MICHAEL A. TASSONE, Applicant
BLUEGREEN CORPORATION, Employer
AMERICAN HOME ASSURANCE COMPANY, Insurer
In March 2008, the applicant filed an application for hearing seeking compensation for occupationally-induced asthma from an accidental exposure to chlorine dust on May 30, 2007. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on February 1 and October 1, 2009. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, that the applicant was accidentally exposed to chlorine dust on May 30, 2007, and an average weekly wage of $518.40. At issue was the nature and extent of disability, if any, from the exposure, the respondent's liability for medical expenses, and whether the payment of medical expenses should be ordered prospectively.
The ALJ issued her decision on November 9, 2009. Both parties petitioned for commission review.
The commission has considered the petitions and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
a. Work exposure and treatment.
The applicant began working for the employer, a resort, in early 2005. He was responsible for taking care of the resort's swimming pools and hot tubs. His job included work in the "control room," putting chlorine tablets into an "erosion feeder" in the resort's swimming pool and hot tub systems. On May 30, 2007, an accident occurred in which some uncoated chlorine tablets broke apart as he was dumping them into the erosion feeder. As a result, the applicant was covered in chlorine dust, which he inhaled.
The applicant ran from the control room coughing and trying to throw up. He then returned to the control room to put a cover on the erosion feeder, because otherwise too much chlorine might have been added to the system causing injuries to guests using the pool or hot tub. He was also concerned the chlorine might have mixed with fumes from an acid tank to form a toxic mixture. It took about a minute to close the erosion feeder cover, and he left the room again.
When the applicant left the control room the second time, he was breathing very heavily, almost hyperventilating, and could not catch his breath. He drove a truck from the control room to the resort maintenance area, reported the injury, and was taken to the hospital.
The emergency room notes are at exhibits B and C. A report from one of the emergency room doctors, Gregory D. Anderson, M.D., gives this history:
Patient is a 64-year old male who while preparing chemicals to use in a pool had dry chlorine dust blow back into his face and into the air. He states he inhaled a large dose and subsequently returned to the enclosed area to try and clean up the spill. He then had increasing shortness of breath and wheezing and was brought to the emergency room for further evaluation and treatment. He denies any eye irritation or pharynx swelling. He denies any stridor. He has had no nasal discomfort. He denies any chest pain, nausea, or vomiting.
The assessment of the emergency room personnel was chlorine inhalation with bronchospasm. A risk for noncardiogenic pulmonary edema was noted. The applicant was admitted for close monitoring of his respiratory status.
A note that same day from the admitting doctor, Karl Hoffman, M.D., gives a similar history of the accident, but adds that the applicant was "quite tight and wheezing, but started to open up with a second consecutive albuterol nebulizer." Dr. Hoffman noted the applicant had quit smoking 15 years earlier after a pack a day habit for 25 years. The doctor noted, too, a prior history of asthma, but that the applicant "really has not had to use an inhaler much in recent years."
(Dr. Hoffman later reported that the reference to "a prior history of asthma" and "not [having] had to use an inhaler much in several years" was a discrepancy and that the applicant in fact was not asthmatic prior to the exposure to chlorine on May 30, 2007. Exhibit M.)
On discharge from the hospital, Dr. Hoffman's final diagnosis was chlorine gas exposure, improving. Dr. Hoffman reported the applicant felt well on May 31, and that while his lungs were still a little sore, there was no respiratory distress. The doctor did note a trace of an expiratory wheeze in the right apex. The doctor felt his long-term prognosis was good, but wanted to see him again in two weeks after getting a baseline spirometry. He allowed the applicant to return to work, but recommended continued use of Albuterol.
The applicant returned to Dr. Hoffman on July 20, 2007. Noting the applicant's recent hospitalization, the doctor stated:
He is doing reasonably well but actually was better when he was in the hospital because with the nebulizers his peak flow was up to 45 and now he can't crack 300 and it is more at 280. He did have spirometry done and I don't have the results in front of me but I have seen them and he is 50th to 60th percentile on his FEF 25/75 and other similar markers.
