STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAMES J. ROSE, Applicant

RUST OLEUM SALES CO INC, Employer

AMERICAN MOTORISTS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-013428


In April 2005, the applicant filed an application for hearing seeking compensation for a respiratory condition arising out of exposure to chemical irritants with an October 26, 2001 date of injury. Specifically, the applicant sought compensation for permanent total disability and medical expenses. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on March 14, June 29, and September 20, 2006.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $827.72. In dispute was whether the applicant sustained an injury from a disease arising out his employment with the employer, while performing services growing out of and incidental to that employment. Ancillary issues included the nature and extent of disability from any such injury, as well as the respondent's liability for medical expenses.

On December 27, 2006, the ALJ issued his decision dismissing the application. The applicant filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1942. He has had some upper respiratory and sinus symptoms dating back to childhood. In the early 1960s, he had an accident which caused a subdural hematoma, resulting in a stroke or stroke-like event, that left him with a neurological impairment and a slow speech pattern.

In 1978, the applicant began working for the employer, a paint manufacturer. He first worked as a security guard, then as a lab technician. Since earning a baccalaureate degree in chemistry in 1980, the applicant has worked 40 hours a week for the employer as a chemist.

The applicant's job was to make paints, which required obtaining the correct color, hardness, and other qualities. This involved mixing chemicals in a mill -- a small bucket -- to develop paint from scratch. He would then spray the paint on a panel to test it. He usually wore a respirator mask with a filter when mixing the paint.

The paint mixing work involved using polyurethane activators containing isocyanates. The applicant worked specifically with activators identified as the 9400 and 9800 series. These products, according to the Material Safety Data Sheets in the record (exhibits Q and R), contain isocyanates. According to the Emergency Overview portion of the Material Safety Data Sheet for the 9400 series polyurethane activator, the product may cause an allergic respiratory reaction. Chronic overexposure can cause lung damage. The Material Safety Data Sheet contains a similar warning, but also states in the Emergency Overview section that "[i]ndividuals with lung or breathing problems or prior reaction to isocyanates must not be exposed to vapor or spray mist."

In addition to exposure to isocyanates while mixing paints, the applicant also testified that three spills of products containing isocyanates occurred during his employment. He was involved in cleaning up two of them. One occurred in October 2000, when he actually spilled some of the activator chemical on himself while working. He changed his uniform pants, and cleaned up the spill with rags. Afterward he reported it to a supervisor. The other spill occurred in the shaker room, when the chemical mixed with paint spilled and he helped clean it up. June 29, 2006, transcript, page 49-50.

The employer, on the other hand, introduced testimony from its human resource manager, Larry West, to the effect that it had tested the applicant's work environment for isocyanates, and that the level detected was below the threshold value -- that is, that it was so small as to be virtually nondectable. June 2006 transcript, page 86. Mr. West also testified that the applicant worked with isocyanate polymers which were less volatile, and therefore generally considered less hazardous, than isocyanate monomers. June 2006 transcript, page 86-87. The employer also introduced the testimony of the applicant's supervisor, Roy Carlsten, Jr., who testified the layout of the work place was the same when the applicant worked there as when the isocyanates testing was done. September 2006 transcript, page 39. Mr. Carlsten also estimated that only 20 percent of the jobs the applicant did involved isocyanate exposure, and that the applicant was actually using products containing isocyanates only 2 or 3 percent of the time he was at work.

On September 26, 2001, the applicant sought treatment for symptoms of chest pain and breathing difficulty. At the time, he was working with polyurethanes, specifically the 9400 series and 9800 series of activators, trying to match the colors. The applicant testified that this was part of an ongoing project that he had been doing since May 2001, during which he was doing mixing at work 6 to 8 hours per day.

When the applicant experienced the breathing and chest pain symptoms at work, he told his supervisor who said he would call an ambulance. The applicant instead drove himself to the hospital. A cardiac work-up was done. This was negative and the applicant returned to work after four days.

