RONALD D KOERNER, Applicant
HOOPER CORP, Employer
TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer
The applicant filed a hearing application seeking compensation for manganese poisoning due to prolonged exposure to welding materials with a date of injury based on a last day of work of September 26, 2002. The applicant seeks permanent total disability from the date of injury.
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 14, August 11, and October 18, 2010. The employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage as of the alleged date of injury of $880.80. At issue was whether the applicant sustained a work injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. If such an injury is established, ancillary issues include the applicant's claim for permanent disability (including a claim for permanent total disability from the date of injury and permanent partial disability at 20 percent on a functional basis) and the respondent's liability for medical treatment expenses.
On October 28, 2010, the ALJ issued his decision dismissing the hearing application in this matter. The applicant filed a timely petition for review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and
reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in October 1971. He graduated from high school in 1990.
After graduating from high school, the applicant worked for two years as a cable technician. In this job, he installed and maintained cable for a cable television company. He worked alone, hooking up service in new residences and restoring service to existing customers. He collected payments and issued receipts in this job.
From 1992 to 2000, the applicant began worked for Asplundh Tree Experts (Asplundh Tree). His job title was "journeyman line clearance," and he joined the International Brotherhood of Electrical Workers while working for Asplundh. He did no welding during this employment, but rather cleared trees and brush from around electrical power lines, cable television lines, etc. He was licensed to use hazardous chemicals to kill foliage while working for Asplundh Tree. April 2010 Transcript, p. 54-55.
During his employment with Asplundh Tree, the applicant sustained disability and received worker's compensation for a knee injury and a shoulder injury. He underwent surgery for the shoulder injury, and did not return to work for Asplundh Tree thereafter.
In September 2000, the applicant began working for the employer, an electrical construction company. His job involved locating wires, digging trenches to uncover and install underground wiring, installing pipe, CAD welding, and putting structures together. He worked for the employer for approximately two years.
The applicant, while working for the employer, was exposed to welding fumes containing manganese. However, the applicant did not ever personally do the welding that actually created manganese fumes. The welding that he did directly, exothermic welding or CAD welding, did not involve manganese.
Rather, the applicant's exposure to welding fumes containing manganese occurred when he held a tarp or umbrella upwind from a person employed by a contractor from Iowa (R.R. Metal Works) who was welding with a manganese compound outside on several days. The applicant also was exposed to manganese from welding fumes when he performed work that took him intermittently inside substation buildings where welding that liberated manganese was occurring.
Exhibit 15 is a document the respondent's attorney prepared to document the applicant's exposure to manganese while working for the employer. Although the parties did not stipulate to the exposure stated therein, the applicant's testimony, together with that of his supervisor, establishes that the statements made in Exhibit 15 are accurate. Specifically, Exhibit 15 sets out the applicant's exposure to manganese as follows:
Hooper Corp. hired the applicant September 11, 2000, and his last day of work was September 27, 2002. He performed no work between March 15, 2001, and April 9, 2011, and from March 10, 2002, to May 21, 2002.
The applicant was an "URD operator" and performed no welding of any kind, nor was he exposed to any welding fumes of any kind, from October 8, 2001, to March 10, 2002.
The applicant performed substation work from September 11, 2000, to March 15, 2001; from April 9, 2011, to October 8, 2001; and from May 21, 2002, to September 27, 2002.
At the first formal hearing, the applicant testified that he was exposed to manganese-containing welding fumes on jobs known as "Harbor, "Haymarket," and "Kansas." According to Hooper Corp. time records, Exhibit 10, the applicant worked on the Harbor and Haymarket jobs (job numbers 6892-01 and 6892-02) from May 20, 2001, to September 9, 2001; and from September 23, 2001, to October 7, 2001. The applicant was on the Kansas job (job number 7106) May 21, 2002, to August 25, 2002. The applicant alternated between the Kansas and Norwich (job number 7151) jobs from June 8, 2002, to August 25, 2002.
