JOSEPH E CLEMONS, Applicant
KIMBERLY-CLARK CORPORATION, Employer
KIMBERLY-CLARK CORPORATION, Insurer
The applicant filed an application for hearing alleging a lumbar spine injury from long-term heavy lifting with an aggravating event in August 2005 while changing an ultrasonic unit bonder. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on June 9, 2010 and September 7, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage at the statutory maximum. At issue was whether the applicant sustained a compensable injury by occupational disease or accidental injury, the nature and extent of disability for any such injury, and the respondent's liability for medical treatment expenses. As discussed below, another issue in this case involves the potential application of Wis. Stat. § 102.12.
The ALJ dismissed the application by order dated September 27, 2010. The applicant filed a timely petition for commission review.
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 makes the following:
1. Facts.
The applicant was born in 1960. He began working for the employer in 1986. He has worked in a number of different jobs for the employer. First, he packaged feminine care products, a job that involved repetitive lifting and bending. Next, he worked in the employer's manufacturing area where he "pulled broke" which involved removing excess paper and other product from production machines. This job required bending and getting in unusual positions to remove the excess product. The applicant testified that he did both of these jobs for about a year and a half each. Next, the applicant ran a diaper machine. This job, too, required frequent bending and sometimes pushing and pulling on heavy weights, including pulp rolls, to operate the machine.
In 1995, after serving an apprenticeship, the applicant became a shift mechanic, a job that required heavy lifting on occasion. Specifically, the applicant had to lift gear boxes, bearings, and different pieces of equipment weighing possibly up to 200 pounds. However, he only lifted extremely heavy objects about once a month. The shift mechanic job also required significant bending sometimes for as long as an hour while he worked on gear boxes and changing bearings. His job involved twisting and bending and, as one would expect, relatively frequent wrenching motions.
The applicant testified that he worked 12 hours a day, seven days a week. He would frequently have aches and pains by the end of the day from changing parts, bending, squatting, etc. He testified further, that in July of 2005, he hurt his back when changing a bonder on a diaper machine.
The bonder on a diaper machine is low to the floor. Changing a bonder involves loosening the bolts, holding the bonder onto the machine and then sliding it out. The applicant estimated that the part he was trying to move when he hurt his back weighed about 40 pounds. As he was kneeling, trying to get the bonder out of the machine, he felt a pain in his lower back. He testified his back "hurt like hell" and that he could not move too well, though he was able to complete the job he was doing. He then drove a cart back to the shop and put ice on his back.
The applicant also did not seek medical care on the day he injured his back because he did not think his condition was serious. Asked if he reported the injury to anyone that day the applicant responded that "I had talked to people about it." He specifically mentioned telling Dave Ebben, Steve Baumann and
Mark Verhagen. He added that neither Ebben nor Baumann gave him much of a response and that Verhagen talked about scheduling him for a different shift. The applicant told Verhagen he did not want to switch shifts because he felt his co-workers on the shift he worked would cover for him better.
The applicant also testified that Mr. Verhagen was a scheduler and Mr. Baumann was a coordinator. He added that he considered them to be his supervisors or bosses. He testified, too, that he thought they were appropriate people to tell if he had hurt his back at work. June 9, 2010 transcript, p. 24.
Mr. Baumann and Mr. Ebben testified to corroborate what the applicant had said. Baumann testified that he was a coordinator when the applicant was injured. He testified that he had "moved up the ladder" from millwright, to planner, to scheduler, to trainer, to coordinator, and then later to a level 7 team leader. He testified that as a coordinator-the position he held when the applicant was injured in 2005-he was
basically responsible to make sure work would get done in a timely and orderly fashion so, basically, I don't want to use the word boss, but I was basically his boss.
June 9, 2010 transcript, pp. 12-13.
