Conway Freight, Inc./Conway Central Express v. LIRC ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 14, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1100 Cir. Ct. No. 2019CV5690
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
CONWAY FREIGHT, INC./CONWAY CENTRAL EXPRESS,
PLAINTIFF-APPELLANT,
V.
LABOR AND INDUSTRY REVIEW COMMISSION AND TIMOTHY J. ROTHE,
RESPONDENTS-RESPONDENTS.
APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
Before Brash, C.J., Dugan and White, JJ.
¶1 DUGAN, J. Conway Freight, Inc./Conway Central Express
(Conway Freight) appeals an order of the circuit court affirming a decision from
the Labor and Industry Review Commission (LIRC) in which Timothy J. Rothe
was awarded worker’s compensation benefits for an occupational injury that
No. 2020AP1100
resulted in Rothe’s permanent total disability. On appeal, Conway Freight argues
that LIRC’s decision must be reversed because the decision changed the causation
standard applicable in evaluating occupational injury cases without the authority to
do so, and improperly included a non-work related condition in the determination
that Rothe was permanently totally disabled. Conway Freight additionally argues
that the medical opinion that LIRC relied on in making its decision was
speculative and without foundation. Upon review, we affirm.
BACKGROUND
¶2 The following facts are taken from the findings of the administrative
law judge (ALJ) and LIRC. Rothe was born in 1957. He has a G.E.D. and
attended truck driving school. He began working for Conway Freight in
September 1989 as a truck driver and dock worker. He performed roughly the
same duties and responsibilities during his twenty-five years of employment at
Conway Freight, which primarily included loading, unloading, and transporting
freight to and from various pickup and delivery sites. He frequently lifted loads
weighing fifty pounds, and sometimes more. His tasks regularly required bending,
twisting, turning, climbing, and stooping. His last day of employment with
Conway Freight was August 18, 2014, and he has not returned to work at Conway
Freight or obtained alternate employment since that time.
¶3 Rothe began treatment for back pain in 2000, and he regularly saw a
chiropractor. In 2008, Rothe sustained a lower back injury at work while
maneuvering a converter dolly. He reported continued lower back pain and even
numbness on his right side following his injury, and about a month later, Rothe
sought medical treatment and was diagnosed with “discogenic disc disease” and a
herniated disc for which he received multiple steroid injections. The steroid
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injections successfully alleviated his pain, and Rothe continued working without
restrictions. However, Rothe returned to his doctor—an orthopedic surgeon—in
2011, complaining again of back pain and pain that radiated down his legs; at that
time, he opted to forgo surgery in favor of additional steroid injections. While
Rothe still continued to work without restrictions after receiving another round of
steroid injections, he reported experiencing pain while performing certain physical
tasks at work. In 2012, Rothe sought a second opinion from another orthopedic
surgeon regarding the possibility of back surgery, but Rothe again opted for
steroid injections. Rothe still reported increased pain with physical activities, such
as the lifting he performed while at work. Rothe then received more steroid
injections and regular chiropractic treatment throughout 2013 and 2014.
¶4 Rothe first saw Dr. James Lloyd, a neurosurgeon, in 2014 as a result
of the increasing pain in his back and legs. By the time Rothe first saw Dr. Lloyd,
Rothe was having difficulty walking and he would drag his feet when he walked.
Dr. Lloyd recommended that Rothe undergo back surgery, and Dr. Lloyd took
Rothe off work on August 18, 2014, in preparation for surgery. Rothe underwent
lumbar fusion surgery in February 2015, but his back pain continued and even
worsened following the surgery. Currently, Rothe drags his feet when he walks
and uses a cane for assistance. Rothe is unable to sit comfortably for any length of
time and has difficulty performing even routine tasks around the house.
¶5 Rothe filed an application in September 2014 for worker’s
compensation benefits related to the back injury he sustained on October 14, 2008;
Rothe subsequently filed an amended application in January 2017, alleging that he
had an occupational injury for which he was entitled to benefits. In particular, and
as relevant here, he alleged that his employment at Conway Freight contributed to
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the progression of a degenerative disc condition that ultimately required surgery
and that he had been rendered permanently totally disabled.