The welding contractor R.R. Metal Works of Nevada, Iowa, performed welding on jobs where the time records show the applicant also worked on the following dates: January 17 and 18, 2001 (job number 6784-Arcadian); August 16 and 17, 2001 (Harbor); August 20 through 23, 2001 (Harbor); June 24 through June 28, 2002 (Kansas on all dates, except June 27, 2002, when applicant was on Norwich job); July 8 through 12, 2002 (Kansas all week, except for four hours on Norwich job); and July 15 through 17, 2002 (Kansas).
In March 2002, the applicant saw Jennifer S. George, M.D., for complaints of back pain for the prior two or three years, which was worsening, as well as numbness and tingling in his legs bilaterally. After an MRI that was negative for disc problems, she referred the applicant for pain management with Nileshkumar Patel, M.D. Following the applicant's first visit on March 26, 2002, Dr. Patel's assessment was "neuropathic pain with hyper-reflex in the lower extremities ... in a gentleman who is using a 12-pack per day of alcohol." He performed a lumbar epidural steroid injection.
When the applicant returned to Dr. Patel in April 2002, he told the doctor he had good relief in the lumbar spine with the epidural steroid injection, but still had cervical pain. The doctor did a cervical injection, diagnosing polyarthralgia. In May 2002, the applicant's continuing complaints of multi-level arthralgias, and cervical and lumbar pain led Dr. Patel to wonder about Lyme disease, although he also performed diagnostic facet injections that month. Based on the result of the diagnostic injections, Dr. Patel performed radiofrequency ablation, which he reported in July 2002 yielded excellent results. In his note for August 6, 2002, the doctor noted that while the applicant's back pain was better, his hip and upper neck symptoms were not. The doctor added that he did believe the applicant was experiencing pain, though he did not know the etiology.
On September 27, 2002, the applicant saw Dr. George, who noted the applicant had been treating with Dr. Patel but felt no better and in fact felt worse. Specifically, he told the doctor that after the radial ablation of his nerves done by Dr. Patel, he felt worse. Medication did not help. Dr. George referred the applicant to Pamela Thomas-King, M.D., for a second opinion. Meanwhile, Dr. George took him off work as of September 27, 2002. The applicant has not worked since.
On October 7, 2002, shortly after the applicant stopped working for the employer, he saw Dr. Thomas-King with a chief complaint of "I have pain all over." The doctor reported this history:
The patient is a 30-year-old male seen for evaluation of multiple somatic complaints. The patient complains of neck, shoulder, bilateral upper extremity pain, lower back and bilateral lower extremity pain. The pain started approximately four years ago with progressive worsening. The patient reports no significant precipitating event. He describes the pain as aching and throbbing. The pain is associated with difficulty sleeping. He often wakes up unrefreshed. ...[P]revious therapies have included chiropractic therapy, heat therapy and physical therapy.
On examination Dr. Thomas-King noted the applicant had loss of appetite and change in bowel movement with frequent diarrhea, constipation and abdominal pain, joint pain, joint stiffness or swelling, weakness of muscles and joints, muscle pain and cramps, back pain and difficulty walking. She diagnosed multiple somatic complaints consistent with fibromyalgia.
In January 2003, the applicant returned to Dr. Thomas-King with complaints of "pain all over." She recommended conservative therapy. However, because the applicant had tested positive for marijuana, she could no longer prescribe Vicodin or other opioid medication. Dr. Thomas-King had no other treatment options, and she released the applicant to his primary care physician.
According to the applicant's vocational experts, Dr. George set work restrictions on January 27, 2003 stating that the applicant:
The applicant subsequently came under the care of Paul A. Nausieda, M.D., who recorded this history on October 13, 2005:
This is the first admission for this patient who is a 33-year-old Caucasian male from West Bend. The patient is admitted for the diagnosis of manganese intoxication. Basically, this patient's history of health problems begins in approximately 2001 when he developed burning pain and dysesthesias in the hands and legs. He was apparently evaluated and told that he had some kind of cervical degenerative arthritic problem. Some type of a rhizotomy was performed from the description of it though we do not have the original notes. He was worse after the treatment than before it according to his own history. In approximately 2003, he began complaining of progressive sleep disruption. There may have been some transient mood problems, and he was on antidepressants though he denies ever having been depressed. Shortly thereafter, he developed a tremor in the outstretched hands which interfered with his activity. He was placed on medical disability in 2003 carrying a number of diagnoses including fibromyalgia symptoms.