Mr. Baumann recalled that at some point in 2005 he became aware that the applicant had hurt his back at work. Specifically, Mr. Baumann testified that he came for his shift, which would be when the applicant's shift ended, and he noticed the applicant looked like he was hurt. The applicant told Mr. Baumann that "I hurt my back" and Baumann testified that he assumed from the context that he had hurt his back at work. June 9, 2010 transcript, p. 15.
Mr. Baumann testified that he would attempt to accommodate the workers who had injuries or were ailing so that they could continue to work on light duty. He also testified that the employer had a safety program under which
We have awards if we go so many days safe. And in maintenance, we basically would say, I mean, for every little nick you get among the guys, we'd-you know, it's like, unless you have to go to a doctor, don't go to the nurse because you're going to wreck our safety program, 'cause we were very proud of our safety program.
June 9, 2010 transcript, p. 20.
In subsequent testimony, Mr. Baumann added that the culture in the workplace was that not every nick and cut was reported, and that work injuries were only reported if they required someone actually going to the doctor. Mr. Baumann added that as a coordinator he did not believe he actually had anything to do with the reporting of work injuries. June 9, 2010 transcript, p. 20. However, another worker, Michael Westenberger, testified that the coordinator-the job held by
Mr. Baumann-was in charge of the daily work. June 9, 2010 transcript, p. 43.
What is clear at this point, however, is that the applicant did not report a work injury to the employer's occupational health nurse. Indeed, in the summer of 2005, after he hurt his back, the applicant was asked by the employer's human resource worker, Lori Ney, if his back injury was work related. He told her specifically that it was not. September 7, 2010 transcript, page 82.
Moreover, the applicant completed a non-industrial disability claim, which he processed through a non-industrial insurer, in October 2005. See Exhibit 4. This indicated that the applicant had not applied for worker's compensation and did not associate his condition with any work injury. The disability form had to be completed by the employer and was signed by its occupational nurse. The applicant did not tell the employer's occupational nurse that he wanted his back injury to be treated as a worker's compensation injury until May 1, 2008, which is about two-and-a-half years after the July or August 2005 date of injury. September 7, 2010 transcript, page 76.
Meanwhile, the first time the applicant treated for his work injury was August 25, 2005. On that day, the applicant saw Norman J. Schroeder, M.D. Dr. Schroeder reported a chief complaint in the lower back with radiation to the right side. He gave this history:
The patient has had nearly two months of unremitting back pain. He describes it as an 8 out of 10 most of the time. Says he "just woke up with a sore back one morning." He describes it as a stabbing pain that is worse with movements. He is very stiff in the morning or with prolonged sitting. It hurts in his right buttock when he sits on it. It seems to have gotten progressively worse. He has no bowel or bladder problem. He has had no numbness or weakness and really has not had anything in the way of back pain. He works as a millwright and a pipefitter. Has not missed work and has not had any previous back problems.
The doctor's assessment was sciatica, right, and he wished to rule out a herniated disc. The doctor also mentioned work restrictions but the applicant "does not want to hear this. Feels he wants to continue to go to work and normal duties." Stating that the applicant was quite adamant that he continue his current duties, the doctor recommended physical therapy.
When the applicant returned to Dr. Schroeder on September 2, 2005, he complained of constant back pain at 10 of 10 in intensity. However, despite his continued pain, he had worked all week even though the pain progressed to the point he could not bend over to put on his shoes. On this occasion, the doctor noted the applicant had had previous injuries to his back and was sore for a day or two but has not had previous ongoing back pain. Again, the applicant told Dr. Schroeder he "cannot recall any specific inciting factor for this."
Assessing right L5 radiculopathy and a probable herniated disc, Dr. Schroeder recommended to the applicant that he remain off work entirely for a two-week period, to which the applicant agreed. The doctor made arrangements for him to be seen by John Joseph, M.D., for a possible steroid injection, and also by
Theresa Chang, M.D., a neurologist. The doctor also ordered an MRI.