¶6 Attached to his amended application was a report from Dr. Lloyd 1 in
which Dr. Lloyd checked “Yes” in response to the following question:
To a reasonable degree of medical probability, Mr. Rothe’s
work exposure as a dock worker/truck driver at Con[w]ay
Freight for approximately 25 years (including an alleged
event on 10/14/08) was a material contributory causative
factor in the progression of his low back condition,
resulting in the need for the February 2015 surgical
procedure and resulting in permanent limitations?
In the space provided below, Dr. Lloyd then provided the following explanation of
his opinion: “Knowing that the standard indicating a workplace exposure as little
as 5% can be a material contributing causative factor, I make my judgment with a
reasonable degree of medical probability.”
¶7 In addition to Dr. Lloyd’s report, there was a letter from Rothe’s
counsel to Dr. Lloyd, in which Rothe’s counsel provided the following
explanation of the causation standard applicable to occupational injury claims:
As you know, an individual’s job duties/work exposure
does not have to be the sole cause of the disability; the law
makes the claim compensable if the exposure was a
“material contributory causative factor in the progression of
the disability.” Our Commission has further refined the
standard indicating that an exposure as little as 5% can be a
material contributory causative factor.
1
Dr. Lloyd’s report consisted of the standard LIRC form WKC-16-B entitled
Practitioner’s Report on Accident or Industrial Disease In Lieu of Testimony. Dr. Lloyd
completed the form and included an attachment consisting of a list of questions and responses to
those questions. The issue in this case focuses on the first question listed in the attachment.
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¶8 The application was set for a hearing on March 21, 2018, before ALJ
Nancy Schneiders. At the hearing, the parties presented reports and opinions from
Dr. Lloyd and Dr. William Monacci, Conway Freight’s expert, regarding Rothe’s
medical condition, its cause, and its resulting restrictions. Dr. Lloyd was of the
opinion that Rothe’s employment with Conway Freight was a material
contributory cause of Rothe’s condition. Dr. Monacci opined that Rothe’s
condition was due to a degenerative condition from aging and was not work
related. The Functional Capacity Evaluation (FCE) that was performed in January
2016 was presented, and Rothe testified.2
¶9 Overall, the FCE results indicated that “due to his unsafe blood
pressure when lifting 10 [pounds] and inability to tolerate prolonged sitting,
[] Rothe would be unable to tolerate even a Sedentary Physical Demand level for
an 8 hour day[.]” The FCE provided the following restrictions: “Due to unsafe
Blood Pressure: No lifting, pushing, pulling or climbing. Due to lumbar &
left/right lower extremity pain: 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.”
¶10 The parties additionally presented the opinions of vocational
experts—Michelle Albers for Rothe and Leanne Panizich for Conway Freight—
regarding the effect of Rothe’s medical condition and restrictions on his
employability. Relying on Dr. Lloyd’s restrictions and considering Rothe’s age,
education, and training, Albers concluded that “there are no jobs available to
2
The FCE was conducted by Advanced Manual Physical Therapy in order to evaluate
how Rothe would be able to meet the physical demands of his job duties.
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No. 2020AP1100
[] Rothe in the open and competitive labor market on either a full time or part time
basis” and “Rothe has suffered a total loss of earning capacity.” However, when
considering Dr. Monacci’s restrictions, Albers concluded that Rothe “has incurred
a loss of earning capacity in the range of 70 to 75%.” Relying on Dr. Monacci’s
restrictions, Panizich concluded that Rothe could maintain employment as an Uber
or Lyft driver or truck driver and suffered a 50% to 55% loss of earning capacity.
Panizich also stated that “Dr. Lloyd’s opinion would lead to a vocational
determination of permanent and total disability.” However, she dismissed many
of Dr. Lloyd’s restrictions as invalid and dismissed the results of the FCE.
Therefore, she reached the conclusion that Rothe would suffer “a 55 to 65% loss
of earning capacity” when considering the restrictions provided by Dr. Lloyd.
