THOMAS E MORAN, Applicant

GATEWAY CONCRETE FORMING SYS, Employer

ST PAUL FIRE & MARINE INS CO, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed

June 30, 2011
moranth.wsd:101: 6 ND6 3.4; 3.43

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant was born in 1948. In 1988, he began working through the carpenters' union in Madison. He did mostly concrete work, which included building forms from plywood. This job involved lifting and carrying sheets of plywood weighing up to 96 pounds. The applicant testified that he would lift the plywood sheets overhead and set them on top of his hardhat to carry them. Additionally, the applicant assembled the plywood forms and ripped them apart. He claims compensation for bilateral shoulder injuries caused by years of occupational exposure from his work as a carpenter.

The ALJ credited the expert medical opinion of the applicant's treating doctor, Jeffrey Stitgen, M.D. The ALJ found a compensable injury with a July 3, 2003 date of injury (the applicant's last day of work as a carpenter.)

The employer and its insurer (collectively, the respondent) appeal, making two arguments. First, the respondent asserts that its medical expert, Mark R. Aschliman, M.D., gave a more credible medical opinion on causation and that the ALJ did not give sufficient weight to the applicant's prior complaints of shoulder pain. Second, the respondent asserts that the ALJ should have used an earlier date of injury for occupational disease, that being August 1999 when the applicant first lost time to treat his shoulder injury.

The commission is persuaded, as Dr. Stitgen opined, that the applicant's disability was caused by his occupational exposure as a carpenter to July 3, 2003. The applicant's job duties, as he described them without contradiction, involved considerable overhead reaching and pulling to take the concrete forms apart. In particular, he described pulling the "pans" from the curing concrete, a task involves considerable overhead reaching and pulling.

Dr. Aschliman suggests, in part, that the applicant's tobacco use and alcohol consumption may have contributed to his shoulder condition. However, the supreme court has held that employment exposure need not be the sole cause or the main factor in the applicant's occupation disease. 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. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942). Given the record before it, the commission concludes that the applicant's years of work exposure were a material contributory causative factor in the progression of his disabling shoulder condition.

The next issue is the appropriate date of injury. By statute, the date of injury in occupational disease cases is:

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 the disability.

Wis. Stat. § 102.01(2)(g)2.

In general, the date of disability is the first day of lost work due to the disabling effects of the occupational disease; that is, lost work time resulting from an actual physical incapacity to work. See Virginia Surety Company, Inc. v. LIRC, 2002 WI App. 277, 17, 258 Wis. 2d 665, 680, 654 N.W.2d 306. However, as the ALJ stated in his decision, the courts have also recognized that there can be periods of disability from occupational exposure, followed by recovery, followed by additional work exposure causing additional disability and a new date of injury. The supreme court has stated:

Upon a full reconsideration of the entire matter, it is considered that it should be held that the `time of accident' within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. If the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, then it will be necessary for the commission to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by a subsequent exposure. If it finds that the disability is due to a new onset, the employer and the carrier on the risk at the time the total disability manifests itself shall be liable accordingly. If, however, there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employee is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account.

Zurich General Acc. & Liability Ins. Co. v. Industrial Commission, 203 Wis. 135, 146-147 (1930).

In discussing what constitutes "recovery," the commission has previously held:

The commission concludes that the meaning of the term "recovery" in occupational disease cases is intertwined with the factual circumstances to which it is applied. An individual may "recover" in an occupational disease process by reaching a healing plateau and returning to work after sustaining one of a series of traumatic injuries, or after sustaining a period of disability due to work exposure. In Zurich, the employee recovered after the latter. In such cases, until the occupational disease process has reached completion there is no occupational disease date of injury, and the acute injuries and recoveries merely represent contributory elements in the occupational disease process. Based on the particular facts and circumstances of the applicant's case, the commission finds that his acute injuries, disabilities, and periods of recovery prior to November 6, 1991, were contributory elements in his occupational back disease process. His occupational back disease process did not reach completion until November 6, 1991.

In other cases, an occupational disease process may reach completion and liability for compensation become fixed. However, subsequent work exposure may change the nature of the occupational disease or accelerate it. Such change or acceleration would constitute a new occupational disease, and one could call the period between the first and second occupational diseases a "recovery" period.

Bruendl v. Simplicity Mfg. Co. Inc., WC Claim no. 91070786 (LIRC, November 25, 1996).

In this case, the work restrictions that were set following the applicant's treatment in August 1999 were temporary. The applicant, moreover, continued to work as a carpenter for four more years and incurred additional disability with additional work exposure. Certainly Dr. Stitgen, who treated the applicant both in 1999 and 2003, opined that the applicant's disabling bilateral shoulder condition was caused by his work exposure as a carpenter generally, not his work exposure to 1999. Moreover, none of the medical experts have actually given an August 1999 date of disability. The commission is satisfied that this record establishes a recovery from any 1999 date of disability.

It may seem unfair to hold the insurer liable for all of the disability, but the courts have held:

While this may seem unfair, it all evens out: "The company that had insured the compensation liability at the time disability occurred is the one that must pay the compensation awarded. This rule will work no injustice to any individual carrier or employer because the law of averages will equalize burdens imposed by this act among the employers and the compensation insurers of this state." [Citation omitted.]

Virginia Surety, 2002 WI App 277, 20, 258 Wis. 2d 665.

cc: Attorney Douglas Phebus
Attorney John Griner

Appealed to circuit court

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