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Hubatch v. Labor and Industry Review Commission9/19/2000
APPEAL from a judgment of the circuit court for Milwaukee County: DAVID HANSHER, Judge.
Affirmed.
. Gregory Hubatch appeals from the circuit court's judgment affirming the order of the Labor and Industry Review Commission (LIRC), which denied his claim for vocational rehabilitation. On appeal, Hubatch argues that LIRC erroneously concluded that, contrary to his testimony, he was offered DVR assistance in 1986 and he chose not to pursue his claim within the time limits found in Wis. Stat. ยง 102.61(1) (1997-98), and, as a consequence, he was ineligible for rehabilitation benefits in 1996. We disagree and, therefore, affirm.
I. Background.
. Hubatch began his employment with Miller in 1976 as a forklift driver. On November 11, 1981, Hubatch severely injured his back while attempting to lift a heavy ramp with a co-employee. Dr. Jacques Hussussian diagnosed Hubatch's injury as a herniated disc requiring surgery. Dr. Hussussian performed a laminotomy and discectomy on Hubatch and, after approximately six months of recovery, Hubatch returned to work in 1982. For the first six months following his return he performed light duties. Although Dr. Hussussian ultimately assigned Hubatch five percent permanent partial disability, Hubatch eventually returned to his regular duties as a forklift driver.
. As a member of Brewery Worker's Union Number 9, Hubatch was involved in a worker strike that lasted from June 1983 until September 1983. Following the strike, Hubatch was laid off until 1988. During this five-year layoff, Hubatch was employed in various unskilled or semi-skilled jobs.
. In 1986, while laid off from Miller, Hubatch applied for services from the Department of Vocational Rehabilitation (DVR). Although the record of Hubatch's contact with DVR in 1986 has been destroyed, Hubatch testified that, in an effort to help him find a job, DVR gave him various tests to ascertain his interests. Also, Dr. Hussussian's office notes dated 6/19/86 indicate that DVR asked him to evaluate Hubatch for purposes of his vocational rehabilitation. Hubatch claimed that DVR did not offer him additional schooling or offer him retraining at that time.
. Hubatch returned to work at Miller in 1988, but remained subject to periodic layoffs. After returning to work, Hubatch continued to perform his normal duties as a forklift driver. However, in 1991, after Hubatch complained of continuing back problems, Dr. Hussussian increased Hubatch's permanent partial disability from five percent to ten percent. The doctor also suggested that Hubatch observe a fifty-pound lifting restriction and that he avoid repetitive bending, lifting, pushing and pulling. Despite the increase in permanent partial disability and suggested restrictions, Hubatch continued to perform his normal duties as a forklift driver.
. In 1996, Miller informed Hubatch and other brewery workers that the work force was being restructured. Miller decided to downsize its brewery workforce and offered severance and/or retirement packages to the workers affected by the downsizing. Members of Hubatch's union who rejected the offer would not be guaranteed alternative employment with Miller, but would retain their seniority if the workers were called back to their previous jobs. In the event the workers were not called back, they would be given preferential status to interview for other job openings as they occurred. Hubatch chose to accept the severance package under which he received approximately $22,000 in exchange for the termination of his employment.
. Following his severance, in November 1996, Hubatch again applied to DVR for benefits. Hubatch's DVR counselor,
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