¶11 In a written decision dated May 8, 2018, ALJ Schneiders found that
Rothe suffered an occupational injury entitling him to worker’s compensation
benefits for a permanent total disability. In so doing, ALJ Schneiders adopted
Dr. Lloyd’s opinion on causation as the most credible, and found that Rothe’s
employment at Conway Freight was a “material contributory causative factor” in
Rothe’s condition, which ultimately required surgery and left Rothe permanently
totally disabled. ALJ Schneiders adopted the restrictions set out by Dr. Lloyd,
finding that Dr. Lloyd’s restrictions were “the most appropriate,” and thus, led to
the finding that Rothe was permanently totally disabled. ALJ Schneiders
described:
From the medical evidence submitted and my
personal observation of [Rothe] at hearing, it is clear that
he is very disabled. At hearing, he was unable to maintain
one position for any significant length of time. He
frequently alternated between sitting and standing. When
seated, he shifted around in his chair. He used a cane to
walk. As a result of his residual low back and lower
extremity symptoms, he takes Percocet and Gaba[p]entin
for pain and Trazodone for sleep—all on a daily basis.
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¶12 Conway Freight sought review of ALJ Schneider’s decision, and
LIRC affirmed her decision. In so doing, LIRC adopted ALJ Schneider’s findings
of fact and conclusions of law as its own. Expanding on ALJ Schneider’s finding,
LIRC stated:
The commission finds that [Rothe] performed very
physically demanding work for the respondent, and
performed significant amounts of lifting, twisting, turning,
stooping, bending, climbing, and reaching on a daily basis
over the course of his 25-year employment with the
respondent. The commission credits Dr. Lloyd that
[Rothe]’s appreciable period of workplace exposure was at
least a material contributory causative factor in the
progression of his degenerative lumbar condition that
resulted in his need for surgery.
¶13 LIRC also found that Rothe was permanently totally disabled. In so
doing, LIRC noted that both vocational experts opined that Rothe was
permanently and totally disabled under the restrictions provided by Dr. Lloyd.
LIRC also discredited the opinion provided by Panizich in which she suggested
that Rothe may not be permanently totally disabled. LIRC stated that Panizich
“misstated the FCE when she attributed a significant restriction solely to [Rothe]’s
high blood pressure.” Rather, LIRC understood that the FCE “found that
[Rothe]’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[.]” Thus, LIRC found “that [Rothe]’s inability to tolerate even
sedentary physical demands, which was in part based on his lumbar/lower
extremity pain, was a significant factor in determining that he was permanently
totally disabled.”
¶14 LIRC also dismissed Panizich’s opinion that Rothe could be a driver
for Uber or Lyft because “Panizich was not aware of [Rothe]’s testimony
regarding the problems he has driving or his computer illiteracy when she
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rendered her opinion, and those facts call into question the reliability of her
opinion that he could do this work.” Thus, LIRC said, “Given these problems
with [] Panizich’s opinion, the commission does not credit her opinion[.]”
¶15 LIRC ultimately concluded:
Based on the credible evidence in this case, the commission
does not have a legitimate doubt that [Rothe] is
permanently totally disabled. [Rothe] is in terrible physical
condition and has persistent pain requiring constant pain
medication. Given his age and physical condition, the
commission finds Dr. Lloyd’s restrictions to be reasonable.
Given the description of [Rothe]’s daily activities, his
instability walking, and constant pain medication, [Rothe]
does not appear able to lift 30 pounds on a regular basis, so
the commission does not credit Dr. Monacci regarding his
restrictions. Both vocational experts opined that [Rothe] is
totally disabled under Dr. Lloyd’s restrictions. The
commission finds that [Rothe] can only perform jobs which
are so limited in quality, dependability, and quantity that a
reasonably stable market does not exist; therefore, the
commission finds [Rothe] is permanently totally disabled.
¶16 Pursuant to WIS. STAT. § 102.23(1) (2019-20),3 Conway Freight then
filed a complaint in the circuit court seeking review of LIRC’s decision, and the
circuit court affirmed LIRC’s decision and denied Conway Freight’s petition.
Conway Freight now appeals.
DISCUSSION
¶17 “In an appeal following an administrative agency decision, we
review the agency’s decision, not the circuit court’s.” Beecher v. LIRC, 2004 WI
88, ¶22, 273 Wis. 2d 136, 682 N.W.2d 29. LIRC’s “factual findings are
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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conclusive as long as they are supported by credible and substantial evidence.”