The doctor noted that "with forced expiration, he definitely wheezes." His assessment was:
I suspect Michael has a combination of some irritation from chlorine gas but also he was a smoker for some years and is probably lucky he quit when he did which he estimates at 17 years ago at a 1 PPD for 20-25 years.
The doctor noted the applicant used his inhaler, but also that if there was not substantial improvement in the next few weeks, he would refer him to a pulmonologist.
Indeed, on July 31, 2007, Dr. Hoffman did in fact refer the applicant to James Sehloff, M.D., by letter which reported that the applicant felt well until he inhaled chlorine on May 30, 2007, as part of his job. (Exhibit B.) Since then, the doctor added, jobs that he could easily perform previously now taxed him, and he had a marked decrease in endurance. The doctor noted a remote history of tobacco abuse. Dr. Hoffman added:
...normal breathing his lungs are clear, but with forced expiration he has diffuse wheezes. He recently had spirometry performed, and on preliminary interpretation it appears to show obstructive lung disease with a significant reversible component.
My impression at this time is that he has lung disease. He did smoke but really was asymptomatic until abrupt onset of symptoms which have persisted now ever since his chlorine exposure.
Dr. Sehloff's initial treatment dated September 20, 2007, described the work injury, and noted that the applicant currently has dyspnea with climbing stairs or labor activities that he previously did without limitation. The doctor added that he had a pulmonary function test which showed a moderate obstructive defect with an FVC at 80 percent of predicted and an FEV1 at 68 percent of predicted.
Dr. Sehloff did his own pulmonary function test which showed a moderate obstructive ventilatory defect. His testing showed a FEV1 that was 71 percent of predicted, and an FVD which was 91 percent of predicted, both of which improved after bronchodilator. His impression was:
Patient with occupational exposure to chlorine which caused acute exacerbation of bronchitis and asthma. This appears to be a persistent problem with new symptoms that are historically related to this occupational exposure. With his prior tobacco use there was some concern of emphysema and he does have hyperinflation, however, his diffusion capacity is normal which makes that less likely. I think the majority of his symptoms are related to the asthmatic bronchitis related to his occupational exposures. If he does have emphysema it would be preexisting....however, I am not convinced there is significant emphysema causing symptoms. His condition is likely to be somewhat chronic but there is hope that if he uses Advair on a regular basis his wheezing and shortness of breath will improve and then stabilize.
The doctor wanted to see him back in two months time.
On November 15, 2007, Dr. Sehloff doctor reported that the applicant's breathing overall had been fairly stable, and that the applicant could pace himself as far as climbing steps. Cold air and a wood-burning fireplace bothered him. The doctor reported breath sounds diminished with some prolongation of expiratory phase as well as a few expiratory wheezes on the right. His impression again, was occupationally-induced asthmatic bronchitis, currently stable. He added that the applicant should return for follow-up in six months, earlier if he developed an acute exacerbation. He added that the medication including Advair and Spiriva would be a chronic therapy for the disease.
The applicant testified he had no breathing problems before the May 30, 2007 incident in which he was exposed to chlorine dust, but that since the incident, his breathing has never returned to normal. He also testified he had given up smoking years before the incident occurred, but his supervisor who testified on behalf of the employer said he observed him smoking, while the applicant introduced testimony from two friends who stated they never saw him smoke.
b. Expert medical opinion.
In a practitioner's report dated November 21, 2008 (exhibit E), treating doctor Sehloff opined that the applicant's exposure to chlorine dust directly caused the applicant's disability. For a diagnosis, he refers to his medical notes, which, as set out above, state a diagnosis of occupationally-induced asthmatic bronchitis. Dr. Sehloff added that the applicant could work subject to permanent restrictions as of September 20, 2007, and he set out the restrictions in an attached form. Essentially, Dr. Sehloff allowed the applicant to lift 50 pounds occasionally, and ten pounds frequently, and ordered him to avoid concentrated exposure to extreme heat, wetness and humidity, and avoid all exposure to fumes, odors, dusts, gases, and poor ventilation.
