BERNARD ELFERING (DEC'D), Applicant

WISCONSIN PRECISION CASTING, Employer

CONNECTICUT INDEMNITY CO, Insurer

UNITED WISCONSIN, 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 January 28, 2008
elferbe . wsd : 175 : 9 ND § 3.4

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer and its insurer, United Wisconsin, contend in their petition for commission review the administrative law judge erred in determining the applicant's date of injury for his work related silicosis was his last day of work for the employer on December 20, 2002, when he retired. The employer and United Wisconsin contend that the date of injury was actually April 23, 1990 when the applicant missed 1.5 hours of work to attend a medical evaluation at the Burlington Clinic. The employer and United Wisconsin contend in the alternative the date of disability could also have been May 17, 1990 when the applicant lost 1 hour of wages to attend a medical evaluation at the Burlington Clinic, or June 1, 1990 when he was seen for continued complaints of coughing, and also February 6, 1992 when the applicant lost 8.0 hours of work to seek a second opinion from Dr. Newman.

The case was heard based upon stipulated facts and relevant medical records. The stipulated facts include the applicant underwent chest X-rays on March 11, 1989 which revealed evidence of diffuse opacity suggesting silicosis. The applicant missed work on March 17, 1989 for a physical examination and was diagnosed with coronary artery disease, a frozen right shoulder, and mild silicosis due to work exposure. The applicant was transferred out of the grinding room where he performed his usual work to an inspection position in a separate area of the plant on October 1, 1989. The transfer was undertaken to minimize silica exposure in light of X-ray evidence of silicosis, but the new position required periodic use of a pencil grinder to remove some of the blemishes from the surface of finished castings. It is not established from the stipulated facts and the medical records whether this transfer was undertaken at the behest of the employer or whether any of the applicant's treating physicians recommended that he make such a change. At the time the applicant was diagnosed with silicosis in 1989 it was recommended that he undergo yearly chest X-rays and spirometry testing.

The treatment notes on April 23, 1990 state the applicant has been having upper respiratory symptoms for the past week although he seems to be improving somewhat and his right shoulder still bothers him. The applicant had lung function testing done at work and he has been told that he cannot wear any kind of respiratory mask, and he is to stay away from grinding completely. The medical notes state that this is not such a bad idea although lung function tests show some improvement and his lungs were clear, with dry harsh cough. There is no further testing recommended but repeat pulmonary function tests in one year.

A May 17, 1990 treatment note states the applicant has been coughing at night for the past three or four weeks and his family was afflicted with strep infection about one month ago. The applicant was found to have a harsh non-productive cough but his lungs were totally clear without blockages, and he was diagnosed with acute bronchitis as well as silicosis. On June 1, 1990 the applicant was reported to have a continuing cough and had minimal, if any, improvement with medication. The medical notes state that the applicant and his foreman were in a bit of a battle about his industrial exposure and the applicant denied having a fever or chills. The applicant's lungs were clear and he was again diagnosed with acute bronchitis, probably viral, as well as silicosis. The applicant's pulmonary spirometry showed no obstruction but moderate restriction.

On February 6, 1992 the applicant lost one day's work to attend a medical appointment at Waukesha Memorial Hospital for a second opinion regarding his silicosis, during which time pulmonary function testing was performed. A medical services form signed by a physician on February 6, 1992 states that the applicant may return to full duty and he should remain out of silica exposure.

The applicant was evaluated by Dr. Schlueter on September 11, 1992. Dr. Schlueter noted the applicant has developed simple silicosis while employed as a grinder with the employer. Dr. Schlueter states that currently the applicant does not have appeared to have suffered any pulmonary disability. Dr. Schlueter stated this lack of pulmonary disability is supported by the fact the applicant is able to ambulate without significant dyspnea, he has normal pulmonary function studies except for a slightly reduced diffusing capacity, and is able to perform while under exercise testing. Dr. Schlueter recommended the applicant avoid exposure to silica and use a proper fitting respirator at all times when performing any function that might potentially expose him to silica.

