KENNETH HERMERSMANN, Applicant
WABASH ALLOYS, Employer
PACIFIC EMPLOYERS INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 13, 2006. Wabash Alloys and Pacific Employers Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. The sole issue before the commission is the applicant's claim for the cost of the medication Xolair, which is claimed as a reasonably required medical expense in accordance with a limited compromise agreement approved by the department on January 29, 2004.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
The applicant, whose birth date is December 14, 1949, was employed with the employer for 31 years. His last day of work was December 1, 2001. He began this employment as a general laborer and subsequently moved into maintenance. His duties in maintenance included operating a jackhammer to clean hardened aluminum slag off the sides of a furnace and off large ladles. In 1973, a copper pipe broke causing liquid chlorine to pour into the employer's furnace room, and all employees were evacuated. The applicant and a co-worker were given a breathing mask attached to a charcoal canister and sent in to stop the leak. It took them a significant amount of time to accomplish this, and when the applicant came back outside he had extreme difficulty breathing and was coughing up blood. He was hospitalized for approximately one week but recovered without ongoing symptoms.
In 1988, the applicant was diagnosed with pleural fluid after an abnormal pulmonary function study, and ultimately underwent a decortication of the right lung. This was considered to be related to asbestos exposure.
In 1989, the applicant was hospitalized after being overcome at work with fumes from paint and paint thinner. However, the applicant recovered without ongoing symptoms.
On or about October 22, 1991, another chlorine leak occurred at work exposing the applicant to a significant amount of chlorine gas. This resulted in coughing and wheezing and a brief hospitalization. After this incident almost any air quality problem would cause coughing and wheezing for the applicant. He was continually exposed to low levels of chlorine gas, including fairly regular, smaller spills. The applicant's respiratory problems gradually worsened and inhalers and other medications were eventually prescribed. He was diagnosed with asthmatic bronchitis in 1994 or 1995, and was transferred to a mechanic's position due to his breathing difficulties. In that position he was exposed to diesel fumes that also aggravated his symptoms. His breathing difficulties finally prompted him to leave his employment with the employer on December 1, 2001. Ever since the 1991 work incident, various environmental triggers such as excessive heat or cold, dust, diesel fumes, or perfume may increase the applicant's symptoms. He felt a brief improvement after quitting his employment, but the problem has continued and deteriorated.
The applicant's treating physician, Dr. Theodore Hubley, prescribed prednisone for what he has diagnosed as asthma and occupational reactive airways disease. This had a salutary effect on the applicant's respiratory symptoms, but Dr. Hubley is concerned about the side effects of prolonged steroid use, which include weight gain due to increased appetite. Dr. Hubley has prescribed another drug, Xolair, which has proven effective in atopic asthmatics such as the applicant, who have elevated Immunoglobulin E (IgE) levels. (1) This is a newer medication and is expensive. Based on the terms of the limited compromise agreement, there is no dispute that the applicant sustained an occupational lung injury. However, based on opinions given by Dr. Stuart Levy, respondents assert that Xolair is not a medication related to the applicant's work-related condition. All parties agree that the compromise allows for payment of all future reasonable and necessary medical expenses related to the work injury.
In October of 2005, Dr. Levy agreed with Dr. Hubley that the applicant developed reactive airways disease and asthma as a result of the chlorine exposures at work in 1973 and 1991. However, in December of 2005, Dr. Levy opined that the asthma that surfaced in 1991 was an irritant-induced asthma from which the applicant reached a healing plateau at the end of 1996. Dr. Levy arrived at this date by reference to a clinic note from Dr. Ullattil Kumar dated January 27, 1998, in which Dr. Kumar took a history from the applicant of a cough for one year's duration. From this history Dr. Levy reasoned that the applicant's asthmatic symptoms had resolved by the end of 1996, and new asthmatic symptoms had begun in January of 1997. Dr. Levy further opined that these new symptoms were the result of a nonindustrial allergic asthma, to which the applicant's atopic status made him susceptible. The applicant's elevated IgE levels are consistent with atopic, allergic asthma. Dr. Levy opined that the applicant's current asthmatic symptoms are entirely the result of this allergic asthma, and completely unrelated to what he characterizes as the "dormant" irritant-induced asthma.
In testimony at the November 2005 hearing, Dr. Levy chose a different date for the healing plateau for the applicant's irritant-induced asthma. He cited a normal pulmonary function test in October of 1999, and increased symptoms in the year 2000, and opined that the healing plateau had occurred in October of 1999. Also in testimony, Dr. Levy first responded to cross-examination by indicating that the medical records do not indicate that the applicant has reactive airways dysfunction syndrome, which he described as an extreme form of irritant-induced asthma. However, when asked to assume the circumstances of the 1973 workplace chlorine spill as it affected the applicant, Dr. Levy conceded that the applicant "might fit into a category of reactive airway dysfunction syndrome."
In October of 2003, Dr. Hubley diagnosed asthma, reactive airways disease, and asbestos-related pleural disease. Dr. Hubley attributed a thoracoscopy and pleurodesis performed in November 2002, as well as the 1988 decortication, to the asbestos-related pleural disease. (2) In addressing the issue of causation for the applicant's current asthmatic condition, Dr. Hubley does not draw the type of clinical distinction between irritant-induced asthma and allergic asthma that is drawn by Dr. Levy. Rather, Dr. Hubley dates the applicant's asthma onset from the 1991 chlorine exposure at work, and notes that following this incident the applicant complained of respiratory problems including wheezing. Dr. Hubley cites an abnormal pulmonary function test in January of 1998, with improvement in function after use of bronchodilators. He also notes that the applicant continued to be exposed to chlorine gas at the workplace, and opines that allergens that may have had minimal effect on the applicant prior to the 1991 work incident have since become precipitating agents for his asthmatic symptoms. Dr. Hubley acknowledges that the applicant's atopy may be playing a role in his current asthmatic symptoms, but opines that the evidence is convincing that those symptoms are also occupational in origin, and not completely due to atopy.
