GTC Auto Parts v. Labor and Industry Review Com'n

Decision Date29 June 1993
Docket NumberNo. 92-3184,92-3184
Citation178 Wis.2d 129,503 N.W.2d 363
PartiesGTC AUTO PARTS and American Mutual Insurance Co., Plaintiffs-Appellants, d ] v. LABOR AND INDUSTRY REVIEW COMMISSION and James S. Bartosh, Defendants-Respondents.
CourtWisconsin Court of Appeals

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

GTC Auto Parts and its insurer, American Mutual Insurance Company (collectively, GTC), appeal the decision and order of the Labor and Industry Review Commission upheld upon review by the circuit court. GTC maintains that LIRC exceeded its authority when it ordered temporary total disability payments for an indefinite future period to its former employee, James Bartosh. GTC also contests LIRC's finding that it waived a right to claim credit for overpayment of benefits for a nine-month period in 1989. We affirm.

Bartosh, employed as an auto machinist, was injured in April 1988 while lifting an engine block. He felt pain in his right leg but continued to work for a period of time. His condition deteriorated, and he sought medical treatment, was subsequently hospitalized, placed in traction and received physical therapy and a CT scan. An orthopedist determined that Bartosh had sustained a herniated disc and performed a diskectomy. The operation was not successful, and Bartosh experienced increasing lower back pain. He underwent physical therapy, but was unable to do the recommended exercises. An MRI revealed that Bartosh suffered abnormalities both above and below the area of his disc surgery, with accompanying complications. After a "work hardening" program did not alleviate the pain, he sought a second medical opinion regarding the advisability of further surgery. A specialist at the University of Minnesota Hospitals Low Back Center recommended a three-level spinal fusion.

GTC hired a vocational consultant, who assisted Bartosh in an attempt to secure a job within the physical restrictions set by Bartosh' physician. Despite a "fairly extensive job hunt" over a period of three months, he received no offers. Bartosh underwent a vocational evaluation at the University of Wisconsin-Stout that recommended retraining over a period of years. This recommendation was supported by GTC's vocational expert, but GTC "was not interested in funding the program" and terminated the services of its consultant.

In August 1989, Bartosh sought assistance from the Wisconsin Department of Vocational Rehabilitation to become self-employed as a cabinetmaker and furniture builder. With the DVR's assistance and the approval of his physician, Bartosh began this work in the spring of 1990. Within a short time, however, Bartosh experienced severe back pain and intermittent leg pain. Bartosh gradually scaled back his work time, and his physician concluded that he was "disabled from gainful employment" in June 1990.

Bartosh underwent another MRI and a discography to determine his condition. His doctor advised that Bartosh could "live with the pain" or have a three-level fusion with no guarantee that the operation would allow him to return to work, and only a 25% chance of improvement.

The administrative law judge found that neither Bartosh nor GTC had established that the disability was permanent. He therefore denied Bartosh' claim for permanent total disability and GTC's request for an order for permanent partial disability. LIRC approved the ALJ's decision, as well as the conditions by which the issue of permanency will be determined. LIRC found that GTC is "not interested in funding applicant's retraining," that "applicant preferred to return to self-employment" and that he was "clearly open to vocational training." LIRC's memo opinion also states Despite this, the fact that a vocational evaluation done at the University of Wisconsin-Stout indicated that applicant had very strong potential in many areas for retraining, and the efforts of respondents' own vocational consultant, respondents made absolutely no commitments and did absolutely nothing to support applicant's vocational efforts once a sixty to ninety day search for a job, without additional training, had failed.

LIRC's order approving the ALJ's decision provides that (1) if GTC does not offer funds for retraining as recommended by the various experts and Bartosh elects not to have surgery so that his condition remains unchanged, he will remain on temporary total disability indefinitely; (2) if GTC offers the funding and Bartosh declines to participate without medical reason, the skills that he could have acquired will be imputed to him and the order modified accordingly; or (3) if GTC offers the funding and Bartosh is physically unable to participate, LIRC will declare him permanently totally disabled.

GTC contends that because under the Worker's Compensation Act temporary total disability is payable only until the end of the healing period, sec....

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2 cases
  • Conradt v. Mt. Carmel School, 94-2842
    • United States
    • Wisconsin Court of Appeals
    • September 27, 1995
    ...Comm'n, 36 Wis.2d 48, 153 N.W.2d 81 (1967); Burton v. DILHR, 43 Wis.2d 218, 168 N.W.2d 196 (1969); and GTC Auto Parts v. LIRC, 178 Wis.2d 129, 503 N.W.2d 363 (Ct.App.1993), rev'd on other grounds, 184 Wis.2d 450, 516 N.W.2d 393 In particular, Conradt cites the language in Falke that a credi......
  • GTC Auto Parts v. Labor and Industry Review Com'n
    • United States
    • Wisconsin Supreme Court
    • June 7, 1994
    ...TTD benefits indefinitely, without regard to his medical condition. The court of appeals affirmed the order of the circuit court, 178 Wis.2d 129, 503 N.W.2d 363. GTC and American Mutual petitioned for a review of the court of appeals' decision. We accepted this petition and now reverse the ......

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