[]His history is basically one of working for the power company for 13-1/2 years as a lineman doing extensive underground welding for the last 3-1/2 years. He wore no respiratory protection during these activities. Prior to that he also had a brief period where he was spraying pesticides though he does not have any idea of what type of pesticides he was using. This was also done without respiratory protection. In the other period of time he was employed, he was in welding-related areas with welding fumes present in the work environment with intermittent problems with ventilation. He had never been tested for manganese poisoning; this, in fact, had never been raised as a possible diagnosis. He has no history of using illicit drugs. He does not drink or smoke.
Another note from Dr. Nausieda from this time states that the onset of insomnia occurred in 2001, and that the tremor started in early 2005. The doctor's diagnosis was: (1) manganese intoxication secondary to welding exposure; (2) neuropsychiatric complaints with minimal evidence of Parkinsonism; and (3) positive action tremor. At the hearing, the doctor explained that the applicant's tremor and complaint of fragmented sleep were suggestive of manganese intoxication. August 2010 transcript, pages 38, 51, 84-85.
Dr. Nausieda hospitalized the applicant for a procedure known as a chelation, in which the applicant was injected with a substance that draws the manganese from his system and causes him to excrete it in his urine. The applicant was hospitalized for this procedure twice, in October 2005 and February 2006. During these hospitalizations, the applicant's urine samples showed manganese at between 10 and 15 times the normal level.
The applicant currently experiences headaches, night sweats, problems sleeping, problems with light vision, some problems eating, and a tremor. He did not have these problems before beginning his employment with the employer. April 2010 transcript, pages 11, 40-42. See also exhibit G, reports of Nausieda (putting the onset of the tremor in 2003 or 2005 and the onset of insomnia in 2001).
Elevated levels of manganese can cause manganism, a condition that is described as Parkinsonism or a Parkinson's-like disease. As set out below, the respondent's medical expert, Marc J. Novom, M.D., acknowledges that elevated levels of manganese can cause manganism, though he disputes the applicant actually shows clinical signs of that condition or that he was actually disabled by that condition.
Dr. Nausieda has opined otherwise. Specifically, he has completed two practitioner's reports on form WKC-16-B (exhibits A and B), which diagnose manganism and state that the applicant's disabling condition is caused by an appreciable period of workplace exposure that was either the sole cause or a material contributory causative factor in the onset or progression of the disabling condition.
Dr. Nausieda opines that if a person works in a setting where welding occurs and has manganese toxicity, the manganese toxicity was caused by work if no other identifiable source of manganese is present. See August 2010 transcript, pages 36-37, 44-45, 55. He stated that sufficient exposure may occur, as it did here, with welding outdoors. August 2010 transcript, page 55. Thus, while Dr. Nausieda acknowledged some inaccuracies in his history--and that the applicant would not have been exposed to as much manganese as someone directly doing the welding himself--the doctor held to his opinion that the applicant suffers from manganism caused by his employment with the employer.
Dr. Nausieda testified, too, that there is no way to quantitatively measure how much exposure is necessary to develop manganese poisoning. August 2010 transcript, page 42. What is too much exposure to manganese varies from one individual to another (August 2010 transcript, page 40), and what is insufficient exposure to cause manganism in one person might be too much for another. August 2010 transcript, page 72.
Dr. Nausieda's testimony also suggests that manganese toxicity is related more to inhaling manganese than taking manganese orally in foods or vitamins. Manganese taken orally is detoxified quickly by the liver, whereas inhaled manganese is taken into the alveoli of the lungs and lymphatic system and more readily penetrates the brain. August 2010 transcript, page 18. In other words, if one consumes manganese in vitamins or foods that have manganese in them, it is efficiently excreted through the liver so that it is rare to see manganese toxicity caused by things that people eat. The doctor did allow that if one had impaired liver function, it might impair the ability to clear manganese from the body but he testified that these were "people in liver failure,"..."people at death's door from liver disease." August 2010 transcript, page 66.