Cargill Feed Div./Cargill Malt & AIG Cas. Co. v. LIRC, 2010 WI App 115, ¶13,
329 Wis. 2d 206, 789 N.W.2d 326; see also WIS. STAT. § 102.23(1)(a)1.
“Credible and substantial evidence is that which is ‘sufficient to exclude
speculation or conjecture.’” Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶48,
349 Wis. 2d 234, 833 N.W.2d 665 (citation omitted). LIRC’s “findings regarding
the determination, cause, extent and duration of a disability are findings of fact,
and are conclusive if supported by credible evidence.” Shelby Mut. Ins. Co. v.
DILHR, 109 Wis. 2d 655, 659, 327 N.W.2d 178 (Ct. App. 1982).
I. Occupational Injury
¶18 The first issue presented requires us to examine LIRC’s finding that
Rothe had an occupational injury caused by his employment with Conway Freight.
“An occupational disease is ‘acquired as the result and an incident of working in
an industry over an extended period of time.’” Id. at 661 (citation omitted). In
order for an occupational disease to exist, the occupation must be a “material
contributory factor” in causing the disease. See Wisconsin Ins. Sec. Fund v.
LIRC, 2005 WI App 242, ¶21, 288 Wis. 2d 206, 707 N.W.2d 293.
¶19 Conway Freight takes issue with LIRC’s finding that Rothe’s
employment at Conway Freight was a material contributory factor in Rothe’s
degenerative disc condition and need for surgery because, as Conway Freight
contends, LIRC changed the relevant causation standard without the authority to
do so. In making this argument, Conway Freight relies on the portion of
Dr. Lloyd’s report in which Dr. Lloyd explained his opinion saying: “Knowing
that the standard indicating a workplace exposure as little as 5% can be a material
contributing causative factor, I make my judgment with a reasonable degree of
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No. 2020AP1100
medical probability.” Conway Freight argues that Dr. Lloyd’s opinion “falls short
of this legal standard because a 5% contribution cannot be considered” a material
contributory factor, and as a result, LIRC was wrong to rely on Dr. Lloyd’s
opinion regarding causation.
¶20 We are not persuaded that LIRC changed the causation standard for
an occupational injury. In his report, Dr. Lloyd never attributes any percentage of
cause to Rothe’s employment at Conway Freight, and as such, Dr. Lloyd never
concluded that Rothe’s workplace exposure constituted only a 5% contributory
factor to Rothe’s back condition, as Conway Freight would have this court believe.
Moreover, we review LIRC’s finding on the matter, not Dr. Lloyd’s, and after
considering the nature of Rothe’s employment at Conway Freight, his medical
history, and medical opinions on the subject, LIRC found that Rothe’s
employment at Conway Freight was “at least a material contributing causative
factor in the progression of [Rothe’s] degenerative lumbar condition that results in
his need for surgery.” This is the proper standard, and LIRC’s finding regarding
cause is supported by credible evidence in the record.
¶21 We also will not substitute our judgment for that of LIRC’s in
finding Dr. Lloyd’s report on causation credible and in rejecting Dr. Monacci’s
report. See WIS. STAT. § 102.23(6); see also Wisconsin Ins. Sec. Fund, 288
Wis. 2d 206, ¶24 (“We do not reweigh the credibility of such evidence.”). “The
credibility of the doctors’ opinions is a matter entrusted to LIRC[.]” See Xcel
Energy Servs., 349 Wis. 2d 234, ¶52. Thus, we reject Conway Freight’s argument
on this issue, and we conclude that LIRC’s finding that Rothe suffered an
occupational injury caused by his employment at Conway Freight is supported by
credible and substantial evidence.
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II. Permanent Total Disability
¶22 The second issue presented requires us to examine LIRC’s finding
that Rothe was permanently totally disabled. An injured worker is entitled to
permanent total disability benefits when the injury results in “a total loss of
earning capacity.” Cargill Feed Div., 329 Wis. 2d 206, ¶18.