Dr. Sehloff further estimated permanent partial disability on a functional basis at 20 percent based upon a reduction in spirometry. The doctor cited as a disabling factor the applicant's dyspnea on exertion, and sensitivity to cold, dust, fumes and smoke that might lead to shortness of breath, wheezing and coughing. Dr. Sehloff also described the applicant's condition as chronic, requiring ongoing therapy including medication and clinic visits.
The employer retained Alfred M. Habel, M.D., who examined the applicant on June 7, 2008. Dr. Habel's opinion is that the chlorine exposure caused temporary disability from which the applicant recovered with no permanent disability within 6 weeks. He gives the following impression:
Mr. Tassone is a 65-year old male who had a history of smoking for many years, although he did quit several years ago. He had a chest x-ray in 2005 which did show hyperinflated lung fields, suggesting underlying chronic obstructive pulmonary disease (COPD). He states that he was not limited by his symptoms until he experienced a chlorine exposure while at work on May 30, 2007. Since then, he describes a significant decline, now having more problems with dyspnea especially with activities such as climbing stairs or pushing boxes at work. Cold weather has also been a trigger for his problems.
Mr. Tassone had had abnormal pulmonary function tests, which were obtained after his exposure to chlorine on May 30, 2007. No prior existing pulmonary function testing is available. He reports that he never had a pulmonary function test prior to this incident. His current testing does show a mild decline in the FEV1 and changes are consistent with mild COPD. There is also a significant reversibility component, suggesting a coexisting asthmatic process.
Mr. Tassone did sustain significant exposure to chlorine while at work. There was a large cloud of chlorine dust which immediately triggered symptoms of wheezing, chest tightness, throat irritation, and dyspnea. He was promptly evaluated in the emergency room and observed overnight. While there, his chest x-ray was clear, his saturations were normal, and he improved significantly in a short time with bronchodilator therapy given via nebulizer treatments. On the date of discharge, his lungs sounds were described as essentially being clear with only a minimal wheeze heard at the right apex.
In my opinion, it is unlikely that Mr. Tassone sustained any permanent disability from exposure to chlorine. His symptoms initially were quite concerning, but he did return to the room in the basement after his initial exposure and then shut off the valves, as he was concerned that the pool would become too high in its chlorine content. It seems unlikely one would return to the same area if the exposure was that severe. Unfortunately, his symptoms have worsened since this exposure. His history is typical for a patient with COPD. They frequently describe dyspnea when bending over to tie shoes and do notice symptoms worsening with certain exposures such as cold air, which also does fit with an asthmatic process as mentioned. His symptoms of dyspnea, when pulling the 20 pound boxes or when climbing stairs, are also consistent with COPD. However, it unlikely that his chlorine exposure caused these permanent symptoms, given the fact that he improved very quickly in the emergency room with bronchodilator therapy. He had relatively clear lungs, and saturations were normal and chest x-rays showed no acute abnormalities.
In summary, Mr. Tassone has chronic obstructive pulmonary disease (COPD) with an asthmatic component due in part to many years of tobacco abuse. He had an abnormal chest x-ray with hyperinflated lung fields prior to his exposure to chlorine. The chlorine caused a temporary aggravation of a chronic condition. Typically a patient will experience symptoms for approximately six weeks before they return to return to baseline. Mr. Tassone reports that his symptoms have not returned to baseline, but these symptoms are more likely due to his underlying COPD from his tobacco use rather than the chlorine exposure.
Treating doctor Sehloff responded to Dr. Habel's opinion in a report dated January 23, 2009 (exhibit H). He stated that he disagreed with Dr. Habel's opinion that the applicant's exposure produced only a temporary aggravation of the applicant's symptoms. He added:
Based on history, PFT's[(1)] and subsequent course[, i]t is my opinion that Mr. Tassone has occupationally induced asthma of the RADs variety. One cannot make the diagnosis of COPD based on a CXR[(2)]. Note that other x-rays did not mention COPD.