The applicant apparently did not have the steroid injections at this time. He did have an MRI done on September 4, 2005, when he reported to a hospital emergency room because of increased back pain. Thereafter, he saw
Thomas Lyons, M.D., for an evaluation for right-sided sciatica, on September 6, 2005. Dr. Lyons took this history:
Apparently about one month ago without any obvious precipitating event he began to experience back pain that rapidly evolved into right-sided radicular leg pain. The pain became so severe he was taken to the emergency room at St. Elizabeth's this past Sunday where he was evaluated.
Dr. Lyons' plan was to continue conservative treatment until the applicant completed the therapy he was undergoing as a result of the emergency room visit.
The applicant then returned to Dr. Lyons on September 14, 2005, when the doctor noted, as he had in the prior visit, that the MRI scan showed a right L5-S1 disc herniation. The applicant told the doctor that while he had some resolution of his right-sided low back pain, he still had numbness and aching in the right leg in the S1 distribution and, stating that he would like get back to work as quickly as possible, he asked for a surgical evaluation. The doctor and the applicant discussed a right L5-S1 microsurgical discectomy, which was performed on an outpatient basis the next day.
After undergoing the L5-S1 microsurgical discectomy on September 15, the applicant returned to Dr. Lyons on September 28. During this visit, the doctor reported that the applicant was very unclear about his symptoms though he did report that his back pain was about 100 percent better and he continued to have pain down his right leg. The applicant again was rather resistant to physical therapy. The doctor kept him off work, and scheduled a follow-up visit in a month.
On October 26, 2005, the applicant returned to Dr. Lyons telling him that his right leg pain was gone though he still had numbness. The doctor told him it could take weeks or even months for the sensory portion of his nerve to heal and the numbness to stop.
Dr. Lyons kept the applicant off work and scheduled a follow-up visit for the following month. The applicant returned on November 23, 2005, still complaining of paresthesias in the S1 dermatone though there was some improvement in that he could toe walk. The doctor allowed him to return to work subject to a 50-pound lifting limit.
When the applicant saw Dr. Lyons again on December 21, he complained of intermittent shooting pain down his right leg. Dr. Lyons ordered another MRI. When the applicant saw Dr. Lyons again on January 9, 2006, the doctor told him the MRI showed a large recurrence of the herniated disc at L5-S1. Dr. Lyons and the applicant agreed to a repeat surgery.
Accordingly, the applicant underwent a revision L5-S1 microsurgical discectomy on January 13, 2006. After that surgery, the applicant was completely free of leg pain but still had some sensory symptoms. Dr. Lyons felt that he was doing reasonably well. On follow-up on February 22, 2006, the doctor noted the applicant was having no pain in his leg and that his paresthesias had resolved. The doctor allowed him to return to work without restrictions on March 6, 2006.
When the applicant returned in April of 2006, he still had some sensory symptoms in his right leg, but no true pain. The applicant stopped seeing Dr. Lyons on May 17, 2006, explaining to his nurse that he did not think that the doctor's continuing treatment was worth the $25 co-pay.
The applicant returned to Dr. Schroeder on July 3, 2006. At this point Dr. Schroeder noted a history of:
[The applicant] spontaneously developed back pain radiating down the right lower extremity in the summer of 2005 and after conservative treatment failed he went through a discectomy because there was a ruptured disc and he said that the intensity of his pain decreased but never went away. The numbness in the right lower extremity and pain also continued ...
The doctor noted the recurrent herniated disc on the follow-up MRI and the revision surgery. At the time of his visit with Dr. Schroeder, the applicant continued to have back pain worse on the right side going down into his buttocks and thigh, and that the applicant's right foot was numb and tingly. Stating his diagnostic impression that the applicant was status post two back surgeries for an L5-S1 radiculopathy, with continued symptoms of neuralgic pain in the S1 distribution, Dr. Lyons recommended an EMG and repeat MRI followed by a referral for epidural injections.
After the injections were attempted, the applicant saw another surgeon,
K.S. Paul, M.D., on July 18, 2006, who took a history of:
Joe is a 46-year-old gentleman who started getting back and right lower limb pain in August/September of last year.