¶23 In Rothe’s case, LIRC applied the “judge-made adjunct” applicable
to certain claims of permanent total disability called the “odd-lot” doctrine, see id.,
¶19, and found that Rothe “established a prima facie case for permanent total
disability.” LIRC explained its finding stating:
Considering the factors in Wis. Admin. Code § DWD
80.34(1), [Rothe] has shown that, given his age, education,
training, previous work experience, and likelihood of future
suitable occupational change, he has sustained a loss of his
earning capacity. He sustained a significant occupational
low back injury that required surgery. That surgery was
not successful, and he is now on daily pain medication that
makes him drowsy, walks with a cane, and has significant
physical restrictions. His vocational expert has opined that
[Rothe] is permanently totally disabled. Under all of
[Rothe’s] restrictions adopted by Dr. Lloyd (and taking the
FCE restrictions at face value, as noted by [] Panizich),
both vocational experts opined that he was permanently
totally disabled.
We agree and conclude that LIRC properly found that Rothe was permanently
totally disabled under the “odd-lot” doctrine.
¶24 In Beecher, 273 Wis. 2d 136, ¶2, our supreme court explained:
The odd-lot doctrine is a judge-made adjunct to the
law of worker’s compensation. 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 odd-lot doctrine may qualify for
benefits even though they retain a small, residual capacity
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to earn income. In essence, the odd-lot doctrine provides
that some injured workers should be characterized as
permanently, totally disabled even though they are still
capable of earning occasional income.
(Footnote omitted.) The court further stated:
[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.
Id., ¶3 (emphasis omitted; citation omitted). “Whether a litigant has established a
prima facie case is a question of law.” Id., ¶22.
¶25 Conway Freight argues LIRC’s finding that Rothe was permanently
totally disabled improperly held Conway Freight responsible for Rothe’s inability
to work as a result of Rothe’s high blood pressure. In support, Conway Freight
relies on the FCE and argues that it was Rothe’s high blood pressure, not Rothe’s
back condition, that necessitated Rothe’s lifting restrictions assigned in the FCE
because the FCE evaluation had to be stopped when Rothe’s blood pressure went
dangerously high when he tried to lift a ten-pound object. Conway Freight also
argues that Rothe did not suffer from high blood pressure until after his final day
of employment at Conway Freight, and thus, it is not a condition for which it
should be held responsible.
¶26 First, we note that Conway Freight does not even mention, let alone
attempt to refute, LIRC’s argument that Rothe established a prima facie case for
permanent total disability under the odd-lot doctrine. Rather, it merely asserts that
LIRC improperly held Conway Freight responsible for Rothe’s inability to work
as a result of his high blood pressure. However, as noted above, under the odd-lot
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doctrine, we take Rothe as he is and assess his earning capacity based on the
factors set forth under the doctrine. See Travelers Ins. Co. v. DILHR, 85 Wis. 2d
776, 781, 271 N.W.2d 152 (Ct. App. 1978). In fact, when previously confronted
with “a middle-aged manual laborer” with “disabling silicosis,” we assessed the
individual, including non-work related conditions, and concluded:
The department was entitled to conclude that, in the
absence of a showing to the contrary, a middle-aged
manual laborer of limited education whose primary asset is
a body afflicted with disabling silicosis and who also
suffers from alcoholism, chronic bronchitis and
hypertension, is unlikely to find regular and continuous
employment.
Id. Thus, we conclude that, under the odd-lot doctrine, Rothe must be taken as he
is when considering his overall ability to find regular and continuous employment
after having sustained an occupational injury.
¶27 Here, Rothe was born in 1957, has no education beyond a G.E.D.,
and has been trained and worked as a truck driver and dock worker for decades.
The record also firmly establishes that Rothe suffered a debilitating back condition
that has imposed significant restrictions on his ability to sit, stand, bend, stoop,
and perform various other activities, which are required for the work that he has
been trained to perform, and these restrictions played a significant role in LIRC’s
finding that Rothe was permanently totally disabled. However, as LIRC also
recognized, Rothe’s medical records indicate that Rothe has encountered issues
with high blood pressure (also referred to in his medical records as hypertension)
“since at least August 18, 2000.” Thus, while Rothe’s back condition played the
primary role in determining that Rothe was permanently totally disabled, Rothe’s
high blood pressure was a part of his condition prior to his last day of employment
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with Conway Freight, even if Rothe was not on medications for his blood pressure
at that time.
