JACK C JENSEN (DECD), Applicant
API CONSTRUCTION CO, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
API Construction Company and Zurich American Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 20, 2009. Applicant Sandra Jensen submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not the deceased applicant Jack C. Jensen's mesothelioma, which resulted in his death, arose out of and in the course of his employment with the employer. If work causation is found then liability for medical expense, burial expense, and contribution to the Work Injury Supplemental Benefit Fund also arise as issues.
The commission has carefully reviewed the entire record in this matter and hereby affirms the ultimate findings of the administrative law judge, but modifies his findings and order to conform with the following:
Jensen's treating physician, Dr. Hamed R. Rezazadeh, attributed direct work causation for the mesothelioma to Jensen's work exposure with the employer. Dr. Rezazadeh's letter of explanation dated May 11, 2008, notes the fact that Jensen was employed by the employer in 1960, 1962, and 1970, and again from 1977 to 2004. Dr. Rezazadeh checked the direct causation box in his WKC-16-B, but in the May 2008 letter he opined that Jensen's employment with the employer "...significantly contributed to the patient's diagnosis of malignant mesothelioma and its progression." The commission infers from Dr. Rezazadeh's stated opinions that he considered Jensen's exposure to asbestos while working for the employer in 1960, 1962, and 1970, to have constituted a material contributory causative factor in the contraction of his mesothelioma.
The employer and its insurer secured an opinion from Dr. Stuart A. Levy in a form WKC-16-B, and in a letter, both dated April 18, 2007. Dr. Levy opined in the letter:
"The latency period for MM is defined as the interval between exposure responsible for causation of the tumor and discovery of the neoplasm, and is generally agreed to be usually 30-45 years. [References omitted]. In this case all well documented exposure before 1973 (30 years before 2003) would be considered a material contributory causative factor in the onset of the neoplasm. Any exposure after that time would not be material, since the malignant cell would have already been formed. (emphasis in original).
It is therefore my opinion, with a reasonable degree of medical probability that in view of the shortest generally acceptable latency period of 30 years between exposure to asbestos necessary to cause a mutated malignant cell, and the discovery of the malignant mesothelioma, any exposure before 1973 in this case would be a material contributory factor in the onset of the tumor. Any exposure after that would not be a factor in the causation of the mesothelioma or in the precipitation, aggravation, or acceleration of any preexisting condition beyond normal progression. This would include the period during his employment at API Construction."(2)
It is evident from his written report and hearing testimony that Dr. Levy was under the mistaken impression that Jensen performed no work for the employer prior to 1977. Regardless, Dr. Levy opined that any work exposure to asbestos Jensen experienced prior to 1973 was a material contributory factor in the onset of his mesothelioma. Dr. Rezazadeh was aware of Jensen's work exposure with the employer in 1960, 1962, and 1970, and consistent with Dr. Levy's causation opinion, indicated that such exposure significantly contributed to the cause of his mesothelioma. Accordingly, the arguments proffered by the parties regarding the duration of the latency period for the disease are rendered moot by the fact that both Dr. Levy and Dr. Rezazadeh concluded that Jensen's work exposures with the employer in 1960, 1962, and 1970 were causative of the disease. Dr. Levy's opinion in this regard was given unwittingly, but nevertheless was given as medical fact.
It should be noted that even though Jensen worked for other employers between 1970 and 1977, and that such employment included exposure to asbestos, API Construction Company was his last employer whose employment contributed to the occupational mesothelioma. The final period of employment need not include additional exposure, as long as a prior period of employment with the employer did include exposure. Therefore, API Construction Company is solely liable for this occupational disease. Northwestern Insulation v. LIRC, 147 Wis. 2d 72, 78-80, 432 N.W.2d 620 (Ct. App. 1988); Travelers Ins. Co. v. ILHR Dept., 85 Wis. 2d 776, 784, 271 N.W.2d 152 (Ct. App. 1978); Montello Granite Co. v. Ind. Comm., 227 Wis. 170, 188-89, 278 N.W. 391 (1938).
Jensen sustained occupational mesothelioma arising out of and in the course of his employment with the employer, with a date of injury on August 9, 2004, resulting in his death on February 15, 2005. Respondents are therefore responsible for payment of death benefits totaling $206,100.00, of which $172,024.80 will have accrued as of September 9, 2009. A 20 percent attorney's fee, less an interest credit of $252.81, plus costs of $3,739.01, will be subtracted from the accrued benefit. The present value of the attorney's fee amounts to $40,967.19. The currently-unaccrued death benefit that will be ordered paid to Sandra Jensen amounts to $34,075.20.
Respondents are additionally responsible for payment of $6,000.00 to Sandra Jensen for funeral expense,(3) and for payment of $10,000.00 to the Work Injury Supplemental Benefit Fund.(4)
Finally, respondents are responsible for reasonably required medical expenses as enumerated in Applicant's Exhibit I, totaling $94,180.04, to be reimbursed to Principal Insurance. Respondents are additionally responsible for $6,078.73 due Sandra Jensen as reimbursement for out-of-pocket medical and medical mileage expense.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, respondents shall pay to the deceased applicant's wife, Sandra Jensen, accrued death benefits in the amount of One hundred twenty-seven thousand sixty-five dollars and seventy-nine cents ($127,065.79); to applicant's attorney, Matthew Yde, fees in the amount of Forty thousand nine hundred sixty-seven dollars and nineteen cents ($40,967.19), and costs in the amount of Three thousand seven hundred thirty-nine dollars and one cent ($3,739.01); to Principal Insurance reimbursement in the amount of Ninety-four thousand one hundred eighty dollars and four cents ($94,180.04); to Sandra Jensen as reimbursement for medical and medical mileage expense the sum of Six thousand seventy-eight dollars and seventy-three cents ($6,078.73); to Sandra Jensen for funeral expense the sum of Six thousand dollars ($6,000.00); and to the Work Injury Supplemental Benefit Fund the sum of Ten thousand dollars ($10,000.00).
Beginning on February 9, 2009, and continuing monthly thereafter, respondents shall pay to Sandra Jensen the amount of Two thousand nine hundred seventy-seven dollars ($2,977.00), until the currently-unaccrued death benefit has been paid in the total amount of Thirty-four thousand seventy-five dollars and twenty cents ($34,075.20).
Dated and mailed September 8, 2009
jenseja : 185 : 5 ND § 3.4, 3.42
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Matthew E. Yde
Attorney Kurt Anderson
Abby Butler (WC Division)
Asst. Attorney General Corey Finkelmeyer
Appealed to circuit court. Affirmed August 17, 2010.
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