DIEGO SANCHEZ-DIAZ, Applicant
SODEXHO INC, Employer
NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed February 8, 2007
sanched . wsd : 101 : 1 ND § 3.42
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant, who was born in 1962, seeks compensation for bilateral shoulder problems, including a right shoulder rotator cuff tear, which he claims he sustained from his occupational exposure as a custodian with the employer.
The ALJ found for the applicant. He credited the applicant's description of the job duties, finding the applicant swept, mopped, shoveled snow, dusted, vacuumed, operated large floor cleaning machines, and moved furniture out of rooms in the summer months. He specifically found the applicant reached above shoulder level to clean higher areas such as the tops of doors, lights and fans, and reached above shoulder level to clean high windows. Based on this description of the duties, and the fact that the applicant had no shoulder problems before beginning his 14 year employment, the ALJ found more credible the opinion of Dr. Papandrea that the work exposure was a material contributory causative factor in the onset or progression of the applicant's bilateral shoulder condition.
The employer and its insurer (collectively, the respondent) appeal, raising two points. First, it asserts a legal defense, claiming that Dr. Papandrea's expert medical opinion is insufficient as it fails to state that the last six years of employment with the employer specifically -- as distinguished from long term work as a janitor generally -- was a material contributory causative factor in the onset or progression of the applicant's condition. Second, the employer contends that supervisor Lopez's testimony about his job duties is more credible than the applicant's, and since Dr. Papandrea relied on the applicant's description which included substantial overhead reaching, his opinion should be rejected.
The respondent's first argument comes from White v. LIRC, 2000 WI App 244, 239 Wis.2d 505. White had been a drywaller since 1996, and had experienced flare-ups of back pain causing him to miss work since the late 1960s. He only had one documented "incident" at work; an October 1991 injury termed an "aggravation" that caused him to miss work for which he received temporary disability. He then worked 30 weeks for the employer, Olympic, in 1994-95. The commission rejected White's claim for compensation because, while White may have had disability to the back from occupational exposure or disease, White did not prove his exposure during his brief employment with Olympic was itself a material contributory causative factor in the onset or progression of the applicant's disease.
The court of appeals affirmed, stating:
¶ 25. The portion of Delahunt's report that purports to establish the causal link between White's occupational back disease and his employment with Olympic reads as follows:
His current back disability appears to be related to his long work exposure as a drywaller. The symptomatology initially did appear while he was at work. It is my opinion that because of the prolonged exposure to the heavy work of a drywaller that he has this current low back disability.
¶ 26. White argues that these statements satisfied his causation burden because he had worked for Olympic for at least eight months prior to his last day of employment. He reasons that "this eight months of employment with Olympic had to contribute to [his] disease." (Emphasis added by the court.) But that is not what the report says; instead, that is White's interpretation of the report. LIRC held that Delahunt's report is deficient because it does not specifically tie White's occupational back disease to his employment with Olympic. Or, at best, it is ambiguous on this question. We agree. As we have noted, evidence is insufficient if it raises in the mind of LIRC a legitimate doubt as to the existence of a fact necessary and essential to establish a claim for compensation. See Bumpas, 95 Wis. 2d at 342-43. Stated differently, but to the same effect, a worker's compensation award may not be based upon findings that are mere possibilities or speculation. See Franckowiak v. Industrial Comm'n, 12 Wis. 2d 85, 90, 106 N.W.2d 51 (1960). Here, the ambiguity in Delahunt's report allows for a "legitimate doubt" on the question of causation. Any award on the basis of this report would have constituted a possibility or speculation. Under such conditions, it was LIRC's duty to dismiss White's worker's compensation claim. See Bumpas, 95 Wis. 2d at 342-43.
White v. LIRC, 239 Wis. 2d 505, ¶¶ 25-26.
The court of appeals holding in White suggests that when Dr. Delahunt stated only that White's disability was related to long exposure as a drywaller, or prolonged exposure to heavy work in that occupation, the commission could not simply assume a 30-week tenure with employer during 30-year career "had to contribute" to White's disabling condition. In this case, the respondent argues that because Dr. Papandrea did not specifically say that of the 15-year period that the applicant worked as a custodian, the 6 years he worked for the employer was a material contributory causative factor in the progression of his condition, the commission must find that a legitimate doubt exists.
The commission disagrees. This case is significantly different factually than White:
Since the applicant was working for the employer on the date of disability, and since Dr. Papandrea opined the employment for the employer was causative, the respondent would be liable for the applicant's injury, assuming the commission credits Dr. Papandrea's opinion.
This leads to the respondent's second argument: that supervisor Lopez's testimony about the work duties and Dr. Brown's expert opinion about medical causation are more credible than the applicant's testimony and Dr. Papandrea's opinion.
Again, the commission cannot agree. It is true that Ms. Lopez testified that the applicant's overhead reaching was less significant than the applicant testified. However, the ALJ, who observed both the applicant and supervisor Lopez testify, credited the applicant's version. Ms. Lopez's testimony takes a notably personal tone, as she testified without prompting that the applicant "lied" about his duties even though she only supervised for two of his six years with the respondent and 15 years with the employer overall. She testified that the applicant did not move furniture to clean, but later admitted she meant he moved it by sliding it as opposed to lifting it. She testified he could empty a mop bucket in a floor sink without lifting it -- by which she apparently meant he could empty it by lifting only the back end and tilting the front end into the sink.
Like the ALJ, the commission believes the applicant gave the more accurate description of his duties and particularly the amount of overhead reaching it involved. Since Dr. Brown relies on a history that understates the amount of physical effort, and particularly overhead lifting, that the applicant performed in his job, the ALJ properly credited Dr. Papandrea's opinion on this record.
cc:
Attorney Corina Diaz-Suazo
Attorney Jennifer L. Barwinski
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