¶28 Furthermore, while Rothe may have been able to perform
intermittent tasks for which he could secure temporary and intermittent
employment, “utter and abject helplessness” is not required for a finding of
permanent total disability under the odd-lot doctrine. See Balczewski v. DILHR,
76 Wis. 2d 487, 493, 251 N.W.2d 794 (1977) (citation omitted). Therefore, as
was the case in Travelers, LIRC was similarly entitled to find that given Rothe’s
age, limited education, limited training and experience in one area of employment,
and physical condition, it is unlikely that Rothe will secure any other continuing
and gainful employment. Accordingly, we conclude that LIRC appropriately
considered Rothe’s situation and physical condition as he is, and there is
substantial and credible evidence in the record to support LIRC’s finding that
Rothe was permanently totally disabled under the odd-lot doctrine.4
¶29 Moreover, as noted above, Conway Freight failed to address the
odd-lot doctrine in its briefing, and we, therefore, conclude that Conway Freight
conceded that Rothe established a prima facie case for permanent total disability
under the odd-lot doctrine. See United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (failing to refute a proposition
asserted in a response brief may be taken as a concession). Nevertheless, although
Conway Freight failed to mention, let alone address, the odd-lot doctrine, Rothe’s
4
We conclude that the odd-lot doctrine is dispositive on the matter of Rothe’s permanent
total disability. Therefore, we decline to address Conway Freight’s argument under Flug v.
LIRC, 2017 WI 72, 376 Wis. 2d 571, 898 N.W.2d 91, and its argument that its due process rights
were violated. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).
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prima facie case, and the fact that under the doctrine the burden shifted to Conway
Freight to show that Rothe was employable and there are jobs available to him in
its briefing, Conway Freight did introduce some evidence that can be interpreted
as applying to its own burden under the odd-lot doctrine. Thus, we address the
evidence introduced by Conway Freight in this regard. However, as explained
below, we conclude that Conway Freight failed to meet this burden.
¶30 Once Rothe established a prima facie case for permanent total
disability under the odd-lot doctrine, the burden shifted to Conway Freight to
show employability and the availability of jobs—in other words, it was up to
Conway Freight under these circumstances to demonstrate that Rothe is actually
employable and that there are actual jobs available to him. See Beecher, 273
Wis. 2d 136, ¶3.
¶31 The only evidence that Conway Freight introduced relating to
Rothe’s employability was the report of its vocational expert Panizich. In its
decision, LIRC addressed Panizich’s opinion regarding Rothe’s employability.
LIRC stated that:
Panizich opined that [Rothe]’s skills would allow him to
continue working, for instance, driving for car services
such as Uber and Lyft, in which case he could be expected
to earn about one-half his annual salary.… Under
Dr. Monacci’s restrictions (restriction of lifting 30 pounds
at waist level), [] Panizich opined that [Rothe] could pursue
alternative truck driving positions, including sedentary to
light categories.
However, LIRC found that her opinions were not credible. It stated:
However, that is not credible since [Rothe] has limitations
in his leg and foot for driving and cannot lift 10 pounds. If
he cannot sit for more than 30 minutes without excruciating
pain, he would not be able to drive to pick someone up,
wait for them, drive them to their destination, and then
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No. 2020AP1100
drive home safely. [Rothe] also testified that he was
“computer illiterate” and his “wife does the computers,” so
it is not likely that he would be able to navigate the digital
platform for either company.
(Footnote omitted.)
¶32 LIRC then noted that Panizich was not aware of Rothe’s testimony
regarding the problems he has driving or his computer illiteracy when she
rendered her opinion, and those facts call into question the reliability of her
opinion that he could do this work. It then stated that “[g]iven these problems
with [] Panizich’s opinion, the commission does not credit her opinion.” LIRC
then found that Conway Freight had not met its burden to rebut Rothe’s prima
facie case by showing that there are actual jobs available to Rothe.
¶33 Accordingly, we conclude that LIRC appropriately considered
Rothe’s situation and physical condition as he is, and there is substantial and
credible evidence in the record to support LIRC’s finding that Rothe was not
employable and there were no actual jobs available to him under the odd-lot
doctrine, and thus, he is permanently totally disabled under the odd-lot doctrine.