Regarding the diagnosis of fibromyalgia, Dr. Nausieda testified that while that diagnosis is included in his reports, he was merely stating a diagnosis made by others and that he did not diagnose that condition himself. August 2010 transcript, pages 86 et seq. He added that he did not generally believe that disability in young people is the result of multiple diagnoses, but that young people tend to get one illness if they are going to be sick. August 2010 transcript, page 99. He added that many general practitioners miss early signs of Parkinson's (August 2010 transcript, page 105), and that fibromyalgia is a vague diagnostic entity that does not require specific laboratory abnormalities. August 2010 transcript, page 106.
Dr. Nausieda opined that the applicant had a mild case of manganism, and that his condition had stabilized. August 2010 transcript, page 88. In his practitioner's reports he indicates the applicant's manganism condition caused an antigravity tremor, Parkinsonism, and personality changes. He rated permanent partial disability at 20 percent, presumably to the body as a whole, and listed disabling elements of muscle cramp, tremor and coordination and balance problems.
In an "Attending Physician's Statement" at exhibit L, Dr. Nausieda set out restrictions against lifting, bending, sitting for extended period, and noted that the applicant's tremor impaired movement. At the hearing, however, he testified that the main restrictions from manganism would be due to imbalance or tremor problems causing unsteadiness with lifting, and slowness in doing work. August 2010 transcript, page 89. He did not think the applicant's back pain complaints were associated with manganism. Id.
Dr. Nausieda also did not think the applicant was totally disabled, at least on a functional basis, from the manganism as of the date of the hearing. He testified:
He has inability to work based on manganese. It's not total disability but we're not talking about fibromyalgia here....
August 2010 transcript, page 87
The report of the medical expert retained by respondent, Dr. Novom, is at exhibit 1. Dr. Novom did not believe the applicant suffered from manganism because he did not find sufficient clinical evidence to support the diagnosis. He did believe the applicant had fibromyalgia though he opined that that condition was not caused by his employment with the employer. Dr. Novom also thought the applicant's condition, including both his nervous system symptoms and his gastrointestinal symptoms, could also be the result of chronic alcohol abuse. He noted that alcoholism was an established cause of secondary Parkinsonism.
Dr. Novom concluded "[the applicant] principally suffers from fibromyalgia and questioned alcohol-related hepato-cerebral degeneration." Regarding the applicant's work exposure, he stated:
it is argued that CAD welding does not furnish exposure to manganese. In the absence of Mr. Koerner directly performing arc welding, it would be extremely difficult to implicate occupation-related manganism.
However, Dr. Novom did address the fact the applicant obviously had elevated levels of manganese in his urine when he underwent chelation. On that point, the doctor stated:
I don't know what to make of documented elevated urine manganese levels, particularly following chelation therapy. Obviously, such levels are well beyond normal limits for the general population. My understanding is that Mr. Koerner would not be exposed to manganese fumes in the course of CAD welding. To what extent he may have been exposed to more conventional arc welding fumes in nearby environment by co-workers is indeterminate. Regardless of described elevated body manganese levels, I am not impressed with any clinical correlation. In the respected journal of Neurology, movement disorder expert, Dr. Joseph Jankovic, discusses in June 2005 "epidemiologic, experimental, or other studies of standard textbooks of Parkinson's disease and of other movement disorders, do not provide any convincing evidence that welding is a significant risk factor for Parkinson's disease or for parkinsonism, or that manganese-induced parkinsonism shares any pathogenetic mechanisms with Parkinson's disease." In an editorial in the same June 2005 issue of Neurology, neurologic specialists from the Mayo Clinic, Doctors Kieburtz and Kurlan, express "in the meantime, the associations of neurologic syndromes with welding-fume exposure must be considered speculative and tentative."
2. Discussion and award.
The commission concludes that the applicant is disabled from manganism, or manganese poisoning, caused by an appreciable period of workplace exposure that was either the sole cause or a material contributory causative factor in the onset or progression of the condition. The commission also credits Dr. Nausieda's opinion that the applicant has a 20 percent disability, and that his condition has stabilized. August 2010 transcript, page 88.
Regarding causation, the commission credits Dr. Nausieda's medical opinion for several reasons. The record is clear the applicant has elevated levels of manganese in his system. He was exposed to welding fumes containing manganese while working for the employer, both in assisting outdoor welding by shielding the person performing the welding from the wind and in work performed in the substations. He exhibits many of the symptoms of manganese toxicity, and they affect his ability to work.