The applicant returned to work at the same project, and again experienced symptoms. The symptoms got worse during the course of a work day, and better over the weekend.

On October 25, 2001, the applicant saw his family doctor, Dr. Drury, on a follow-up appointment scheduled for a month after the treatment in September 2001. He was still experiencing chest pain and shortness of breath,. Dr. Drury again took him off work and readmitted him to the hospital.

The applicant saw Dr. Patano, a pulmonologist, while he was in the hospital. Dr. Patano reported that the applicant had some mild interstitial infiltrates on CT of the chest. The doctor noted the applicant had not had anaphylaxis or other reaction. A broncospirometry was done, and the applicant had a mild restrictive pattern with a borderline bronchodilator response. Dr. Patano's assessment was

1) Chest pain
2) Costochondritis.
3) Dyspnea
4) Possible COPD versus asthma

When Dr. Patano saw the applicant again on November 21, 2001, he noted the applicant was still having episodes of chest pain, and that when he was re-exposed to work by visiting for an hour, he had an episode of reaction. Upon reexamination by Dr. Patano on December 11, 2001, the applicant was still complaining of chest pain with shortness of breath, requiring him to stop and rest frequently. On physical examination, however, his lungs were clear without crackles, rubs, or wheezes. The doctor felt the chest pain was likely musculoskeletal.

When the applicant saw Dr. Patano again on January 8, 2002, he told the doctor he was feeling 90 percent better than he had on his last visit, following a course of prednisone and antibiotic. The doctor decided to do a methacholine challenge test to determine whether the applicant had asthma.

The methacholine challenge test was done on January 29, 2002. Exhibit I. According to Dr. Patano it was diagnostic of bronchospastic disease. When he saw the applicant next on March 26, 2002, he reported:

...he had a methacholine challenge which was positive, and he was started on Advair 500/50... Since that time, he has improved with fewer episodes of chest pain. He still, however, has exposure problems and has chest pain on exposure to fumes and exhaust, or chemicals in his workplace. He has not visited his workplace since that time.

The doctor's diagnostic assessment was asthma, with stable dyspnea.

The applicant subsequently qualified for social security and moved to Missouri. While in Missouri, he saw Dr. Lum, a family doctor, and Dr. Marcum, an allergist.

When the applicant first saw Dr. Marcum in February 2004, the doctor noted the applicant had had upper respiratory and sinus problems dating back to childhood. Over the years, his symptoms progressed and eventually became year round. The doctor noted that in September 2001, the applicant experienced increased shortness of breath, chest discomfort and wheezing. The doctor noted, too, that a methacholine challenge test was done to confirm a diagnosis of asthma which was not obtained on a routine pulmonary function test. The doctor went on to report:

Certainly this patient has very significant IgE mediated Asthma, Rhinitis, and bilateral Eustachian Tube Dysfunction with some evidence of Serious Otitis bilaterally.... I do not think that in view of the history and evidence a repeat Methacholine Challenge Test is required to further confirm the diagnosis. As you know the patient was by profession a chemist and apparently did have routine laboratory exposure. However, it would seem that this was not a primary causative factor but an irritant involved in the long progressing IgE mediated sensitization beginning even in childhood.

Dr. Marcum thought he would benefit from immunotherapy for his lower respiratory tract condition, in addition to an inhaler, and a medication for his allergies.

When the applicant returned to Dr. Marcum on April 16, 2004, the doctor reported to family doctor Lum

With respect to the lower respiratory track as you will recall the major focus of your referral revolved around his uncontrolled asthma and increasing over use of the rescue inhaler and increasing medical needs. At the time of your referral he was using his nebulizer consistently three to four times daily and his rescue inhaler up to six times daily and was still very short of breath and fatigued. At this point he has had a very marked improvement in his asthma. He no longer uses his nebulizer and rarely his rescue inhaler.

..

So in conclusion the patient has responded to immunotherapy almost better than I could have expected. I, as you know often comment to you on the importance of immunotherapy in treating the lower respiratory tract....