Regarding the applicant's symptoms of, and disability from, shortness of breath, and the allegedly nonwork related COPD from smoking, Dr. Sehloff stated:
He had no symptoms prior to the exposure and has had persistent symptoms since the exposure. The symptoms described could be attributed to asthma or COPD.
...
He had no symptoms prior to the exposure. Would not expect COPD to develop 25 years after smoking cessation without some precipitating event. Chlorine exposure is known to produce persistent bronchial problems.
Dr. Sehloff essentially reiterated his opinions in a follow-up letter after reviewing more records on July 3, 2009.
Dr. Habel then responded to Dr. Sehloff's response. See exhibit 11. He stated he disagreed with the statement that one would not expect chronic obstructive pulmonary disease to develop 25 years after smoking cessation. In fact, he said, exactly the opposite was documented in the literature. He states that "[e]ven after smoking cessation, people develop significantly more symptomatology that is usually multifactorial in nature and etiology. I do suspect a strong component of deconditioning component to Mr. Tassone's symptoms also, which is typical in patients with similar problems.
Dr. Habel adds this diagnosis
Mr. Tassone had developed progressive dyspnea from chronic obstructive pulmonary disease after many years of smoking. His symptoms appear disproportionate to objective findings. The chlorine exposure likely caused a temporary aggravation, but unlikely contributed to significant permanent disability. Patients do frequently develop worsening respiratory symptoms even after smoking cessation. There is also the concern of discrepancies in his smoking history and extent of his symptomatology.
c. Vocational issues.
The record includes evidence regarding the applicant's loss of earning capacity. The applicant was born in 1943. He left high school, where he earned a "C" average, in the tenth grade. His reading skills are poor, and he has no computer skills. He has worked for a number of different employers during his working career, most often in a factory, supervising, working with machines, or maintaining them.
Following his injury, the applicant was able to return to the employer. His boss testified he would have remained employed there, had he not been discharged for performance reasons. The circumstances of his discharge were not fully developed at the hearing. Transcript, pages 61 et seq. Since his discharge, the applicant, after numerous rejections outlined in the report of his vocational expert, has found full-time employment as a security officer at the Ho Chunk Casino. This is a full-time job, and he earns $11.00 per hour. He expected a ten percent raise shortly after the hearing on his one year employment anniversary. He worked first shift, days.
The applicant's vocational expert is Janice Hindson. She rated loss of earning capacity at 35 to 40 percent based on his restrictions. The restriction against fumes, and exposure to extremes in heat, humidity and cold ruled out much of his prior employment. She thought he could work as a food preparer, as a motel clerk, service station attendant, and retail worker, all jobs readily available where he lived. Ms. Hindson rated loss of earning capacity at 35 to 40 percent.
The respondent's expert is Nancy McCaskey, who initially rated loss of earning capacity at 31 to 35 percent based on Dr. Sehloff's restrictions. In this report, she stated he was working repairing slot machines at Ho Chunk making $9.00 per hour, but hoped to get a security job. Exhibit 2, page 5. This is based on the assumption his post injury earning capacity was $8.50 to $9.00 per hour in comparison to his time of injury wage of $12.98. Exhibit 2.
Ms. McCaskey revisited the issue of loss of earning capacity in a subsequent report which considered the applicant's testimony that he was working full-time at Ho Chunk as a security guard. She noted that when she first interviewed him, the applicant told her he was making $9.00 per hour, but at the time of the hearing, was making $10.00 per hour, and expected to make $11.00 per hour soon. She revised her rating of loss of earning capacity to 15 to 17 percent.
2. Discussion.
Regarding the cause, nature and extent of the applicant's disability on a medical basis, the commission, like the presiding ALJ, find more credible the opinion of treating doctor Sehloff. The commission credits the applicant's testimony that he did not have respiratory problems before the work exposure occurred, but did after. His friends and coworker who testified on this behalf testified he did not use an inhaler or complain about such problems before the chlorine exposure. The sole indication of prior respiratory problems seems to be a mistake in Dr. Hoffman's notes.
