DAVID MARTINSON, Applicant
CITY OF STURGEON BAY, Employer
LEAGUE OF WIS MUNICIPALITIES MUTUAL, Insurer
WORK INJ SUPP BEN FUND
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, except that it makes the following modifications:
1. Delete the last two sentences of the first full paragraph beginning on page 7 of the ALJ's decision and substitute:
"The applicant has not worked since January 26, 2006. Wisconsin Stat. § 102.01(2)(g) provides:
102.01(2)(g) Except as provided in s. 102.555 with respect to occupational deafness, "time of injury", "occurrence of injury", or "date of injury" means:
...
2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.
"While the date of disability in terms of the first instance of wage loss due to the disabling effects of the occupational disease occurred on January 31, 2006, the applicant's date of injury in this case is his last day of work, January 26, 2006. The City and the League are liable for the applicant's benefits based on that date of injury, though entitlement to disability compensation begins with the date of disability, January 31, 2006.".
2. Substitute "January 26, 2006" for "January 31, 2006" in the first sentence of the second full paragraph beginning on page 9 of the ALJ's decision, in the first sentence of the first full paragraph beginning on page 10 of the ALJ's decision, and in the first sentence of the second full paragraph beginning on page 12 of the ALJ's decision.
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed December 17, 2009
martins . wmd : 101 : 1 ND
3.4, 3.42
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Facts and posture.
The applicant was born in 1952. He is a laborer for the employer, where he was employed for 27 years. He is seeking disability for a back injury, which he claims was caused by his years of heavy employment through January 2006.
The applicant has had prior back complaints. He hurt his back lifting trash cans at work in June 1983, for which he underwent a laminectomy in July 1983, followed by a fusion in 1984. Thereafter, the applicant was off work due to back pain for six weeks in early 1985. He treated for back pain on February 6, 1986, and then again apparently in November 1987. In May and June 1994, he was off work for six days after twisting his back coming out of a truck at work. He treated for back complaints again after cutting grass at work on September 7, 2000; he was taken off work for two days on this occasion. He missed a day of work after lifting a manhole cover in January 2002.
Despite his history of treatment, the applicant was always able to return to full duty work subject only to a restriction that he avoids jackhammer work. The applicant testified that in his last month of employment (January 2006), he cleaned storm sewers and catch basins, picked up Christmas trees, and patched potholes. His supervisor, Gerald De Marb, testifying adversely, acknowledged that the applicant did mostly labor work; that his work required stooping, bending, and lifting; and that in January 2006 the applicant used a pick, shovel and clam to clean out catch basins. Mr. De Marb acknowledged, too, that the applicant's accident report for January 26, 2006 was accurate, and that the work he was doing on that day was strenuous on the back.
On January 26, 2006, the applicant testified, he was cleaning out storm sewers and doing repetitive bending and lifting. He felt a pain in his back, which radiated down his right buttock. He sought treatment, and was given work restrictions. The applicant has not returned to work because the employer declined to take him back at less than full duty. He has undergone injections and a discogram; his doctors have recommended fusion surgery or disc replacement.
The parties' medical experts varied on whether the applicant's back problems were caused by:
The ALJ concluded the applicant's back injury was occupational--that it was caused by his occupational exposure to heavy lifting. Regarding causation, the ALJ found the report of Jerome Lerner, M.D., most credible. The relevant part of Dr. Lerner's report is quoted at length in the ALJ's decision.
2. Discussion.
a. Causation.
The commission agrees with the ALJ's conclusion that the applicant's current disabling back condition was caused by occupational disease. There seems to be little question that his back complaints are genuine. Nor does there seem to be evidence of a traumatic injury on January 26, 2006. On the other hand, the applicant's duties--performed over a 27 year span--must be viewed as strenuous.
The respondent asserts that the applicant's testimony is not credible and that he exaggerated his work duties to his doctors. On this point, the respondent emphasizes that the applicant drove truck for the employer in addition to working as a laborer. It suggests that the applicant only did the strenuous work he described to Dr. Lerner 26.7% of the time, not 50% of the time as he told the doctor. The employer also notes Mr. DeMarb's testimony that the applicant did not work hard.
However, Mr. DeMarb also testified that the applicant did mostly labor work and that truck driving was less than one-half his duties. He testified that the work the applicant did was strenuous on the back and involved bending, heavy lifting, and twisting. The applicant was 53 years old with a 27-year employment history in January 2006. Further, given the prior work injuries documented by the employer with respect to its date of injury argument, it is reasonable to believe that the applicant's years of work exposure through January 2006 were at least a material contributory causative factor in the onset or progression of his disabling back condition. On this point, the commission notes the holding in Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 12d 655, 659-663 (Ct. App. 1982) that repeated back injuries may be compensable as occupational diseases.
In this case, Dr. Lerner's report cites both the applicant's series of traumatic back injuries and repetitive day-to-day activities as the cause of his occupational disease. He states
...the cumulative effects of these daily activities, in combination with multiple specific events of work injuries, which occurred over many years during his employment, constitute an occupational exposure.
Like the ALJ, the commission adopts the opinion of Dr. Lerner.
b. Date of injury.