The applicant has not worked since October 2001. He testified that there was work he could do for the employer without being exposed to chemicals -- and actually talked to the employer's front office about obtaining such work -- but was told nothing was available but they would keep him in mind.

The applicant has continued to treat for his asthma. He takes Advair -- an inhaler -- a puff in the morning and another at night, and Proventil as an emergency inhaler. He also takes some tablet medications. He continues to be bothered by heavy perfumes, cigarette smoke, heavily scented candles, and exhaust smoke. He stopped smoking on September 25, 2001 -- the day his problems began. His wife, however, continued to smoke, and the couple has large exhaust fans in their home. June 2006 transcript, page 79.

The record involves considerable -- and diverse -- expert medical opinion on the question of whether the applicant has occupational asthma.

Dr. Marcum, the allergist with whom the applicant is treating in Missouri, has completed a practitioner's report on form WKC-16-B. Exhibit A. Regarding date of injury, the doctor lists "Occupational: 10/26/01." He explains:

The patient suffers from both an upper and lower respiratory condition resulting from work exposure at Rustoleum. That work exposure is in fact and absolutely a material contributory causative factor to the onset and progression of his Allergic Asthma and upper respiratory condition.

The doctor noted that, as of October 26, 2001, the applicant was released with significant occupational restrictions to include moderately severe limitations against exposure to extremities of temperature and humidity and severe restrictions against exposure to dusts, fumes, odors, and chemical irritants.

Dr. Marcum rated permanent partial disability at 30 percent to the whole body, explaining:

I would rate his exertional limitations at a moderately severe level. With respect to limitation on exposure to extremes of temperature and humidity I would also rate that at a moderately severe level. With respect to his limitations of exposure to dust, fumes, odors, and chemical irritants that would be at the severe restriction level.

Dr. Patano also submitted a report dated February 6, 2006. Exhibit B. He reports:

Patient was initially seen on 10/25/01, and was given the provisional diagnoses of costochondritis and COPD. His symptoms persisted, and was seen in followup, at which time a methacholine challenge study was recommended to rule out possible COPD versus asthma. The positive methacholine challenge test of 1/29/02 confirmed the existence of asthma. The exposure to fumes, chemicals or other strong inhaled scents/irritants at his work place triggers and exacerbates asthma in this patient.

The doctor diagnosed:

1) Occupational asthma
2) Dyspnea
3) Chest pain secondary to asthma, and possible costochondritis.

Dr. Patano affirmatively marked the "occupational disease" causation box on the practitioner's report form, indicating that an appreciable period of work place exposure was at least a material contributory causative factor in the onset or progression of the applicant's disabling condition. He also stated that while the applicant's injury had resulted in disability, he could not say how much.

The applicant also relies on the opinion of Jordan Fink, M.D., an expert who examined, but did not actively treat, the applicant. See exhibit C. Dr. Fink completed a practitioner's report on form WKC-16-B, in which the doctor noted contact with isocyanates and in cleaning up spills. The doctor opined the work exposure to isocyanates particularly caused occupational asthma, rhinitis and sinusitis, and possibly hypersensitivity pneumonitis. He indicated specifically that the conditions were caused by an appreciable period of workplace exposure which was a material contributory causative factor in the progression of the applicant's condition.

In a narrative report, Dr. Fink added in his job for Rustoleum the applicant had almost daily contact with isocyanates -- a chemical well known to cause asthma -- while wearing a cartridge mask. He noted, too, the three spills which the applicant cleaned up with towels (actually the applicant cleaned up two spills). Dr. Fink added that, in addition to mixing paint formulations, the applicant would spray or paint them into a spray booth when he did not always wear a mask.

Regarding causation, Dr. Fink states:

In my opinion, Mr. Rose has asthma. He has decreases below normal in his FEV1 levels. His decreases in FVC (allowing for a normal ratio of FEV1/FVC) can occur as an obstructive lung disease can cause a restrictive pattern also. Secondly, Mr. Rose has a neurologic deficit which could reduce his muscular effort. Finally, Mr. Rose has been shown to have an interstitial pattern on chest CT. Such interstitial disease is also associated with a restrictive lung defect.

