MARVIN R HARRIS, Applicant
NEENAH FOUNDRY CO, Employer
EMPLOYERS INS CO OF WAUSAU, Insurer
In January 2006, the applicant filed an application for hearing seeking compensation for permanent total disability due to occupational exposure to silica dust during his employment. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 13, 2006.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a wage of $735.12 per week, and a compensable silicosis injury with a February 2, 2005 date of injury. The respondent also paid permanent partial disability at five percent compared to permanent total disability ($12,100). At issue are the nature and extent of disability and the respondent's liability for medical expense.
On October 18, 2006, the ALJ issued his decision in the applicant's favor. The respondent filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1951. He is, the doctors agree, disabled from pulmonary conditions related both to tobacco smoking and to silica and dust exposure at the employer's foundry. He seeks compensation for permanent total disability.
The respondent does not dispute that the applicant is permanently totally disabled; indeed, its medical examiner concurred with the applicant's vocational assessment on that score. Rather, the respondent disputes the claim on the basis that the applicant has two pulmonary conditions, silicosis caused by work exposure and chronic obstructive pulmonary disease (COPD) caused by smoking. The respondent contends that the vast majority of the applicant's disability is due to nonwork-related COPD.
The applicant submits the expert medical report of James R. Runo, M.D., whom he saw for a second opinion regarding the possible diagnosis of pulmonary silicosis. See exhibit A. Dr. Runo's diagnostic impression was "a moderately severe obstructive lung disease with evidence more for a chronic bronchitis than an emphysematous picture."
Dr. Runo added:
The patient does not have an extensive smoking history with only 25 pack years; however, it is difficult to distinguish the contributing factors for silica or mixed dust to tobacco abuse. The patient easily has a very extensive exposure to at least silica and more than likely also a mixed dust picture and has evidence in the radiology report from September of possible eggshell calcifications in the mediastinum, which is evidence for silica exposure. The small reticular nodular pattern more prominent in the apices would also go along with silica exposure. It is well known now the silica exposure can produce a chronic bronchitis with obstructive lung disease pattern on pulmonary function tests. It is impossible, however, to give a definite percentage, although my feeling on this patient would be that silica and mixed dust exposure has contributed to his chronic bronchitis with obstructive lung disease in the absence or presence of smoking. If his chronic bronchitis is mainly due to smoking, the silica mixed dust certainly have contributed or exacerbated his disease. I agree with Dr. Avery's assessment that the patient should not return to his work and be exposed to continued silica and mixed dust, as this could significantly worsen his symptoms and lung disease.
In the "plan" section of his report, Dr. Runo also diagnosed "possible pulmonary silicosis" but added "although I cannot definitely give a percentage, I do agree with Dr. Avery that exposure to silica and other mixed dusts has contributed to if not been the main cause of the patient's chronic bronchitis and obstructive lung disease." Regarding work restrictions, Dr. Runo felt it likely the applicant could work in a desk job setting, but that a manual job would be difficult for him.
The applicant also submits the report of Bryan Avery, M.D., his treating doctor. He noted the applicant had several respiratory diseases, describing his main illness as moderately severe COPD from smoking. However, the doctor reported the applicant also had interstitial lung disease which appeared to be due to silicosis based on the clinical assessment. The doctor noted, too, a concern that some of the applicant's interstitial lung problems might be due to congestive heart failure and that he suffered from sleep apnea as well.
Dr. Avery continued:
It is my opinion that 90% of his respiratory disease and symptoms are due to his smoking related COPD condition. Likewise I would state that 10 percent of his pulmonary disability is due to his silicosis condition. Based on his lung function and respiratory assessment and arterial blood gas assessment, I would say he has a moderate impairment of his physical condition due to his respiratory diseases. That impairment would put him at about a 40 percent total respiratory impairment and again I want to emphasize that 10% of that total impairment is due to silicosis and 90 percent is due to his smoking related COPD condition. Because of his lung disease, I have advised him to completely avoid exposure to dust, smoke, chemical fumes, and any significant inhalant irritant. This, unfortunately, prevents him from working at a foundry. Foundries commonly have dirty air in them which is inadvisable for lung patients to experience. These work restrictions that I just mentioned are permanent restrictions. I do not expect his lung function to get any better, and actually as the years go on his lung function will probably slowly worsen. This is normal prognosis for smoking related CPOD.
Dr. Avery also completed a practitioner's report on form WKC-16B which essentially restated the opinion set out above. That is, Dr. Avery listed the work exposure to silica dust in connection with his work as a chipper and grinder for 29 years as the work exposure at issue, he referred to his dictations which state a diagnostic impression of both interstitial lung disease (or silicosis) from silica or occupational dust exposure and COPD, and he opined that the work exposure caused the applicant's disability directly and as a material contributory causative factor in the onset or progression of his disabling occupational disease. However, Dr. Avery again stated that only 10 percent of the disability was caused by the work exposure with tobacco smoke causing the other 90 percent.