The respondent asserts that the applicant did not prove that he was actually exposed to manganese during his employment. However, the applicant's testimony (April 2010 transcript, pages 18-19, 62-64) and that of the employer's witness, Mr. Bahr (October 2010 transcript, pages 64-65, 75), established that the applicant assisted a contractor doing stick or wire welding. Further, the testimony of the applicant and Mr. Bahr establishes that the applicant went in and out of substations where stick or wire welding was being performed. Dr. Nausieda testified that both stick and wire welding liberates manganese. August 2010 transcript, pages 39-41.(1)
While the respondent offered material safety data sheets to establish that the CAD welding the applicant performed did not involve manganese exposure--which Dr. Nausieda acknowledged during his testimony--the respondent did not offer evidence to counter Dr. Nausieda's expert testimony about the liberation of manganese in fumes during stick welding and wire welding. Indeed, Dr. Novom assumed the applicant was exposed to manganese while working for the employer. October 2010 transcript, pages 45, 56.
The commission appreciates that the applicant did not have long-term exposure to manganese while working for the employer. However, he did work where manganese was liberated in fumes during welding done by others, and Dr. Nausieda testified persuasively that manganese poisoning is not limited to the person doing the actual welding under those circumstances. August 2010 transcript, page 41. The doctor gave as examples two other patients who were plant workers, not welders, but who worked in environments where welding was present; both had manganese poisoning. Moreover, while the applicant was outdoors when shielding the wind for the welding contractor from Iowa, the applicant was in close quarters with the welder and site of welding. He testified that he inhaled welding fumes when he helped in this manner. April 2010 transcript, page 25. From a practical standpoint, it makes little sense for a person shielding a welding site from the wind to stand any great distance upwind. In any event, Dr. Nausieda testified persuasively that there is no fixed, quantitative exposure to manganese that is toxic, and that the level varies from individual to individual.
The commission realizes that the applicant had back pain complaints, and possibly neck and shoulder pain complaints, that go back several years and predate his employment with the employer. However, Dr. Nausieda does not associate back pain with manganism. August 2010 transcript, page 89. On the other hand, the applicant did not complain of fragmented sleep or the tremor until after his employment exposure with the employer beginning September 2000.
The respondent points to medical notes, particularly a chiropractor's note at exhibit 9 and Dr. Thomas-King's note at exhibit 2, that refer to symptoms predating his employment with the employer. However, the commission reads those notes to refer to back or joint pain (certainly back pain was the focus of the chiropractor's treatment), not the sleep disturbance, tremor and other symptoms Dr. Nausieda associates with manganism. The commission found no treatment note dealing with those symptoms that predates the applicant's employment with the employer. Merely because the applicant had some back pain, and possibly neck and shoulder pain, that predated his employment with the employer, that does not mean he could not subsequently experience disabling symptoms from manganism, especially where, as here, the medical experts do not associate manganism with back pain.
Dr. Novom indicates that the applicant's symptoms--or at least some of them--can also be explained by his alcohol consumption. In a treatment note from March 2002, the applicant admitted to drinking a "12-pack per day." (See March 26, 2002 note of Dr. Patel in exhibit 2). Dr. Nausieda acknowledged that most people underreport their alcohol consumption to their doctors. While the applicant testifies he is drinking less now, he has consumed rather a lot of alcohol in his adult life. This level of chronic alcohol consumption, Dr. Novom testifies, is associated with neurologic symptoms including Parkinsonism.
On the other hand, the undisputed fact is the applicant has elevated levels of manganese in his blood. The commission located no medical note indicating that the applicant was intoxicated during a medical examination, that a blood screen or test showed alcohol in his blood, or that testing showed liver function problems associated with alcoholism. Dr. Nausieda testified to the importance of lab tests in determining the effects of alcohol consumption. August 2010 transcript, page 66. The applicant underwent blood work during his chelation treatment which showed liver function as normal. See exhibit G, third page; August 2010 transcript, page 67. Between alcohol consumption and manganese poisoning, the commission believes the latter is more probably the cause of his symptoms.
