KATHLEEN FEUCHT, Applicant
MILAEGERS GARDEN MARKET, Employer
REGENT INSURANCE COMPANY, 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 September 29, 2008
feuchtk . wsd : 101 : 1 ND
3.38, 8.18, 9.2
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
MEMORANDUM OPINION
1. Posture.
The applicant claims compensation for an accidental back injury on May 29, 2005 and followed by an additional back injury due to work exposure through December 15, 2005. The applicant also testified she had an exacerbation or increase in her back pain, after the two work injuries, while mowing the grass at home in September 2006.
The ALJ found that compensable injuries occurred on May 29, 2005 and December 15, 2005. She found an end of healing with no permanency with respect to the May 29, 2005 injury as of July 1, 2005. She also found the applicant suffered a compensable injury from occupational disease on December 15, 2005, arising from her work duties, particularly those in November and December 2005. She noted the increase in symptoms--including pain radiating to the legs with tingling--in December 2005, which led Dr. Zablotney to diagnose lumbar radiculopathy or a hernatied nucleus pulposus on December 15, as well as order an MRI and refer the applicant to pain management treatment. The ALJ felt that Dr. Karr, the examiner retained by the employer and its insurer (collectively, the respondent) gave too little weight to the applicant's work duties in those months. She noted, too, that Dr. Karr believed that operating a self-propelled lawn mower on a single day could aggravate a degenerative condition, while the work duties of repetitive poinsettia lifting over the course of two months did not. She went on to find that the increase or exacerbation of the applicant's symptoms on September 2, 2006, was compensable under Lange v. LIRC, 215 Wis. 2d 561 (Ct. App. 1997).
On appeal, the respondent makes three points:
1. It did not have notice that the applicant was claiming a compensable reinjury on September 2, 2006, so it was denied due process.
2. The evidence does not support the conclusion the applicant was reinjured on September 2, 2006.
3. The ALJ erroneously relied on the Lewellyn standard that applies to accidental events that aggravate a pre-existing condition beyond normal progression, rather than the occupational disease standard that applies to an appreciable period of work place exposure that is at least a material contributory causative factor in a condition's onset or progression.
2. Discussion.
a. Notice; due process
In support of its notice and due process argument, the respondent cites Waste Management, Inc, v. LIRC, 2008 WI App 59. That case involved a worker's claims against two employers, and the parties explicitly agreed before the hearing that the claim against Waste Management was based on an accidental injury, not occupational exposure. Nonetheless, the commission found Waste Management liable based on an occupational disease theory. The court of appeals reversed, noting that because it could not know it faced potential liability on an occupational disease theory, Waste Management could not be held liable.
Waste Management relies to some extent on an earlier case, Wright v. LIRC, 210 Wis. 2d 289 (Ct. App. 1997). There, the applicant only claimed temporary disability and only that issue was litigated before the ALJ. However, the commission, in its decision, effectively denied compensation for permanent disability as well. The court of appeals reversed the commission's decision, noting that due process in quasi-judicial administrative hearings turns on the presence or absence of "fair play" the elements of which are:
(1) the right to reasonably know the charges or claims;
(2) the right to meet such charges or claims with competent evidence; and
(3) the right to be heard by counsel upon the probative force of the evidence presented by both sides of the applicable law.
Wright v. LIRC, at 210 Wis. 2d 296.
Due process was also considered in Zimbrick v. LIRC, 235 Wis. 2d 132 (Ct. App., 2000), where the court of appeals stated that the fundamental requirements of procedural due process are notice and an opportunity to be heard. The court further held that, to be adequate, notice:
Must be reasonably calculated to inform the person of the pending proceeding and to afford the person an opportunity to object and defend his or her rights.
Id., 235 Wis. 2d at 138. In Zimbrick, the court held that the notice provided was inadequate. However, the court went on to state that even where a notice is inadequate, or partially inadequate, the party seeking relief must demonstrate prejudice. Id, at 235 Wis. 2d 139. The court went on to state that in order to show prejudice, a party must show evidence or an argument that she could have made but that the ALJ did not consider. Id., at 235 Wis. 2d 140, 141.
In light of these cases dealing with due process and notice generally, the commission cannot conclude the respondent has been denied due process in this case. First, the parties neither expressly agreed that the ALJ should not consider the effect of the September 2, 2006 off-duty lawn mower incident, nor did the ALJ limit testimony or evidence on that incident. Indeed, both parties' doctors gave opinions on the effect of the lawn mowing, and those opinions were admitted into the record without objection. In particular, Dr. Karr opined on behalf of the respondent that the lawn mowing incident--and not a work accident or work exposure--aggravated the applicant's underlying degenerative condition beyond normal progression. Moreover, the respondent did not object to the introduction exhibit B which includes the questionnaire in which Dr. Block directly addressed the compensability of the off-duty lawn mowing incident under Lange. The commission cannot conclude that the respondent lacked adequate notice that the September 2006 off-duty incident would be raised at the hearing--assuming formal notice of that incident is even required--much less that it was prejudiced by a failure of notice.