Dr. Avery's practitioner's report goes on to state that the applicant was able to work at a sedentary job, free from exposure to dust, smoke and chemical fumes. He rated permanent partial disability at 40 percent, citing breathlessness and cough as disabling factors, but assigned only 10 percent of that to the work exposure. His prognosis was for continued worsening. Regarding pre-existing disability, the doctor stated the question was not relevant, noting "silicosis and COPD develop over years-decades gradually."
There is also a July 3, 2006 report from Steven M. Brown, M.D., who examined the applicant on behalf of the employer. See exhibit 1. He diagnosed advanced COPD, weight gain and deconditioning with dyspnea secondary to obesity, chronic tobacco abuse, chronic hypoxia (reduction of oxygen supply to tissue), nocturnal hypoxia, moderate obstructive sleep apnea, and mild silicosis. As alluded to above, Dr. Brown agrees the applicant is disabled from working due to these conditions.
Asked about silicosis specifically, Dr. Brown opined the applicant had silicosis as a result of his work exposure with the employer, and that "silicosis does materially contribute to his current disability." However, the doctor goes on to state:
Overall, Mr. Harris is completely disabled and he has very severe obstructive impairment. The vast majority of his impairment, based upon repeated pulmonary function tests, is an obstructive impairment. There is evidence of hyperinflation of the lungs, which lead to dyspnea, combined with severe obstruction. These pulmonary findings are most likely secondary to his history of extensive tobacco abuse which has dated back at least 25 years. It appears from his history that he has smoked between 1 and 1 1/2 packs per day.
. . .
There is also a very mild restrictive impairment noted on pulmonary function testing with a total lung capacity most recently of 89 percent of predicted values. Restricted impairment would most likely be secondary to diseases such as pneumoconiosis of which silicosis fits into that category of diseases. In my opinion, due solely to his silicosis resulting from his work exposure, he has a 5 percent permanent partial impairment to the body as a whole based on this mild restrictive impairment. The remainder of his current disability status is unrelated to his work place exposure as discussed above.
Regarding work restrictions, Dr. Brown added:
Regardless of causation, [the applicant] is unable to return to work because of his advanced lung disease. Solely with regard to his silicosis resulting from his workplace exposure, [the applicant] would be advised to include avoidance of further exposure to silica and particulate matter.
In a follow-up report dated August 25, 2006 (exhibit 2), Dr. Brown opined that degree of restrictive impairment as a consequence of Mr. Harris' work-related silicosis would not disable him from working at the Neenah Foundry or any other source of employment. Regarding the disability from work due to COPD, however, Dr. Brown's opinion coincides with that of Mr. Birder who opines the applicant is permanently totally disabled on an odd lot basis given the restrictions set by Drs. Avery and Runo.
Among these reports, the commission credits Dr. Runo's opinion. Again, in stating his opinion, he points to the x-ray findings of possible eggshell calcification in the mediastinum and a small reticular nodular pattern, both consistent with silica exposure and concludes:
It is well known now the silica exposure can produce a chronic bronchitis with obstructive lung disease pattern on pulmonary function tests. It is impossible, however, to give a definite percentage, although my feeling on this patient would be that silica and mixed dust exposure has contributed to his chronic bronchitis with obstructive lung disease in the absence or presence of smoking. If the chronic bronchitis is mainly due to smoking, the silica and mixed dust certainly have contributed to or exacerbated his disease.
In stating his plan, Dr. Runo lists "possible pulmonary silicosis" but adds that "exposure to silica and other mixed dusts have contributed if not been the main cause of the applicant's chronic bronchitis and obstructive lung disease."
In other words, Dr. Runo does not separate COPD from the silica and dust exposure as does Dr. Brown (who differentiates between the chronic obstructive pulmonary disease caused by smoking and the restrictive disease caused by silicosis from the silica and dust exposure.) Rather, Dr. Runo opines that the silica and dust exposure is a contributing causative factor, and it may be reasonably inferred from his opinion a material contributory causative factor, in the onset or progression of the disabling chronic bronchitis and obstructive lung disease.
If work exposure is a material contributory causative factor in the disease that caused disability, the respondent is liable for the full amount of the disability. (1) Here, the most reasonable medical opinion establishes that the work exposure to dust and silica was a material contributory causative factor not only in silicosis but also in the applicant's chronic bronchitis and obstructive lung disease.