For similar reasons, the commission cannot conclude that the increased levels of manganese in his blood are due to the non-work related consumption of food or vitamins containing manganese coupled with decreased liver function caused by alcohol consumption. As noted above, Dr. Nausieda testified that problems from excreting manganese in food sources occurs in people with a loss of liver function who were basically at death's door, a characterization which does not include the applicant in this case. Moreover, while Dr. Novom recommends a series of liver function tests, again, the applicant had a normal liver function test after developing his symptoms including tremor and insomnia. The commission has not located any record that shows liver function problems, nor has Dr. Novom identified any blood test that supports that assumption. August 2010 transcript.
Further, even if the applicant had decreased liver function, that would be an "as is" condition with respect to any propensity to develop manganism from employment exposure to welding fumes. Wisconsin follows an "as is" rule under which employers take their employees as they are, predisposition to injury from a pre-existing condition and all. The supreme court has stated that if work exposure causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). See also: Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971). Thus, if decreased liver function made the applicant more susceptible to manganism due to inhalation of welding fumes at work, the condition would still be compensable. Again, however, it has not been shown that the applicant has decreased liver function or liver damage.
Dr. Novom testified that chemicals such as pesticides and herbicides contain manganese. October 2010 transcript, pages 14, 15. The applicant was a licensed pesticide applier who applied pesticides during his 10-year exposure with Asplundh Tree. April 2004 transcript, page 54. However, there is no evidence that the applicant was exposed to manganese while applying chemicals as part of his job with Asplundh Tree, and Dr. Nausieda reasonably testified that welding was the only identifiable source. August 2010 transcript, page 45. Further, regarding the possible exposure to manganese in prior employment, the commission notes that the applicant's employment exposure with the employer need not be the sole cause or the main factor in the applicant's disabling 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 with the employer would have been a material factor in the development or progression of the disabling disease. Id.; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942). The commission is satisfied that it was.
The applicant does not claim temporary disability. Based on Dr. Nausieda's estimate at exhibit C,(2) the commission concludes that applicant has sustained permanent partial disability at 20 percent on a functional basis from manganism or manganese toxicity. However, the commission declines to decide now the issue of the applicant's permanent disability on a vocational basis for loss of earning capacity (including potential permanent total disability on an odd-lot basis). Dr. Nausieda's testimony makes it clear that he himself has not diagnosed fibromyalgia, and even if he had, he has not opined it arose out of the applicant's employment with the employer. Nor has any other medical expert so opined as far as the commission can determine.
This is significant because, as set forth above, Dr. Nausieda testified that the applicant's back pain would not be related to his employment exposure to manganese. The commission also reads the doctor's hearing testimony to be that the applicant's manganism may have caused trouble with balance, affecting his ability to carry heavy loads, but would not affect his ability to lift. August 2010 transcript, page 89. Indeed, while the doctor sets out work restrictions generally in the Attending Physician's Statement at exhibit L, the commission reads Dr. Nausieda's testimony generally to indicate that he has not set work restrictions specifically for manganism. Transcript, page 89 et seq.
The report of the applicant's vocational experts, Sarah Holmes and Timothy Riley, at exhibit E, however, is based on the restrictions set by Dr. Nausieda and Dr. George. Both doctors set significant lifting restrictions which Dr. Nausieda has opined are not due to manganism. Dr. George sets out additional restrictions which may be due to other conditions, such as fibromyalgia, for which applicant is not seeking compensation and which he has not shown to have arisen out of his employment with the employer.
In order to award permanent disability on a vocational basis for loss of earning capacity, including potential permanent total disability on an odd-lot basis, in this case, consideration must be given to the work restrictions made necessary by the applicant's compensable manganism condition. Consideration of expert vocational opinion stating the extent of lost earning capacity based on those restrictions would also be desirable. However, consideration of neither is possible on this record. Rather than directly exercising its authority under Wis. Stat. § 102.18(3) to order the taking of additional evidence on this issue, the commission shall leave its order interlocutory to permit the applicant to pursue a claim for permanent disability on a vocational basis (including, potentially, permanent total disability) should the applicant desire to bring it.