The employer's expert, Dr. Habel, admits the chlorine exposure did occur and that it did have disabling consequences. He also admits the applicant's presentation has a component of asthma. Although Dr. Habel attempted to downplay the applicant's exposure by noting that he returned to the control room on May 20, 2007 to cover the erosion feeder, his exposure was significant and he was admitted to the hospital after reporting to the emergency room. Further, the applicant's symptoms started with and continued after the chlorine exposure. On this record, the possibility that applicant may have coincidentally developed COPD after the chlorine exposure does not create a legitimate doubt in the minds of the commission, regardless of his smoking history.
The commission therefore finds that that the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. Specifically, the applicant inhaled chlorine dust on May 30, 2007 which directly caused the applicant to sustain disability from occupationally-induced asthmatic bronchitis. As a result, he has sustained permanent partial disability on a functional basis at 20 percent, as estimated by Dr. Sehloff.
Permanent partial disability for an injury such as the applicant's is not limited to the "functional" loss but must consider the loss of earning capacity as well. Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d 522, 527-28 (1979). In this case, the ALJ found the applicant's loss of earning capacity was less than his permanent disability on a functional basis. Both parties challenge the ALJ's findings regarding loss of earning capacity on review.
The applicant asserts the ALJ's award is too low, arguing that the opinion of Ms. McCaskey was "excessively mechanical" in that it is based on actual wage loss rather than lost earning capacity. For its part, the respondent observes that it had returned the applicant to employment at more than 85 percent of his pre-injury wage, prior to discharging him for acts it contends were misconduct. It asserts a discharge for misconduct under these circumstances may affect an award for loss of earning capacity, and argues the ALJ refused to let it develop a record on the issue of misconduct in this case. See: October 2009 transcript, page 58 et seq. The respondent asks the commission to either deny compensation for loss of earning capacity entirely based on the facts surrounding the applicant's discharge or, alternatively "to remand the case back to the Department for an additional hearing to develop the record regarding the facts and circumstances surrounding the applicant's dismissal."
The commission begins by noting that the compensation at issue is permanent partial disability for loss of earning capacity, not temporary disability. Consequently, the Brakebush decision--which holds that temporary total disability cannot be denied based on misconduct discharge (subject to recent statutory changes)--is not implicated directly.(3) As the respondent contends, the commission has held that when a worker engages in conduct tantamount to a refusal to do work within his restrictions, the commission may take that into account in deciding whether or how much loss of earning capacity to award. Kowalchuk v. Sunny Slope Grading, Inc., WC Claim No. 93053333 (LIRC July 29, 1998). A detailed discussion of the some of the commission's prior decisions on this point is set out in Terry Ann Mallette v. Hartford Finishing, Inc., WC Claim No. 93036016 (LIRC, July 31, 1995), affirmed case no. 95 CV 402 (Wis. Cir. Ct. Dodge County, March 22, 1996) and Mark Wellsandt v. Chippewa County, WC claim 93050745 (LIRC, November 28, 1997).
Stated simply:
The commission has in the past recognized an exception to reopening a loss of earning capacity award when an employer terminates a worker due to conduct that is the analytic equivalent of refusing work under Wis. Stat. § 102.44(6)(g) or due to misconduct that justifies the commission in not exercising its discretion to "reopen" a loss of earning capacity award under Wis. Stat. § 102.44(6)(b).
Sager v. Kohler Corporation, WC claim no. 1998-003847 (LIRC, April 22, 2005). However, merely because an employer believes an employee has engaged in misconduct does not compel the commission to make that finding and deny, or even reduce, loss of earning capacity.
Sager, supra.
In this case, the commission believes the parties should be afforded a chance to present further testimony concerning the applicant's separation from employment with the employer, before it decides the applicant's claim for loss of earning capacity. Based on its authority to direct the taking of additional evidence in cases before it on review under Wis. Stat. § 102.18(3), the commission remands this matter to the department for further hearing on this limited issue. Thereafter, the record shall be returned to the commission for its review and decision on this issue.
