ANNA M WILSON, Applicant
PICK N SAVE, Employer
OLD REPUBLIC INS CO, Insurer
The applicant submitted a petition for commission review, as did the respondents (Pick N Save and Old Republic Insurance Company), both alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 27, 2008. Briefs were submitted by the parties. At issue are whether or not the applicant sustained an occupational injury in the form of asthma arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is June 18, 1957, began her employment in September 1999 as a baker in the employer's bakery department. Approximately six months later she became the manager of the bakery department, which involved supervisory as well as baking duties. She spent "98 percent" of her time in the baking area, and her claim is that she acquired occupational asthma (baker's asthma) from exposure to flour dust. She began experiencing coughing symptoms about nine months after starting the job, and they progressively worsened. She first treated with her regular physician, who prescribed medications that included inhalers.
The applicant continued to work in the bakery until June 18, 2005, but at that time her symptoms caused her to transfer to another area of the grocery store at a lower wage. In September 2005, she underwent right total knee replacement surgery, and when she healed she was restricted to sedentary work. The employer did not have such work available and her employment ended. In January of 2006, she found employment in the medical records department of G. I. Associates.
On September 6, 2006, she was referred to a pulmonary specialist, Dr. Susan Darmstadter, who ordered a methacholine challenge test that was positive, and Dr. Darmstadter diagnosed baker's asthma. Dr. Darmstadter opined that the precipitating cause of the applicant's asthma was her exposure to flour dust at the employer's bakery.
At respondents' request, Dr. James Foster examined the applicant on May 25, 2007. In his report he agreed with the diagnosis of asthma, but pointed to a lack of testing that might support the conclusion that the applicant had been sensitized to a particular bakery antigen. Additionally, he opined that the relatively low amount of flour dust in the applicant's employment setting, and the length of time she was able to tolerate working in that setting, argued against work causation.
Dr. Darmstadter replied in a subsequent report that often the particular antigen causing occupational asthma cannot be readily determined, which is why that type of testing is not commonly done. She opined that the applicant's history of exposure in a bakery department, and the onset of symptoms after that exposure, is a classic scenario for baker's asthma.
As previously noted, Dr. Foster did not dispute the fact that the applicant has developed asthma. He acknowledged that it is "biologically plausible"(1) that the applicant's asthma is causally related to her work exposure with the employer, but he rejected this medical inference because there had been no "objective documentation" in the form of skin or blood testing for specific sensitization to bakery allergens.(2) Dr. Foster indicated it was also "biologically plausible" that the applicant's asthma could have developed due to frequent respiratory tract infections including sinus infections, bronchitis, and otitis, as well as a prior history of smoking. Dr. Foster went on to note that there "can be numerous causes for the development of asthma,"(3) and that anxiety and elevated body mass can also be contributory to the disease. Dr. Foster excluded the applicant's work exposure as a causative factor based primarily on what he considered to have been inadequate testing, and on what he considered to have been the applicant's "quite limited" exposure to flour compared to what she would have been exposed to in a commercial bakery.
Dr. Foster's medical observation and opinions are informative, but the commission finds them to be inconclusive. Dr. Darmstadter credibly opined that Dr. Foster's own summary of the applicant's symptom history documents the fact that the applicant started having problems after beginning her employment in the bakery, and that these symptoms were classic for baker's asthma. Dr. Darmstadter further explained that baker's asthma is routinely diagnosed by historical/clinical presentation, without testing, because it can be very difficult to ascertain the specific antigen in the bakery environment that is causing the asthmatic reaction. Additionally, from an empirical standpoint, it is persuasive that the applicant found herself unable to continue working in the bakery department employment because of the symptoms she experienced in that environment. Dr. Darmstadter's opinion of causation is credible.
Dr. Darmstadter is uncertain whether or not the applicant's asthma will restrict her to dry, non-dusty work environments, but she is certain the applicant cannot be exposed to flour dust. In Butler v. Industrial Commission, 57 Wis. 2d 190, 197, 203 N.W.2d 687 (1973), the court stated:
"We conclude that the circuit court was correct in its ruling . . . and order . . . to evaluate the claimant's disability in terms of actual wage loss, based on the extent of earning capacity."