The applicant continued to work for the employer away from silica and while wearing a respirator for several years. The applicant subsequently developed esophageal cancer. The applicant subsequently worsened in his silicosis symptoms and along with his other physical problems decided to retire due to an inability to work on December 20, 2002.

The issue in this case is to determine the date of disability for the applicant's work-related silicosis. The question is when the occupational disease ripened into a disabling condition. Virginia Surety Co. Inc. v. LIRC, 258 Wis. 2d 665 (Ct. App. 2002). In deciding when a disease has ripened, the court of appeals in Virginia Surety noted that it looks at whether an actual physical incapacity to work exists rather than a medical or a pathological disability which results in wage loss.

In a similar case to our current case involving silicosis, Murphy v. Badger Mining Corp., (LIRC Jan. 26, 2006), the commission noted that before finding an occupational disease date of disability the fact-finder must first determine whether the evidence demonstrates that the disease affected the individual's physical ability to work. In the Murphy case the applicant did seek treatment for minor respiratory symptoms associated with his developing work-related silicosis, however the evidence did not establish that these symptoms had interfered with his physical ability to perform his own work, and therefore was determined to be non-incapacitating as that term applies to occupational disease. The commission held in Murphy that the applicant's silicosis did not ripen into a physically incapacitating disease simply because he chose to miss work to undergo treatment in the form of a diagnostic procedure.

The commission noted in the Murphy case that had the applicant's respiratory symptoms at that time been interfering in any way with his physical ability to perform his work for the employer it would be a different matter. In our current case the evidence did not indicate the applicant lost time at work due to an inability to perform his work caused by his symptoms due to his silicosis on April 23, 1990, May 17, 1990, June 1, 1990, or February 6, 1992.

When the applicant was seen for a cough on April 23, 1990 and May 17, 1990, the diagnosis was bronchitis as well as silicosis. There is nothing in the medical records to indicate that the applicant had any inability to perform his work on those days because of the silicosis. The fact that the applicant simply sought treatment on those days for symptoms which could have been due to his silicosis as well as to bronchitis does not establish a date of injury. As the commission noted in the Murphy case, the applicant experienced respiratory symptoms that concerned him and his physician but which did not affect his physical ability to work. The evidence in our current case indicates the applicant undertook medical monitoring and precautionary steps due to his work-related silicosis. However, the evidence does not indicate the applicant had any lost time from work prior to December 20, 2002 due to an inability to perform his normal work caused by his work-related silicosis. It appears that the applicant was initially removed from his normal work in the grinding room as a precautionary measure and not due to any inability to perform his normal work.

In addition, Dr. Schlueter's assessment in September 1992 indicates the applicant had a fairly normal lung testing and had not as yet experienced any disability due to his work-related silicosis. As the commission found in the Murphy case, although the applicant did have minor respiratory symptoms associated with his developing work-related silicosis, the symptoms had not interfered with his physical ability to perform his work and therefore was not incapacitating as that term applies to occupational disease.

The employer argues that the record clearly establishes the applicant had suffered from the effects of occupationally-induced silicosis since 1989 and that such disease had incapacitated him from work on numerous occasions before his final date of employment. However, the commission does not find that the record substantiates the claim that the applicant was incapacitated from his work on numerous occasions due to his silicosis prior to his last day of work. Rather it appears from the record that the applicant underwent periodic monitoring and sought treatment for minor symptoms, but there is no indication the applicant was actually incapacitated from performing his normal work due to his silicosis symptoms prior to December 20, 2002. Therefore, the commission finds that the date of disability in this case is December 20, 2002, and United Wisconsin was the insurance carrier on the risk for the employer on that date. Since the date of injury is December 20, 2002 there is no basis to assign liability to the Work Injury Supplemental Benefit Fund and the administrative law judge appropriately dismissed the employer and United Wisconsin's request to implead the Work Injury Supplemental Benefit Fund.

cc:
Attorney Timothy Mistrioty
Attorney Lisa F. Kinney
Attorney Roland C. Cafaro
Attorney Jennifer Lattis
Abby Butler

Appealed to Circuit Court.  Affirmed September 3, 2008.  Appealed to Court of Appeals.   Affirmed on May 27, 2009.

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