The methacholine challenge test carried out on January 29, 2002, indicated a 21% fall in FEV1 at 10 mg/ml. That is not equivalent to a 20% fall (the significant value) at 10 mg/ml, but is a 20% fall at less than 10 mg/ml, and as the equipment has calculated the amount was 7.50 mg/ml. Thus, according to the ATS criteria, the test was positive. As an aside, the so called standard published by the ATS in 1999 emanated from a Canadian study. Most physicians practicing pulmonary medicine or allergy will consider pulmonary (laboratory) tests in light of the clinical picture rather than taking the laboratory test as the end all.

Mr. Rose had exposure to a significant and well known asthmagen (isocyanates) for over ten years, including spills (spills are a major cause of isocyanate induced asthma), a history compatible with asthma, and response to avoidance and medication. He indeed had an atopic (allergic background) but had no asthma until he was exposed to isocyanates at work.

Dr. Fink went on to say that the applicant had additional problems common in asthma including sinusitis and rhinitis. He also had a hypersensitivity pneumonitis, which the doctor stated "also can be induced by isocyanates." He opined the work for the employer was a material contributory causative factor in the onset or progression of the conditions discussed above.

Regarding the extent of disability, Dr. Fink estimated permanent partial disability at 30 percent. He set work restrictions against exposure to any isocyanates, irritants, fumes, dusts, or extremes of temperature or humidity. His prognosis was:

...permanent asthma and its complications (sinusitis especially). His allergic component has responded to immunotherapy which has returned him to his pre-isocyanate induced asthma status. He should continue immunotherapy, should have doctor visits 2-3 times per year, chest x-rays and pulmonary function tests at intervals and medication based on his symptoms.

The respondent relies on the opinion of Stuart Levy, who did a report following a record review (exhibit 2) and following an examination (exhibit 3). In the record review, he concluded that the applicant's response to Dr. Marcum's treatment was convincing evidence of allergic rhinitis and atopy in childhood. While acknowledging these conditions are associated with asthma, he did not think the diagnosis of asthma had been established with sufficient medical probability.

Dr. Levy noted that while the methacholine challenge test done in January 2002 was positive at 10mg/ml, the false positive rate at that dose level was 30 percent. The doctor noted the currently acceptable dosage rate was 8 mg/ml as too many subjects without asthma would react at the higher rate. Dr. Levy noted, too, that the applicant's spirograms did not reveal evidence for airway obstruction.

Regarding causation, the doctor did not think there was sufficient evidence that the applicant was exposed to any material at work to cause or aggravate asthma. He stated in summary:

Mr. Rose has an allergic history dating back to his childhood manifested by allergic rhinitis and atopy. There is no convincing evidence that his work as a chemist was a material factor in the onset or progression of his condition beyond normal expectations. In particular, the diagnosis of asthma has not been established with a reasonable degree of medical probability. The FEV1/FVC has always been stable and normal. Because of allergic rhinitis and atopy, he should live and work in an environment as free as possible from irritant dust, fumes, smoke and allergens. This restriction has been made necessary as a result of his lifelong conditions and not a result of his work at Rustoleum.

On October 25, 2005, Dr. Levy administered his own methacholine challenge test. On a dosage of 8 mg/ml, he had a FEV1 decline of only 15%, constituting a negative study. He reiterated the conclusions he had made in his earlier report. In response to specific interrogatories, he gave a diagnosis of atopy and allergic rhinitis, and added that the applicant did not have asthma at the present. He specifically stated the applicant's employment at Rustoleum was not a material contributory causative factor in the onset or progression of any of his conditions. Dr. Levy did think that, because of his rhinitis and atopy, the applicant should work in an environment as free as possible from irritant dust, fumes, smoke and allergens.