The doctor noted that a recent MRI scan showed a persistent or recurrent large sequestrated L5-S1 disc compressing the lumbar spinal theca and the S1 nerve roots. Noting also that the recent epidural injection had provided some relief, Dr. Paul wanted to wait a week to see if there was any further improvement before deciding whether to give another injection or go to surgery.
After the second epidural injection, which the applicant said helped him, the applicant nonetheless was left with a lot of right leg pain. Dr. Paul thought that further surgery could improve his leg pain, but that the applicant still would have some back and leg pain given the formation of scar tissue and the failure of the first two surgeries. Dr. Paul also discussed the possibility of doing a fusion surgery.
The applicant eventually decided to proceed with the laminectomy and the excision of the disc which was done on September 28, 2006. Again, some improvement was noted post surgically, and on October 25, 2006 Dr. Paul released the applicant to return to work with a 10 to 15-pound lifting restriction. After further evaluation, including a physical therapy note indicating that the applicant could lift and carry 50 pounds, Dr. Paul released the applicant to his previous employment at 12 hours per day as of December 31, 2006.
The applicant returned to Dr. Schroeder in February 2007 still complaining of back pain which Dr. Schroeder assessed as persistent right S1 radiculopathy with probable underlying nerve root damage. Discussing the applicant's subjective complaints with the applicant, Dr. Schroeder noted:
He says he has a persistent numbness in the heel on the right side of his foot. He is unable to state that the pain is definitely aggravated by his work. He has been working 12-hour shifts sometimes 70 to 80 hours a week as a millwright at Kimberly Clark and tells me he generally enjoys his job but with recent reductions in force his job may be eliminated by the end of the year, at least he will be working until November of 2007.
During this visit, Dr. Schroeder suggested pain management treatment. The applicant apparently underwent pain management treatment into the summer of 2007, but after an increase of pain in July of 2007, the applicant was referred back to Dr. Paul.
After reevaluation, Dr. Paul did a fourth surgery, this time an L5 laminectomy with posterior lumbar innerbody fusion and excision of the current disc at L5-S1, on August 30, 2007. This fourth surgery, however, did not result in a resolution of the applicant's symptoms.
The applicant has had significant continuing treatment since. Again, on May 1, 2008, about two-and-a-half years after the July or August 2005 date of injury, the applicant told the employer's occupational nurse that he wanted his back injury-which he previously reported to the employer as non work-related-treated as a worker's compensation injury.
Regarding cause and extent of disability, the respondent relies on the report of Dr. Schroeder (Exhibit A), who states his opinion in a narrative dated September 22, 2008, that is attached to his practitioner's report. After outlining the applicant's care including his four surgeries, the doctor states that the applicant:
...has continued chronic and disabling back pain. He has been referred to multiple pain management specialists, most recently one of my colleagues, Nancy Homburg, M.D. I am also aware of a functional disability evaluation order by Dr. Paul, that shows [the applicant] is disabled due to continued back and radicular pain.
The exact causation of the herniated disc is somewhat unclear, but it is my medical opinion to a reasonable medical probability that his chronic back pain was aggravated and accelerated, and progressively deteriorated due to his ongoing work as a millwright at Kimberly-Clark. My understanding of the duties of a millwright is to frequently have to climb up and down on equipment, under equipment, bending, twisting, lifting, wrenching, all of which would aggravate and accelerate the deterioration of any preexisting back condition.
My medical records as well as my personal recollection support that Mr. Clemons was very reluctant to accept work restrictions, and was quite compulsive about wanting to return to work early to his duties at Kimberly-Clark to avoid time off work if at all possible.
The respondent also submits a report from Dr. Paul regarding the accidental event or work exposure to which the applicant attributed his condition. The doctor refers to signed statements from the applicant's co-workers who testified at the hearing. These statements, at Exhibit P et seq., generally refer to the accidental event working on a bonder machine. Regarding the applicant's disability and diagnosis, the doctor refers to his office notes which generally document the L5-S1 radiculopathy and herniated discs treated surgically by Dr. Paul.
