis of reports and testimony from several medical and vocational experts. Beecher himself also testified at the hearing. The expert evidence in this case is complex. While we may safely pass over many of its details, the following is a brief description of the experts' conclusions.
¶12 Beecher relied upon two medical experts: Dr. Noonan, his orthopedist, and Dr. Richard Karr, who examined Beecher in April and July 1998. Dr. Noonan assessed Beecher at 15 percent permanent partial disability based upon his injury. Dr. Karr assessed Beecher at a minimum of ten percent permanent partial disability. Outokumpu offered the report and testimony of Dr. Thomas O'Brien, who examined Beecher in July 1997 and again in September 1998. Dr. O'Brien opined that Beecher suffered no new injury in April 1997, but only a manifestation of symptoms from his pre-existing condition.
¶13 Beecher and Outokumpu each also presented evidence from vocational experts. Beecher's expert was Charles McReynolds. McReynolds testified that Beecher tested at the sixth-grade level for math, the seventh-grade level for reading, and the fifth-grade level for spelling. McReynolds testified that Beecher is not a candidate for retraining, based on his aptitude. McReynolds also testified that if Dr. O'Brien's medical assessment was correct, Beecher's loss of earning capacity would be approximately 20 percent. But if Drs. Karr and Noonan were correct, McReynolds concluded, then at best Beecher could do light duty work. McReynolds opined that given Beecher's age, educational level, previous training, and nonsuitability for retraining, no stable labor market existed for the limited type and amount of work Beecher was able to do. McReynolds therefore concluded that Beecher was permanently and totally disabled from a vocational standpoint.
¶14 Outokumpu's vocational expert was Leanne Panizich, who tested Beecher at the "high school level" for reading and the sixth-grade level for arithmetic and spelling. Panizich opined that if Drs. Noonan and Karr were correct in their medical assessments, then Beecher would suffer only a 25 to 35 percent reduction in earning capacity, as he could perform light duty work for employers in Wisconsin. If O'Brien's medical assessment was accepted, however, the reduction would be ten to 20 percent. Panizich said it was rare to encounter an employer these days who would not accommodate Beecher's disability.
¶15 Judge Martin found Beecher's medical experts more credible than Outokumpu's, and awarded Beecher...
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