On June 28, 2019 the Labor and Industry Review Commission (LIRC) affirmed a decision of the administrative law judge awarding applicant permanent total disability.

In Timothy J. Rothe v. Con-Way Freight, Inc. (LIRC, 2017-003735),  applicant filed an occupational disease claim alleging that his work exposure over a 25 year period caused or was a material contributory causative factor in the onset or progression of his degenerative disc disease at L3-4 and L4-5 that resulted in a lumbar fusion and permanent restrictions that the employer could not accommodate. The alleged date of injury was the last day applicant worked for the employer, August 18, 2014.

The primary issues for LIRC were the extent of the applicant’s disability and whether liability should be apportioned due to non-work related high blood pressure.

Applicant underwent an FCE at the end of healing. The FCE indicated that due to applicant’s unsafe blood pressure when lifting 10 pounds and inability to tolerate prolonged sitting, applicant was unable to tolerate even a sedentary physical demand level. Due to unsafe blood pressure, the FCE delineated the following restrictions: No lifting, pushing, pulling, or climbing. Due to lumbar pain, the FCE delineated the following restrictions: Occasional standing, walking, and sitting with a break for each after 15 minutes and overhead reaching. Rare forward bending. Never squatting, balancing, climbing, or forward bending. Additional restrictions were imposed for the knees and left elbow.

The treating physician assessed a 20% PPD rating and adopted the restrictions as set for the in the FCE. He also imposed additional restrictions.

Applicant’s vocational counselor opined that, based upon the treating doctor’s permanent restrictions, the applicant had a total loss of earnings capacity.

The employer’s IME physician rejected the FCE findings based upon a lack of objective findings and rendered a 20% PPD rating.

Employer’s vocational counselor indicated that the FCE restrictions pertaining to the back as well as the more restrictive limitations added by the treating doctor would not preclude applicant from employment and resulted in a 55%-65% loss in earnings capacity. Employer’s vocational counselor indicated that only the FCE restrictions relative to high blood pressure would preclude applicant from employment.

Employer argued, in reliance on the opinion of its vocational counselor, that only the restrictions due to high blood pressure, and not those for the back, precluded employment, and that they should not be considered when determining permanent total disability. LIRC, however, determined that employer’s vocational counselor misstated the FCE.

It noted that the FCE found that the applicant’s inability to tolerate even sedentary physical demands was based on his unsafe blood pressure when lifting 10 pounds and also his inability to tolerate prolonged sitting, which was due to his lumbar pain.   The court noted that the only restrictions due to unsafe blood pressure were no lifting, pushing, pulling or climbing. It found that the applicant’s inability to tolerate even sedentary physical demands, which was in part based on his lumbar pain, was a significant factor in determining permanent total disability.

Employer also argued that LIRC could not include restrictions relating to applicant’s non-work related personal health conditions (high blood pressure, elbow, knee) when determining permanent total disability.  LIRC did not agree, noting that because this is an occupational disease (progressive over time) claim,  there is no appointment of liability between the disease and any other disability or disease condition if: 1) the other disability or restrictions due to the disease condition preexisted or are contemporaneous with the date of injury for the occupational disease, or 2) if the occupational disease or its assessment or treatment caused or exacerbated the other disability or the restrictions for the disease condition. LIRC determined that in these situations, employers take their employees as is.

Here, LIRC determined that applicant’s high blood pressure disability or disease condition preexisted or was at least contemporaneous with the applicant’s occupational disease disability, and that the employer was required to take the applicant “as is” with the high blood pressure when determining disability.

LIRC’s decision underscores the importance for employers to carefully scrutinize language in FCE reports and ensure that its vocational counselors render opinions based upon a thorough and complete understanding of the FCE.  In this case the mere placement of the word “and” in the FCE report provied LIRC with something to hang its hat on when refuting employer’s argument that it was only the high blood pressure restrictions that made applicant unemployable.

Additionally, LIRC’s decision makes it clear that, in occupational disease claims, only restrictions/disability relating to an applicant’s non-work related personal health condition that arise after a date of injury will be considered for apportionment purposes.

Thanks to Partner Scott McCain for the thorough review of this development. Scott represents the firm’s clients from the Chicago, Illinois and Milwaukee, Wisconsin offices.