The respondent also raises the question of the date of injury. As noted above, Wis. Stat. § 102.01(1)(g) provides that the date of injury in occupational disease cases is the earlier of the date of disability or the last day of work for the last employer whose employment caused disability. The respondent argues the date of disability in this case occurred before the applicant's last day of work, suggesting dates back to 1981, many of which would trigger the liability of the Work Injury Supplemental Benefits Fund under Wis. Stat. § 102.17(4).
In Virginia Surety Co., Inc., v. LIRC, 2002 WI App 277, 259 Wis. 2d 655, the court of appeals discussed the question of date of injury from occupational disease, stating:
15 ... [The injured worker's] disability, however, did not emerge in an instant, as industrial accidents generally do. See Kohler Company v. Department of Indus., Labor & Human Relations, 42 Wis. 2d 396, 400, 167 N.W.2d 431, 432 (1969) ("An industrial injury or accident is an event, fixed as to time and place.") Rather, it developed slowly. As Kohler Company observed:
"An occupational disease is a process, usually extending over a considerable span of time. It has a beginning, relevant on the issue of causation. It has a progression but this can vary in individual cases. There can be a steady deterioration, swift or slow but uninterrupted. There can be improvement and relapse. There can be recovery and re-occurrence. There can be recovery, period. On a claim for benefits for permanent disability, most important is the question, When did the occupational disease ripen into a disabling affliction?"
Ibid. Where disability results from such a progressive disease, like silicosis, where there is a continuum of impairment that slowly ripens into a barrier to further work, there is a "conclusive presumption" that the "date of disability" under the statute is "when the employee first suffers a wage loss due to" that condition. General Cas. Co., 165 Wis. 2d at 181, 477 N.W.2d at 325. This is because there cannot be a "date of disability" unless there is a "disability" and evidence of "disability" is the inability to work and resulting non-compensation. [Citations omitted.]
Virginia Surety, 258 Wis. 2d at 677-78.
The Virginia Surety court went on to state:
18 We agree that the Commission's distinction between nonincapacitating symptoms on the one hand and incapacity to work on the other is a reasonable interpretation and comports with the intent of the statute. Indeed, Montello Granite Co., upon which General Cas. Co. relied, noted that the supreme court had "consistently held" that under the worker's compensation act as it then existed, "'in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results.'" ... Here, as the Commission recognized, [the injured worker] had a ripening affliction that, ultimately, caused his physical incapacity to work. Until that time, however, although his disease may have been a "medical or pathological disability," it "resulted in no wage loss"... [Citations omitted; emphasis in original.]
Virginia Surety, 258 Wis. 2d at 680-81.
In this case, the applicant had lost work time due to back symptoms before January 26, 2006. However, the commission declines to conclude that the disability from the earlier work injuries were the result of the "occupational disease." In most instances, the earlier injuries were traumatic in origin. Clearly there was something qualitatively different about the applicant's back condition (1) during the period between the 1984 fusion and January 26, 2006, when he periodically missed a few days of work but always returned to full duty, and (2) the period after the January 26, 2006 injury, when the applicant was subject to permanent restrictions that prevent him from working. The commission notes further that in Shelby Mutual, the court did not find a date of injury with any of the repeated traumatic back injuries that ultimately contributed to the causation by occupational disease. In this case, it is reasonable to conclude that his condition was not yet an occupational disease until January 26, 2006, and Dr. Lerner certainly assigns his work duties in that month a causative role.
In Shelby, the injured worker had had several prior traumatic injures, for some of which he received workers compensation. The worker in Shebly Mut. then sneezed while at home on a vacation, after which a herniated disc was discovered. The commission set the date of disability at the last day of work--not any of the prior injuries dates. The court of appeals did not disturb that finding, but rather stated it clearly demonstrated causation by occupational disease. Shelby Mutual, 109 Wis. 2d at 663, note 3.(1)
Applying these rules, the ALJ found a January 31, 2006 date of disability, on the theory that that was the first day of wage loss attributable to the effects of the disease. He then used that day as the date of injury. However, as explained in the material inserted by amendment, the commission amended his decision to state a January 26, 2006 date of injury, because that was the last day of the employment that contributed to the disability.(2)
c. Extent of PPD.
The last issue is the extent of additional permanent partial disability. Dr. Lerner estimated an additional 5 percent over the fusion following the initial injury back in 1984. Another doctor, Dr. Sherrill, estimated permanent partial disability at 20 percent, 10 percent of which was preexisting. A third doctor, Dr. Manning, rated 4 percent for decreased work tolerance and the need for work restrictions.
The ALJ awarded permanent partial disability on a functional basis at 4 percent finding Dr. Manning's estimate most reasonable. On appeal, the respondent suggests that this rating, based as it is on Dr. Manning's report, did not take into account the pre-existing disability. However, while Dr. Manning did not specifically address the prior 10 percent from the 1984 surgery (and stated in his practitioner's report at exhibit D he was aware of none), it is clear that his rating was meant to reflect the decreased work tolerance and need for permanent restrictions which did not arise until after the January 2006 injury. Moreover, both Dr. Lerner and Dr. Sherrill specifically referred to the pre-existing disability and awarded additional disability in amounts greater than Dr. Manning.
cc:
Attorney Monika A. Hartl
Attorney Duane R. Harlow
Attorney Roland Cafaro
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]