Dr. Paul indicates on the form practitioner's report that the applicant's disability was the result of an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of his condition-an opinion somewhat at odds with his reference to the statements from the co-workers about an accidental event-and opined the applicant could not return to work given his functional capacity evaluation. Dr. Paul also rated a total of 64 percent permanent partial disability apparently on a functional basis. He opined the applicant's prognosis was poor, that he continued to have a lot of pain, and that conservative treatment would be necessary in the future. The functional capacity evaluation to which the doctor referred stated that the applicant could do light duty work.
The respondent relies on the expert medical opinion of Richard Karr, M.D., at Exhibit 2. Dr. Karr's diagnostic impression includes L5-S1 degenerative disc disease which the doctor described as a personal health condition predating 2005 to which chronic cigarette smoking was likely a causative factor. The doctor also noted what he described as an L5-S1 progressive right side disc herniation from July through September 2005 due solely to the normal progression of his degenerative disc disease. On this point, Dr. Karr noted the various medical reports indicating that the applicant simply woke up one morning with a sore back without any inciting or precipitating event. Dr. Karr's diagnostic impression includes the following:
Work exposure at Kimberly Clark Corp. did not cause a structural spinal injury, nor aggravate a personal health degenerative lumbar spine condition beyond normal progression; did not necessitate any of the multiple surgical treatments; has not resulted in PPD, temporary total disability, or permanent alteration in work capability. Mr. Clemons is not suffering from an occupational lumbar spine disease. [Emphasis in original.]
Dr. Karr stated the following in the discussion portion of his report:
[The applicant] has L5-S1 degenerative disc disease. This is a personal health degenerative condition that clearly predates 2005. It is orthopedic dogma that chronic cigarette smoking is an aggravating factor concerning degenerative spinal conditions. As such, this is likely a causative factor in Mr. Clemons' lumbar spine condition. (9/14/05 note: 20-year history, one half to one pack per day smoking habit)
Dr. Karr went on to note that the applicant had back symptoms in 1989; that when he first treated for his two-month history of lumbar spine symptoms on August 25, 2005, he told Dr. Schroeder he just woke up with a sore back; that there was no documentation of any workplace injury or workplace association; that the following medical notes did not indicate any obvious precipitating event in the onset of his back pain; that the earliest MRI showed isolated L5-S1 degenerative disc disease with a superimposed disc herniation; and that none of the medical records that underlie the applicant's four surgeries mention any specific work injury.
Dr. Karr also opined that there was no evidence of a workplace injury and that simply because the applicant periodically engaged in strenuous work for the employer does not mean he injured his spine. He attributed all of the applicant's disability to the preexisting degenerative condition. Dr. Karr did not believe that the applicant's work exposure for the employer caused a spinal injury or aggravated the applicant's condition beyond its normal progression. Dr. Karr did set work restrictions regardless of causation. Specifically, he allowed a maximum 30 to 40-pound lifting with maximum repetitive lifting and carrying of 15 to 20 pounds.
Both sides have submitted expert vocational opinions. The respondent's expert, Keith Moglowsky, opined that the applicant would be permanently and totally disabled under the work restrictions of Dr. Paul, but would have a 40 to 45 percent loss of earning capacity under the work restrictions set by Dr. Karr (assuming a compensable injury). He also opined that the applicant could be considered a viable candidate for an associate degree program which, after approximately 80 weeks, would give him career opportunities in higher paying, less physically demanding, work and result in a lower 15 to 20 percent loss of earning capacity.