On the separate question of whether the applicant was required to provide formal "notice" of a claim based on the September 2006 lawn mowing incident, consideration must be given to the nature of subsequent off-duty incidents and their effect on a worker's compensation claim based on an earlier injury at work. Wright and Waste Management mandate notice with respect to pending proceedings, and with respect to the claims and charges raised in that proceeding. Is the occurrence of a subsequent off-duty incident and its relationship or linkage to an earlier work injury a separate "claim" or "charge"? Regarding compensable off-duty "re-injuries," the court of appeals has noted:
...a re-injury is compensable if it is caused by the weakened condition of a worker, Western Lime & Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304 (1928), or if the work-related injury made the worker more vulnerable to re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d 196, 200-01 (1969). LIRC also specifically concluded that Lange's second injury "alone was responsible for the dramatic change," thereby implying that if the first injury was related to the results caused by the second injury, the injury would be compensable.
We agree with this implicit conclusion. A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.
Lange v. LIRC, 215 Wis. 2d at 567-68.
Burton, in particular, is noteworthy. In that case, the worker--a firefighter--hurt his back sliding down a pole at work after which he had some continuing pain, but then experienced a great increase in pain after sneezing at home. The case was initially paid by the department examiners on the finding that the pole-sliding incident proximately caused the worker's disability following the later sneeze at home. The supreme court ultimately agreed with that finding, noting there was no credible evidence that the pole-sliding incident did not so weaken the structure of the disc so that a simple sneeze at home brought on the disc herniation. In both Burton and Lange, the courts focused on the effect of injury at work on the injured worker's claim for disability--the relationship between the injury at work and the worker's condition after the subsequent off-duty incident--not on the occurrence of the off-duty incident as some separate event necessary to establish the respondent's liability.
While off-duty incidents such as those involved in Lange and Burton are sometimes called "compensable reinjuries," the off-duty incident does not establish a separate or new date of injury establishing the basic liability of an employer or insurer. Indeed, the intervening event of an off-duty incident might be viewed as something in the nature of a potential defense available to an employer or insurer, but a defense whose effectiveness is limited by the "substantial factor" test discussed in Burton and Lange. An employer or insurer's liability under Lange and Burton arises from the injury occurring at work, not the subsequent incident or reinjury off-duty, even though that off-duty incident may result in increased amount of disability and medical expense compensation attributable to the earlier work injury.(1) In short, the subsequent off-duty event is not a "charge" or a "claim" which must be pleaded or for which specific formal notice is required under Waste Management or Wright.
b. Did the applicant exacerbate or increase her symptoms while cutting grass on September 2, 2006?
The commission also cannot accept the respondent's assertion that the record does not establish that the applicant reinjured herself--or suffered an exacerbation or increase in symptoms--while mowing grass off duty on September 2, 2006. Dr. Pannu's note of September 5, 2006 documents the onset of radicular pain after mowing grass a couple of days earlier. The applicant's medical expert, Dr. Block wrote a report credibly explaining how the change in symptoms related to, or is linked to, the earlier work injuries. The respondent's own medical expert, Dr. Karr, reports that an injury occurred with mowing the lawn on September 2, 2006, though again he less credibly opines it was the sole cause of her disability. Finally, even if there were no injury while mowing the grass on September 2, 2006, the respondent would remain liable for the applicant's current condition which is casually-related to the December 13, 2005 work injury.
c. Did ALJ apply the wrong standard for occupational disease?
The last issue is whether the ALJ erroneously relied on the Lewellyn(2) standard rather than the occupational disease standard when analyzing causation in this case. The court of appeals has recently explained that
10 Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. ... An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." ... An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." ...
Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, 288 Wis. 2d 206. As the applicant points out, however, the court of appeals--discussing the
Lewellyn holding--has also observed that the contrast between accident and occupational disease is gradually losing its importance in this type of case. See:
Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App. 1982). It is also noteworthy that the
Lewellyn case itself used the words "work activity" in stating the standard the respondent contends the ALJ erroneously applied. Further, regardless of the ALJ's analysis, the commission itself considered whether the
applicant has shown an appreciable period of work place exposure that is at
least a material contributory causative factor in the onset or progression of
the applicant's disability condition,(3) and reaches the same result as the ALJ.
cc:
Attorney Michele A. Peters
Attorney John E. Drana
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