Based on the functional rating given by Dr. Sehloff, the applicant is currently entitled, at a minimum, to 200 weeks of permanent partial disability which, at the weekly rate of $262 (the statutory maximum for injuries in 2007), totals $52,400. As of July 14, 2010, 164.667 weeks totaling $42,618.67 have accrued; 37.333 weeks totaling $9,781.33 remain unaccrued.
The applicant agreed to the direct payment of an attorney fee set at 20 percent of the amount awarded under Wis. Stat. § 102.26. The future value of the fee is $10,480, subject to an interest credit of $35.60 for advance payment of the portion based on the unaccrued award, leaving a present value fee of $10,444.40 which shall be paid to the applicant's attorney within 30 days.
The amount due the applicant within 30 days is $34,094.93, based on the accrued portion of the award ($42,618.67) less the fee thereon ($8,523.73). The total amount remaining to be paid the applicant, in monthly installments of $1,135.33 as it accrues, is $7,825.07, which is the unaccrued portion of the award ($9,781.33) less fees ($1,956.27).
The ALJ's award of previously-incurred medical treatment expense is not disputed on appeal to the commission, and shall be awarded as set out in her order.
The respondent does dispute the ALJ's finding that the applicant will continue to need inhalant medications to treat his work injury, and that the respondent is liable for the payment of ongoing expenses. The respondent contends that while "medical expense" was an issue for hearing, prospective medical expense was not. The respondent argues further that the record does not support a prospective award. As set out above, however, Dr. Selhoff, whose opinion the commission credits, described the applicant's condition as chronic, requiring ongoing therapy including medication and clinic visits. In his treatment note, Dr. Sehloff specifically mentioned ongoing Advair use.
The commission, however, is not persuaded that a prospective award under Wis. Stat. § 102.18(1)(b) is necessary in this case, at least in the absence of a specific, identifiable future expense. Still, employers and their insurers are obligated to pay reasonable and necessary medical treatment expenses incurred to treat work injuries after an end of healing, even in the absence of specific order or award. See Wis. Stat. § 102.42(1) and Wis. Admin. Code § DWD 80.70(2).
This order shall be left interlocutory to permit the resolution of the loss of earning capacity claim, as discussed above. Based on Dr. Sehloff's practitioner's report which describes the applicant's condition as chronic and requiring ongoing treatment, this order shall also be left interlocutory to permit orders and awards regarding claims for additional disability and medical expenses that may arise in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Thirty-four thousand ninety-four dollars and three cents ($34,094.03) in disability compensation.
2. To the applicant's attorney, Ten thousand four hundred forty-four dollars and forty cents ($10,444.40) in fees.
3. To Innoviant, Sixty-five dollars and ninety-seven cents ($65.97) in reimbursement of medical treatment expense.
4. To Reedsburg Area Medical Center, Two hundred ninety-four dollars and eighty-one cents ($294.81) in medical treatment expense
5. To Dean Clinic, Nine hundred two dollars and no cents ($902.00) in medical treatment expense.
6. To Cigna, Nine hundred fifty-five dollars and seventy-five cents ($955.75) in reimbursement of medical treatment expense.
7. To the applicant, Seventy-five dollars and thirty-four cents ($75.34) in out-of-pocket medical expense.
Beginning on August 14, 2010, and continuing on the fourteenth of each month thereafter, the employer and its insurer shall pay the applicant One thousand one hundred thirty-five dollars and thirty-three cents ($1,135.33) per month until the additional amount of Seven thousand eight hundred twenty-five dollars and seven cents ($7,825.07) has been paid.
This matter is remanded to the Department of Workforce Development, Worker's Compensation Division, for further hearing limited to the issue of the applicant's separation of employment from the employer. Thereafter, the record shall be retransmitted to the commission for further review and decision.
Jurisdiction is retained for further orders and awards as are warranted and consistent with this decision.
Dated and mailed July 22, 2010
tassone . wrr : 101 : 1 ND6
6.21, 6.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
cc:
Attorney Raymond G. Clausen
Attorney Michael Frohman
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