Dr. Fink offered some rebuttal to Dr. Levy's opinion. Dr. Fink stated that while Dr. Levy was entitled to his opinion, the applicant taken his medication on the day Dr. Levy did the methacholine challenge, so that the result of the test that Levy performed was invalid for interpretation. Dr. Fink also made the point that the monitoring done at the employer's workplace, which showed only a trace or virtually nondectable level of isocyanate, did not mean he did not develop asthma from occupational exposure. Asked if the applicant could develop asthma even if the PEL [permissible exposure level] and TLV [threshold limit value] were within government standards, the doctor responded:

...it is important to recognize that levels above PEL and TLV may have occurred and could not be detected without a personal monitor.

Finally, the respondent offers Dr. Levy's testimony by deposition. Exhibit 24. Dr. Levy stated that the applicant had told him and the technician who did the test that he had, in fact, stopped taking his medication shortly before the methacholine challenge testimony administered by Dr. Levy. Dr. Levy added that if the applicant had not stopped taking his medication, he would not have done the test as it would have been invalid. Exhibit 24. However, while acknowledging the possibility of a false negative in the methacholine test, Dr. Levy testified on deposition that there was enough other evidence in the history, clinical picture, and examination to rule out asthma.

Both sides also submit reports from vocational experts regarding the effect on the applicant's earning capacity from the work restrictions set by medical experts. The respondent's vocational expert, Michael Campbell, estimates a loss of earning capacity at 50 to 60 percent if one adopts the restrictions set by the applicant's doctors, Fink and Marcum. He estimated a 35 to 45 percent loss of earning capacity if one adopted Dr. Levy's restrictions. Mr. Campbell opined the applicant would be able to work in a variety of clerical jobs, and noted the applicant's own statement that he tried to return to work with Rustoleum -- that there was work he could do -- but it was not provided to him. That indicates, Mr. Campbell thought, a clear capacity to work. See exhibit 1.

The applicant's vocational expert is John Birder. He opined the applicant was permanently and totally disabled -- given his age and the effect that would have on his using his transferable skills in other employment -- regardless of whose restrictions were adopted. See exhibit O.

The commission first addresses the issues of diagnosis and cause of disability. Dr. Patano diagnosed asthma after performing the methacholine challenge test. Indeed, Dr. Marcum felt the evidence of asthma was so significant that repeating the methacholine challenge test was unnecessary to confirm the diagnosis. The record before the commission establishes that isocyanate exposure may cause asthma. Dr. Fink credibly opines that the applicant had an atopic (allergic) background, but no asthma until he was exposed to isocyanates at work.(1)   The doctor also opined that spills are the major cause of isocyanate induced asthma. The applicant did work that involved the isocyanates on a fairly regular basis, and he was also exposed to spills involving the chemical. In sum, the more credible medical opinions (those of Drs. Patano, Marcum, and Fink) establish the applicant has asthma and that it was caused by isocyanate exposure in case.

Further, while Mr. Carlsten and Mr. West testified that the activators containing the isocyanates came in a bottle of less than a quart (September 2006 transcript, pages 26 and 27, and June 2006 transcript, page 86) -- not a 55 gallon drum as stated by Dr. Fink -- this discrepancy does not change the fact of the applicant's long-term exposure to the chemical or his involvement in cleaning up spills. Similarly, while Mr. West stressed that the applicant worked with less volatile polymers rather than more volatile monomers, he described polymers as less hazardous, not free of the respiratory hazards posed by isocyanates.

The commission acknowledges that Dr. Marcum initially opined that the applicant's routine laboratory exposure was not a primary causative factor but an irritant involved in the long progressing sensitization beginning even in childhood. However, Dr. Marcum later opined that work exposure was a material contributory causative factor to the onset and progression of the applicant's allergic asthma and upper respiratory condition. Further, the commission need not find that work exposure was the sole cause of the asthma, or even the main factor in its cause. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942). That standard has been met in this case.