Because the applicant is permanently and totally disabled as a result of his pulmonary condition, he is entitled to compensation for permanent total disability beginning on his last day of work, February 2, 2005. At the weekly rate of $490.08 (two-thirds the applicant's average weekly wage of $735.12), the applicant is entitled to $57,584.40 for the 117-week, 3-day period from February 2, 2005 to May 5, 2007. After deducting the employer's prior payment of permanent partial disability of $12,100, the amount due as of May 5, 2007 is $45,484.40.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded, which is $9,068.88 on the amount due as of May 5, 2007. That amount, plus costs of $612.94 shall be deducted from the applicant's award and paid within 30 days. The amount due the applicant himself as of May 5, 2007 is $35,774.58, which equals the amount currently due ($45,484.40), less the fee thereon ($9,068.88), less costs ($612.94).
The applicant remains entitled to permanent total disability compensation for his life, subject to a deduction for an attorney fee for the first 500 weeks of permanent total disability, or to September 4, 2014. See Wis. Admin. Code, § DWD 80.43(3). The weekly permanent total disability of $490.08 converts to a monthly rate of $2,123.68. Through September 4, 2014, the applicant shall be paid $1,698.93 per month and his attorney $424.75. After that date, the applicant shall be paid at the full monthly rate of $2,123.68.
Regarding treatment expenses, the parties stipulated to the withdrawal of the cardiac catheterization at page 6 and all of the expenses at page 12 of the applicant's statement of treatment expense at exhibit H. Otherwise, the applicant incurred reasonable and necessary treatment expense to cure and relieve the effects of the work injury as documented at exhibit H and detailed in the ALJ's order.
This order shall be left interlocutory to permit litigation of claims not resolved herein, and to permit the calculation of the social security reverse offset if applicable.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Marvin R. Harris, Thirty-five thousand seven hundred seventy-four dollars and fifty-eight cents ($35,774.58) in disability compensation.
2. To the applicant's attorney, Tony W. Welhouse, Nine thousand ninety-six dollars and eighty-eight cents ($9,096.88) in fees and Six hundred twelve dollars and ninety-four cents ($612.94) in costs.
3. To Dr. Bryan Avery, Two hundred ninety-one dollars and five cents ($291.05) in medical treatment expense.
4. To Affinity Medical Group, Thirty dollars and ninety cents ($30.90) in medical treatment expense.
5. To New London Family Medical Center, Two hundred ninety-two dollars and eighty-eight cents ($292.88) in medical treatment expense.
6. To WIVA/Affinity Plus, Two hundred fifty-one dollars and forty-seven cents ($251.47) in medical treatment expense.
7. To Hong Xie, One hundred sixty-six dollars and sixteen cents ($166.16) in medical treatment expense.
8. To Kenneth Geller, Three hundred seventy-five dollars and thirty-one cents ($375.31) in medical treatment expense.
9. To Network Health, Ten thousand four hundred eighty-nine dollars and seventy-three cents $10,489.73) in reimbursement of medical treatment expense paid.
10. To the applicant, One thousand one hundred eighty dollars and thirty-three cents ($1,180.33) as reimbursement for out-of-pocket treatment expenses and mileage.
On the fifth day of each month beginning on June 5, 2007, and continuing on the fifth day of each month until September 4, 2014, the employer and its attorney shall pay the applicant One thousand six hundred ninety-eight dollars and ninety-three cents ($1,698.93) per month in disability compensation and his attorney Four hundred twenty-four dollars and seventy-five cents ($424.75) per month in fees.
Beginning September 5, 2014, and continuing on the fifth day of each month thereafter, the employer and its insurer shall pay the applicant Two thousand one hundred twenty-three dollars and sixty-eight cents ($2,123.68) per month for life.
Jurisdiction is reserved consistent with this decision.
Dated and mailed May 3, 2007
harrism . wrr : 101 : 9 ND § 3.42 § 3.43
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
On appeal, the respondent argues that if the COPD is what is really disabling the applicant and it was caused by smoking and not work exposure, then it should not have to pay compensation for permanent total disability. In making this argument, the employer contends that the court cases (2) stating the "no-apportionment rule" in occupational disease cases generally (and silicosis cases specifically) are dealing with apportionment between successive insurers or employers of disability from a single disease or condition, and therefore do not apply. Rather than apportionment of liability for disability from one disease between successive employers, the respondent argues, this case involves apportioning the applicant's disability between two conditions, one work related and one not. On this point, the employer cites the commission's decision in Armstrong v. Heyde Health System, WC Claim No. 1992034936 (LIRC, May 26, 1998).
If the applicant's COPD were in fact solely caused by smoking with no material contribution from the silica exposure, the commission would have to address this argument. However, because it concludes the applicant's occupational exposure to silica and dust was a material contributory causative factor in the onset or progression of his disabling chronic bronchitis and obstructive lung disease, it does not reach this argument.
cc:
Attorney Tony Welhouse
Attorney Keith W. Kostecke
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