Accordingly, in order to calculate the applicant's permanent partial disability award in this case, in which her disability is triggered only by working in certain environments, an assessment must be made of her impairment of earning capacity that includes her actual wage loss attributable to the work injury. At the point the applicant left her position in the employer's bakery department and began working in another area of the grocery store, she reached a healing plateau from the exposure that caused her occupational asthma. In her new position with the employer she earned $11.75 per hour, without overtime, until her knee disability caused her discharge. She had been earning $13.84 per hour in the bakery, but also received an annual bonus and regularly worked overtime. In her last full year of employment in the bakery department in 2004, she had earned $32,230. Multiplying $11.75 times the annual work hour total of 2,080 yields $24,440, which is just under 76 percent of $32,230. In strict arithmetical terms, this would mean just over a 24 percent loss of earnings. The commission considers this to be a significant factor in computing the applicant's impairment of earning capacity, because it was a loss directly related to the work injury, and was calculable after the exposure ended, but before the employment with the employer ended for unrelated reasons.
At the hearing, the applicant presented payroll records revealing that at GI associates between January 2007 and the end of May 2007, she earned $8,904.52 for 740 hours of work, or approximately $12.03 per hour. Multiplying $12.03 times 2,080 hours yields $25,022.40, which is just over 77 percent of $32,230. Of course, this is a comparison of a 2007 wage rate with a wage earned in 2004.
The applicant's vocational expert, Daniel Kuemmel, assessed her loss of earning capacity attributable to the work injury to be anywhere from 25 to 31 percent. Without repeating all the facts and analyses articulated in Mr. Kuemmel's report, it must be noted that the applicant has hovered around the 25 percent loss figure since her bakery department employment ended. For this reason, and considering the additional analyses set forth in Mr. Kuemmel's report, the commission accepts his assessment of 25 percent loss of earning capacity.
The administrative law judge found an average weekly wage of $624.63 based on the applicant's W-2's and testimony, and neither the applicant nor the respondents have disputed the accuracy of that finding. Accordingly, that figure is accepted as the applicant's average weekly wage.
A 25 percent loss of earning capacity amounts to 250 weeks of compensation at the applicable rate of $242 per week, for a total of $60,500. This compensation began accruing as of June 18, 2005. The applicant's attorney is entitled to a 20 percent fee against this entire award, as well as costs. The costs are uncertain due to the post-hearing submission of Dr. Darmstadter's report, and the failure of applicant's attorney to update the commission concerning costs. Accordingly, the commission will order payment of $20,000 in accrued permanent partial disability to be paid immediately to the applicant, which will make this order appealable. The commission will remand the matter to the department for calculation of the balances due for accrued and unaccrued compensation, as well as for attorney fees and costs.
The record before the commission does not address specific medical expense claims, but the administrative law judge included in his decision a general order for respondents to pay "...reasonable and necessary medical expenses related to this work injury, along with mileage expenses." The commission infers that the parties chose to resolve the issues of causation and permanency, and leave the medical expense issue for later resolution, should work causation be found. Accordingly, this order will be interlocutory with respect to the medical and mileage expenses related to the work injury. The applicant may also require future medical treatment and therefore jurisdiction will be reserved.
Now, therefore, this
The Findings and Interlocutory Order of the administrative law judge affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant as accrued compensation for permanent partial disability the sum of Twenty thousand dollars ($20,000). The matter is remanded to the department for calculation of balances due for accrued and unaccrued compensation, attorney fees, and attorney costs, in conformance with the above findings. The applicant's attorney shall immediately contact the department with an itemized summary of costs.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed September 9, 2008
wilsoan . wrr : 185 : 6 ND § 5.32
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission's partial reversal of the administrative law judge's decision is based on analysis of undisputed facts concerning the applicant's wages and employment. The commission had no disagreement with the administrative law judge regarding the credibility of the applicant, who was the only witness at the hearing.
cc:
Attorney Dennis Wicht
Attorney Robert Zilske
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]