At the insurance carrier's request, Dr. Kurt Hegmann examined the applicant and reviewed his medical records. In Dr. Hegmann's comprehensive report dated June 1, 2001, he also diagnosed asbestos-related pleural disease, but opined that there was no objective evidence of impairment from this disease.
Dr. Hegmann further opined that the applicant's pulmonary function studies did indicate abnormalities, but his primary diagnosis to explain these abnormalities was exercise-induced asthma, and he believed there was ". . . insufficient evidence and no history clearly consistent with the reactive airways dysfunction syndrome." However, Dr. Hegmann also opined that "giving the benefit of the doubt," the 1991 work-related chlorine inhalation "...resulted in some material aggravation of an underlying asthmatic condition and contributed somewhat to his [the applicant's] problems." Dr. Hegmann ultimately apportioned the applicant's asthmatic impairment as 33 percent attributable to occupational exposure and 67 percent attributable to nonoccupational causes.
In summary, and disregarding the question of asbestos-related pleural disease, Dr. Hubley diagnosed "asthma/reactive airways disease" caused at least in substantial part by the applicant's occupational exposure. Dr. Levy diagnosed a "dormant" irritant-induced asthma of occupational origin, and a current condition of nonoccupational allergic asthma that surfaced as a result of the applicant's elevated IgE levels (atopy). Dr. Hegmann diagnosed exercise-induced asthma, for which he attributed one-third of the cause to the applicant's occupational exposure, and two-thirds of the cause to nonoccupational etiology. The administrative law judge accepted Dr. Levy's opinion, which included an opinion that the Xolair prescription was solely for the treatment of the nonoccupational allergic asthma. Reimbursement for the Xolair was therefore disallowed.
The commission finds credible the opinions of Dr. Hubley and Dr. Hegmann, to the extent that they both opine that the applicant's work exposure with the employer was a substantial causative factor in his current asthmatic condition. Dr. Hubley definitively diagnosed that current condition as asthma/reactive airways disease. However, he also noted that allergens that would have had minimal effect on the applicant in the past have become precipitating agents since the occupational onset of asthma, coincident to the 1991 exposure to chlorine gas. The only reasonable inference to be drawn from this opinion is that the occupational exposure aggravated, accelerated, and precipitated the applicant's allergic asthma beyond normal progression.
Dr. Hegmann's opinion supports this inference, although he uses the term exercise-induced asthma instead of allergic asthma to identify the atopic condition. He attributes one-third of the applicant's current asthmatic condition to direct occupational causation.
Dr. Levy's opinions are not credible. His medical assertion that at some point the applicant's irritant-induced asthma or reactive airways disease had gone dormant is belied by the evidence of continuing asthmatic symptoms dating from the 1991 chlorine exposure. Also, at different times, Dr. Levy gave substantially different dates for when he believed the irritant-induced asthma had gone dormant.
Particularly in a complicated medical case such as this one, the commission must carefully analyze the medical explanations given by the physicians, and identify how those explanations fit within the legal causation theories established in the case law, i.e., direct causation, aggravation/acceleration/precipitation of a preexisting condition beyond normal progression, and occupational disease. The commission infers from Dr. Hubley's and Dr. Hegmann's opinions that the applicant's atopic-related asthma is a substantial element of the applicant's current asthmatic condition, that this atopic-related asthma was aggravated, accelerated, and precipitated beyond normal progression by his occupational exposure with the employer, and that the Xolair prescription is therefore a reasonably required medical expense.
The actual expense of the Xolair is not in the record before the commission, and it is unclear whether or not the applicant had received a prescription for it prior to the date of hearing. It appears from correspondence in the file that subsequent to the hearing the applicant has been taking Xolair, and to make this an appealable order, the commission will order respondents to pay $100.00 (less a 20 percent attorney's fee) to the applicant as reimbursement for Xolair. Pursuant to Wis. Stat. § 102.18(1)(b), the commission will also direct respondents to pay for the applicant's past and future prescriptions of Xolair. The applicant and his attorney have failed to indicate in the record, or to otherwise inform the commission, as to their agreement with regard to attorney fees to be assessed against the expense for Xolair. The commission has presumed a 20 percent fee was agreed upon in ordering payment of the first $100.00. However, the applicant and his attorney shall inform respondents of their actual agreement prior to respondents making further payments, and respondents shall make payments in accordance with that agreement.
NOW, THEREFORE, this
The findings and order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of Eighty dollars ($80.00); and to Attorney Robert Ward fees in the amount of Twenty dollars ($20.00). Respondents shall additionally pay for the applicant's past and future prescriptions of Xolair, with a possible allowance for an attorney fee, pursuant to the applicant's agreement with his attorney.
This decision resolves only the issue of the applicant's claim for reimbursement for Xolair. All remaining, unresolved issues continue to be open under the interlocutory nature of the commission's order.
Dated and mailed July 28, 2006
hermeke . wrr : 185 : 8 ND § 3.37
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In consultation with the commission the administrative law judge indicated that he found Dr. Levy to have been a credible witness. However, this finding was based on acceptance of Dr. Levy's medical reasoning rather than any specific demeanor impressions gleaned from the hearing. The commission did not find Dr. Levy's opinion credible for the reasons noted in the above findings.
cc:
Attorney Robert T. Ward
Attorney James G. Budish
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