The applicant's expert vocational report is from Karen Boehm (exhibit V). She noted that the applicant's functional capacity evaluation, which Dr. Paul relied on in stating he could not return to work, indicated the applicant could occasionally lift up to 20 pounds, could only sit for 10 minutes and stand for 6 minutes and would have to alternate between sitting, standing and walking every 6 to 10 minutes. Ms. Boehm opined that based on that, he could not return to his prior work. Because he did not possess transferrable skills to allow him to return to other jobs with a lighter nature, Ms. Boehm opined that he would be permanently and totally disabled on an odd lot basis. She apparently did not offer an opinion based on Dr. Karr's restrictions.
2. Discussion.
This case presents at the outset the issue of whether the claim should be denied under Wis. Stat. § 102.12. That statute very generally provides for denying claims which are based on an injury for which notice has not been given within 30 days if prejudice to the employer results. It also provides for dismissing "stale claims" that an employee does not begin by filing an application or seeking payment of compensation within two years of the date of injury.
Specifically, Wis. Stat. 102.12 states:
102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employee knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employee or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17 (4).
With regard to the 30-day notice requirement under section 102.12, Stats., the burden is on the respondent to show that it was misled by any lack of notice. Milwaukee v. Industrial Comm., 21 Wis. 129, 136, 124 N.W.2d 112 (1963); Michigan Quartz Silica Co. v. Industrial Comm., 214 Wis. 289, 294, 252 N.W. 682 (1934). Indeed, in Manitowoc County v. ILHR Dept., 88 Wis. 2d 430, 436, 276 N.W.2d 755 (1979), the court stated:
"Sec. 102.12, Stats. provides that absence of notice shall not bar recovery if it is found that the employer was not misled thereby. In the absence of notice, the employer has the burden of showing it has been prejudiced."
With regard to the two-year filing requirement, the Wisconsin Supreme Court stated in Trustees, Middle River Sanitarium v. Industrial Comm., 224 Wis. 536, 542, 272 N.W. 483, 485 (1937):
What an employe may think as to the nature of his disability and its relation to his employment is not alone sufficient to start the running of the two-year statute of limitations. To so hold would be to adopt an unthinkably harsh rule. What an employe thinks must be based on something more than suspicion and conjecture in order to start the running of the statute of limitations. Such thought must be based upon knowledge of, or upon reliable information regarding the nature of his disability and its relation to his employment. It is, of course, not necessary that the employe know the precise name employed by the medical profession to describe his disability, but he must have knowledge or an appreciation of the nature of his disability and its relation to his employment.
As the commission has previously observed in a somewhat similar context:
... the fact the applicant initially treated the condition as non-occupational is not dispositive. The applicant is neither a doctor nor a lawyer. She is a lay person who cannot be expected to understand the medical [relationship] between her occupational exposure and her back, or to be aware that such a condition is even compensable.
Susan Brown v. Sams Club, WC Claim No. 1998-012372 (LIRC, August 31, 1999). See also Neitzel v. Northcott Hospitality International, WC claim no. 2003-039230 (LIRC, July 31, 2007).
The ALJ properly noted that the applicant is bringing what are essentially two separate claims: (1) a claim of occupational disease based on his work exposure as a millwright for the employer generally, and (2) an accidental or traumatic injury while working on the bonder machine in July or August of 2005. However, the ALJ was obviously, and understandably, troubled that the applicant either lied to his doctors and the employer's human resource office when he first told them he had not sustained a work-related injury, or was lying to the ALJ when he told the ALJ he had suffered a work injury. The ALJ dismissed the applicant's claims under Wis. Stat. § 102.12.
However, the commission does not believe dismissal is warranted under the 30-day notice requirement in Wis. Stat. § 102.12. As provided in the supreme court cases cited above, the employer has the burden of proving that it was actually prejudiced by the delay in notice in order to take advantage of that provision. The applicant may well have intended to mislead the employer. However, the record does not establish prejudice to the employer due to the lack of notice within 30 days.
The next issue is whether or not to dismiss the claims under the two-year provision in Wis. Stat. 102.12. Prejudice to the employer is not a factor under the two-year provision, but in order to dismiss under the two-year provision, it must be shown that the employee knew or ought to have known of the relationship of his disability to the employment and that the employer did not know or should not have known that the employee sustained the injury on which the claim was based.