III. Dr. Lloyd’s Report
¶34 Conway Freight last argues that Dr. Lloyd’s restrictions are
speculative and without foundation. In making this argument, Conway Freight
points to the fact that Dr. Lloyd included a prediction that Rothe would miss work
as a result of his back condition and contends that these are not medical
restrictions because it is neither a physical nor a mental limitation resulting from
Rothe’s back condition. Conway Freight also takes issue with the fact that
Dr. Lloyd changed the restrictions without evaluating Rothe and without
considering Rothe’s self-reports of his condition.
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¶35 We reject Conway Freight’s attempt to discredit Dr. Lloyd’s opinion
as a means of overturning LIRC’s decision. Dr. Lloyd, having served as Rothe’s
neurosurgeon since 2014, had evaluated Rothe on several occasions and knew
Rothe’s condition well. Thus, Conway Freight’s argument that Dr. Lloyd did not
evaluate Rothe before imposing final restrictions is not persuasive.
¶36 Moreover, Dr. Lloyd’s final restrictions are consistent with those
listed in the FCE, and consequently are confirmed by the record. In the FCE, as a
result of his back condition, Rothe was restricted to “[o]cassional: standing,
walking and sitting with a break for each after 15 [minutes] and overhead
reaching; [r]are forward bending; [n]ever squatting, balancing, climbing or
forward bending” and, as a result of his blood pressure, he was restricted to “[n]o
lifting, no pushing, pulling or climbing.” Dr. Lloyd then adopted these restrictions
from the FCE and added that Rothe was limited to “working 4 hours per day/5
days per week, with no overtime; standing 30 minutes/hour; walking 30
minutes/hour up to 100 meters; sitting 30 minutes/hour; and driving 30
minutes/hour.” Dr. Lloyd also “estimated that [Rothe]’s condition would require 3
or more scheduled breaks per day, that [Rothe]’s condition would require him to
miss work 2 to 3 times/month, and that up to 33% of the time [Rothe]’s pain
would be severe enough to interfere with attention and concentration.”
¶37 Conway Freight’s argument that Dr. Lloyd’s restrictions are
speculative and lack foundation is also premised on Panizich’s criticism of the
validity of Dr. Lloyd’s restrictions. However, LIRC thoroughly discredited
Panizich’s opinion, and we will not substitute our judgment as to the credibility of
the evidence. See WIS. STAT. § 102.23(6). “The credibility of the doctors’
opinions is a matter entrusted to LIRC,” Xcel Energy Servs., 349 Wis. 2d 234,
¶52, and LIRC clearly chose to credit Dr. Lloyd’s opinion in the face of Panizich’s
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criticism. Thus, given Dr. Lloyd’s familiarity with Rothe’s condition and reliance
on and consistency with the FCE, we reject Conway Freight’s attempt to reverse
LIRC’s decision because Dr. Lloyd’s report is, as Conway Freight contends,
speculative and without foundation.
¶38 Furthermore, even setting aside the restrictions with which Conway
Freight takes issue, the remaining restrictions contained in Dr. Lloyd’s report are
sufficient to sustain a finding under the odd-lot doctrine that Rothe is unable to
find continuing and gainful employment, and demonstrate that Rothe was not able
to tolerate sedentary work. As LIRC found, and as supported by an abundance of
evidence in the record, it was Rothe’s “inability to tolerate even sedentary physical
demands, which was in part based on his lumbar/lower extremity pain, was a
significant factor in determining that he was permanently totally disabled.” Thus,
we reject Conway Freight’s attempt to discredit Dr. Lloyd’s opinion as a means of
overturning LIRC’s decision as unsupported by credible and substantial evidence.
CONCLUSION
¶39 In sum, we conclude that LIRC’s finding that Rothe sustained an
occupational injury as a result of his employment at Conway Freight is supported
by substantial and credible evidence in the record and such finding was not made
using an incorrect causation standard. We also conclude that LIRC appropriately
found that Rothe was permanently totally disabled under the odd-lot doctrine and
this finding is supported by substantial and credible evidence in the record.
Further, we conclude that Conway Freight has failed to discredit Dr. Lloyd’s
restrictions, and thus, we reject Conway Freight’s attempt to overturn LIRC’s
decision as unsupported by credible and substantial evidence.
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By the Court.—Order affirmed.
Not recommended for publication in the official reports.
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