JEROLD V ERICKSON, Applicant

UNIMIN CORP, Employer

ACE AMERICAN INSURANCE CO, Insurer

Unimin Corporation and Ace 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 October 27, 2010. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained an occupational back injury on April 23, 2009, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is November 18, 1950, started working for the employer in 1969, and has performed heavy, repetitive lifting virtually the entire length of his employment. He submitted a claim for occupational back disease with the date of injury listed as April 23, 2009. On that date the applicant kicked
at a large nut/bolt fixture on the floor that was part of what fastened a steel structure to the floor. When he did this he experienced low back pain, but kept on working, and the record contains no indication that at any time subsequent to the incident he has missed any work due to incapacitating effects of a back condition.

The administrative law judge detailed the applicant's heavy work duties, and found that he had sustained an occupational back disease injury with the date of injury being April 23, 2009. The applicant continues to work for the employer, albeit at modified duties with a 30-pound lifting restriction assessed by Dr. Mark Aschliman, the physician who examined the applicant at the insurer's request. Dr. Aschliman found that there had been no work injury, while the applicant's treating physician, Dr. Daniel Icenogle, opined that the applicant had sustained an occupational back injury on April 23, 2009.

Respondents have correctly argued that the applicant's claim for an occupational back disease with a date of injury on April 23, 2009, cannot go forward, because as of the hearing date the applicant had not been shown to have missed any work due to incapacitating effects attributable to his claimed back condition. There can be no occupational disease injury until the worker actually misses work due to incapacitating effects medically attributable to such occupational disease. Virginia Surety, Co. v. LIRC, 2002 WI App. 277, 18, 258 Wis. 2d 665, 654 N.W.2d 306; General Casualty Co. and Sharon Plumbing & Heating v. LIRC and Steven Schrock, 165 Wis. 2d 174, 180, 477 N.W.2d 322 (Ct. App. 1991). In the applicant's case there was no indication that he missed work due to such incapacitating effects.

The applicant attempts to circumvent this deficiency in his claim by pointing to the fact that he missed work from March 14, 2009 until approximately April 14, 2009. This occurred after he was ripping up floor boards at his home on March 14, 2009, and experienced a sudden onset of back pain. He saw Dr. Ira Kastenberg for treatment beginning on March 31, 2009. Dr. Kastenberg and a subsequent treater, Dr. Natasha Frost, diagnosed "acute back pain" and "acute onset of low back pain," respectively. Neither of these physicians diagnosed an occupational back disease, and therefore no occupational disease date of injury could be found during this period of missed work. This is particularly true given that the missed work was precipitated by a nonindustrial incident and no permanent disability was assessed.

Accordingly, the application for an occupational back injury with the date of injury being April 23, 2009, must be dismissed. Dismissal of the claim renders moot the issues regarding nature and extent of disability and liability for medical expense.

NOW, THEREFORE, THIS

The Findings and Interlocutory Order of the administrative law judge are reversed. The application for an occupational back injury occurring on April 23, 2009, is dismissed.

Dated and mailed

June 28, 2010
erickje . wrr : 185 : 9

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Attorney Douglas J. Phebus
Attorney Tawny R. Brooks

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