The commission concludes that the applicant's claim of a July or August 2005 accidental back injury while removing a bonder should be dismissed under this provision. The applicant has established that his co-workers, at least, were aware that he had suffered the bonder accident, and one of those co-workers, Mr. Baumann, may have had something approaching supervisory duties. Nonetheless, the commission cannot conclude that "the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based."
First, Mr. Baumann denied that he had authority for reporting injuries. None of the other workers had supervisory duties. Beyond that, whatever the applicant may have told Mr. Baumann was superseded by the fact the applicant told Ms. Ney, the employer's human resource worker, that his back injury was not work related shortly after it happened in the summer of 2005. September 7, 2010 transcript, page 82. None of the early doctors' notes mention a work-related injury. Further, the applicant originally filed a claim for non-industrial disability compensation with the employer's occupational nurse. Once the applicant claimed a non-industrial basis for his injury, it can no longer be said that the employer knew or should have known about the bonder machine injury regardless of what Mr. Bauman might have been told. Thereafter, the applicant did not tell the employer that his injury occurred at work until May 1, 2008, well beyond the two-year period.
The occupational back injury claim, the claim that the applicant's back injury was caused by an appreciable period of work place exposure rather than an accidental event, is a different matter. The commission cannot conclude that the applicant should have known that he had an occupational disease based on his work exposure based simply on his familiarity with his job duties. Again, the commission has previously declined to charge a lay worker with knowledge of an occupational disease, which is generally a medical-legal question. See Susan Brown.(1)
The next question, then, is whether the applicant's disabling back condition was, in fact, caused by occupational exposure or occupational disease. 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. In that case, the court of appeals also noted that:
... In Shelby Mutual ... we also recognized that a compensable occupational disease injury may occur in the absence of identifiable traumatic events. In particular, we observed that a compensable occupational disease injury may be "'acquired as the result ... of working in an industry over an extended period of time.'" Id. at 661 (quoting Rathjen v. Industrial Comm'n, 233 Wis. 452, 460, 289 N.W. 618 (1940)).... Thus, in Shelby Mutual we recognized what is simple common sense: repetitive work activities may cause a compensable occupational disease injury even though the disease causing the injury is not caused by identifiable traumatic events.
Wisconsin Insurance Security Fund v. LIRC, 288 Wis. 2d 206, 12.
Further, an injured worker's employment exposure need not be the sole cause or the main factor in his or her disability for the exposure to be compensable. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Ibid; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).
In this case, the applicant's duties were relatively strenuous, but he testified he only did extremely heavy work perhaps once a month. There may have been crawling, bending and reaching involved, but Dr. Karr credibly opined that the work the applicant did was not sufficiently strenuous to cause the applicant's degenerative back disease over time. He may have injured his back in a traumatic accident while working with the bonder machine in July or August 2005, but that claim is barred and in any event does not establish causation by occupational disease. As Dr. Karr pointed out, the applicant was a cigarette smoker and cigarette smoking does contribute to degenerative back disease. Further, other than the bonding machine accident, there is little significant history of repetitive back injury while working for the employer of the type described in Shelby Mutual. See particularly, Dr. Schroeder's August 25, 2005 treatment note.
After considering the medical record in this case, the commission concludes the applicant has not established that he sustained an injury arising out of his employment, while performing services growing out of and incidental to that employment, due to an appreciable or extended period of work place exposure that was a material contributory factor in the onset or progression of his disabling condition.
The application for hearing, as it pertains to both the accidental and occupational claims for injury, must be dismissed.
NOW, therefore, the Labor and Industry Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
The application is dismissed.
Dated and mailed
May 24, 2011
clemmon.wrr:101:5 ND6 3.4; 3.43; 9.2; 9.52
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Scott D. Metz
Attorney Jan Schroeder
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