The fact the applicant did not consider his exposure to isocyanates as a cause of his condition until a heart condition had been ruled out does not weaken the applicant's case. The applicant is not a medical doctor, or a pulmonologist, and the fact that his condition -- involving shortness of breath and chest discomfort in a male in his fifties -- was initially treated as a cardiac condition is hardly surprising. In short, the fact that the applicant did not immediately understand the medical relationship between his occupational exposure and his condition is not dispositive. See: Susan Brown v. Sams Club, WC Claim No. 1998-012372 (LIRC, August 31, 1999). See also Van Vonderen v. Miller Electric Manufacturing Co., WC claim no. 20001061234 (LIRC, August 14, 2002). The commission also declines to conclude that the applicant's history of cigarette smoking -- or his wife's continuing smoking habit -- caused his condition. None of the doctors say that cigarette smoking caused the applicant's asthma. Rather, the employer's medical expert, Dr. Levy, opines the applicant does not have asthma.

The commission is therefore satisfied that the applicant suffers from asthma, and that his exposure to isocyanates at work was at least a material contributory causative factor in the onset or progression of that condition. The applicant therefore has established an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment.

The next issue is the extent of the applicant's disability. The applicant does not seek temporary disability, but claims he has been permanently and totally disabled since the date of injury. Under the "odd-lot" rule, where a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977).

The commission cannot conclude the applicant is permanently and totally disabled on an odd lot basis. As the respondent and its vocational expert suggest, the fact the applicant felt he could work for the employer writing MSDSs indicates he is not unemployable. His restrictions -- no exposure to isocyanates, irritants, fumes, dusts, or extremes of temperature or humidity -- may hamper him from finding work as a chemist to some degree, but do not rule out other work. The commission credits Mr. Campbell's opinion that the applicant could find work in a variety of clerical jobs and that the applicant retained a clear capacity to work Based on Mr. Campbell's opinion regarding the vocational effect of Dr. Fink's restrictions as well as careful consideration of the factors set out in Wis. Admin. Code § DWD 80.24, the applicant has sustained permanent partial disability based on loss of earning capacity at 50 percent.

The applicant is therefore entitled to 500 weeks of compensation for permanent partial disability totaling $92,000, accruing as of the claimed date of injury in this case, October 26, 2001.(2)  As of September 11, 2007, 306 weeks and 4 days (306.6667 weeks) amounting to $56,426.67 has accrued; 199 weeks and 2 days (193.3333) amounting to $35,573.33 remains unaccrued.

The applicant approved an attorney fee set under Wis. Stat. § 102.26, at 20 percent of the additional amounts awarded hereunder. The future value of the fee equals $18,400 (0.20 times $92,000). However, the fee is subject to an interest credit of $854.16 to reflect the advance payment of fee attributed to unaccrued permanent disability. This present value fee is thus $17,545.84, which together with the applicant's costs of $3,305.83 (letter from Attorney Fortune to ALJ Jones dated October 2, 2006) shall be paid the applicant's attorney within 30 days.

The amount due the applicant within 30 days for accrued disability compensation to September 11, 2007, is $41,835.80,(3)  which equals the accrued award ($56,426.67), less the accrued fee thereon ($11,285.33), less costs ($3,305.83). The amount remaining to be paid to the applicant as it accrues after September 11, 2007, is $28,458.67, which equals the unaccrued portion of the award ($35,573.33), less the future value of fee ($7,114.66) thereon. That amount shall be paid to the applicant in monthly installments of $797.33 per month, beginning on October 11, 2007.

The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury documented in exhibit P (from the September 26, 2006 hearing)(4)  hearing as follows: from Alexian Brothers Medical Center, $16,168.10, of which $284.67 has been paid by the applicant, $4,215.33 has been paid by Aetna, and $11,668.10 has been adjusted from the bill; from Suburban Lung Associates, $1,335.00, of which $111.22 has been paid by the applicant, $714.58 has been paid by Aetna, and $509.20 has been adjusted from the bill; from Children's Hospital of WI, $1,678.25, all of remains unpaid; from Medical College of WI, $372.00, all of which is unpaid; from Mineral Area Regional Medical Center, $3,609.71, of which $53 has been paid by the applicant, $3,503.71 has been paid by Aetna, and $53 has been adjusted from the bill, from Walgreens, $11,095.35, of which $3,965.38 was paid by the applicant and $7,129.97 was paid by Aetna.

Drs. Marcum, Patano and Fink all have opined that further treatment will be necessary for the applicant's chronic asthma condition. Dr. Fink explains that the applicant should have 2 or 3 doctor's visits per year, with chest x-rays and pulmonary function tests done at intervals. Accordingly, this order shall be left interlocutory to permit additional orders and awards regarding further temporary disability, permanent disability and medical expense that may arise in the future.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, James J. Rose, Forty-one thousand eight hundred thirty-five dollars and fifty cents ($41,835.50) in disability compensation.
2. To the applicant's attorney, Richard A. Fortune, the sum of Seventeen thousand five hundred forty-five dollars and eighty-four cents ($17,545.84) in fees and Three thousand three hundred five dollars and eighty-three cents ($3,305.83) in costs.
3. To Children's Hospital of WI, One thousand six hundred seventy-eight dollars and twenty-five cents ($1,678.25) in medical treatment expense.
4. To Medical College of WI, Three hundred and seventy-two dollars and no cents ($372.00) in medical treatment expense.
5. To Aetna, Fifteen thousand five hundred sixty-three dollars and fifty-nine cents ($15,563.59), in reimbursement of medical expenses paid.
6. To the applicant, Four thousand four hundred fourteen dollars and twenty-seven cents ($4,414.27) in out-of-pocket medical expenses.

Beginning on October 11, 2007, and continuing on the eleventh day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred ninety-seven dollars and thirty-three cents ($797.33) per month, until the additional amount of Twenty-eight thousand four hundred fifty-eight dollars and sixty-seven cents ($28,458.67) has been paid.

Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.

Dated and mailed September 11, 2007
roseja : 101 : 1 ND §§ 3.4  3.42  5.31

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He noted that the activator containing the isocyanates came in a smaller container than the 55-gallon drum mentioned in Dr. Fink's report. He observed that the applicant was a trained chemist who presumably knew how to handle chemicals, including isocyanates, safely. However, as explained above, the commission is satisfied that applicant's exposure was sufficient to cause asthma. The question of causation turns to a large extent on the credibility of the medical experts, none of whom testified before the ALJ. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998). For the reasons explained above, the commission found the opinions of Drs. Patano, Marcum and Fink most credible on diagnosis, causation and extent of disability.

cc:
Attorney Richard A. Fortune
Attorney Robert P. Ochowicz



Appealed to Circuit Court. Affirmed October 9, 2008.

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Footnotes:

(1)( Back ) If a work causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). See also: Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971).

(2)( Back ) This was the applicant's last day of work. At least arguably, the date of injury could have been based on a September 26, 2001 date of disability occurring when the applicant missed work after seeking treatment for symptoms of chest discomfort and breathing difficulty. Since the parties raise no dispute on this point, however, the commission adopts the October 26, 2001 date stated in the hearing application and the preliminary recitals at the March 14, 2006 hearing.

(3)( Back ) The parties stipulated that, if total disability were found, there would be a credit for short-term disability payments made by the employer in the net amount of $24,414 for payments the worker's compensation insurer would have to remit to the employer. March 14, 2006, transcript, page 5. The commission has not ordered payment of total disability here, nor can it conclude from the record that any short-term disability payments made cover the same disability as the permanent partial disability payments it now awards. See Thao v. Oshkosh Truck Corp., WC claim no. 2004-023344 (LIRC, January 31, 2007). Consequently, this order does not direct to payment to the employer under Wis. Admin. Code § DWD 80.30(7).

(4)( Back ) The record contains two exhibit P's, one admitted at the hearing on March 14, 2006 and another at the hearing on September 26, 2006. The medical expense award is based on the second exhibit P, which appears to be more complete.

 


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