At the hearing, it was established the applicant previously was paid permanent partial disability based on a 10 percent loss at the knee and 4 percent loss at the shoulder. Based on Wis. Stat. § 102.52(1) and (11), this works out to payments of 42.5 weeks and 20 weeks respectively, or 62.5 weeks in total. Under Wis. Admin. Code § DWD 80.50(2), those weeks must be subtracted from the 1000-week base under Wis. Stat. § 102.44(3) to determine the applicant's award for his unscheduled, functional disability from manganism.
The applicant is therefore entitled to 187.5 weeks (0.20 times 937.5 weeks) of compensation for permanent partial disability paid at the weekly rate of $212(3) (the statutory maximum for injuries in 2002), totaling $39,750.00, all of which is accrued. The applicant agreed to the withholding of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent on the permanent partial disability award, or $7,950.00. The remainder, $31,800, shall be paid to the applicant.
The remaining issue is compensation for medical expenses. The applicant documented these expenses in exhibit M, an Amended Medical Treatment Statement on form WKC-3. The respondent submits its version of a Medical Treatment Statement (exhibit 4), which appears to be a good faith effort to account for some discrepancies in the applicant's exhibit. It does not appear the applicant has objected to the adjustments outlined in exhibit 4, and, accordingly, the commission shall base its medical expense award on that document. The applicant has incurred reasonable and necessary medical expense to cure and relieve the effect of the work injury as follows: from WI Institute for Neurologic & Sleep Disorders, $3,517.25, of which the applicant paid $1,990.99, Lineco paid $488.17, Medicare paid $695.74, $212.18 was adjusted from the bill, and $130.17 remains outstanding; and from Aurora Sinai Medical Center, $16,053.25, of which the applicant paid $1,100.00, Medicare paid $9,345.30, and $5,607.95 was adjusted from the bill.
As set out above, this order shall be left interlocutory to permit the applicant to bring a claim for permanent disability on a vocational basis for loss of earning capacity, including permanent total disability, based on his current condition. Further, Dr. Nausieda expects additional treatment will necessary, and the commission concludes the applicant may experience additional disability due to his condition. Consequently, this order shall be left interlocutory to permit further orders and awards for disability and treatment expense that may arise in the future as well.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Ronald D. Koerner, the sum of Thirty-one thousand eight hundred dollars and no cents ($31,800.00) in disability compensation and Three thousand ninety dollars and ninety-nine cents ($3,090.99) in medical treatment expenses paid out-of-pocket.
2. To the applicant's attorney, Timothy S. Clark, Seven thousand nine hundred fifty dollars and no cents ($7,950.00) in attorney fees.
3. To WI Institute for Neurologic and Sleep Disorders, One hundred thirty dollars and seventeen cents ($130.17) in medical treatment expense.
4. To Lineco, Four hundred eighty-eight dollars and seventeen cents ($488.17) in reimbursement of medical treatment expense paid.
5. To Medicare, Ten thousand forty-one dollars and four cents ($10,041.04) in reimbursement of medical treatment expense paid.
This order shall be left interlocutory to permit further orders and awards as are warranted and consistent with this decision.
Dated and mailed
October 27, 2011
koernro . wrr : 101 : 2 ND6 3.4 Occupational Disease
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission conferred with the presiding ALJ concerning the credibility and demeanor of the witnesses. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). The ALJ offered no specific demeanor impressions per se. He described Dr. Nausieda as a paid expert, but noted that characterization applied to Dr. Novom as well. He also characterized Dr. Nausieda as a self-proclaimed expert on manganism. However, the commission notes that Dr. Novom himself has referred patients with manganism to Dr. Nausieda, and concludes that he is a qualified expert.
The ALJ explained during the credibility conference, as he did in his decision, that he regarded the applicant's exposure to manganese while working for the employer as insufficient to cause manganism. The commission disagrees with his conclusion for the reasons set out above. While this issue, of course, raises the question of the credibility of Dr. Nausieda vis-a-vis Dr. Novom, the ALJ did not indicate that he resolved that question based on the demeanor or appearance of the doctors when they testified before him.
cc:
ATTORNEY TIMOTHY CLARK
ATTORNEY WILLIAM SACHSE
Appealed to Circuit Court. Affirmed April 2, 2012. Appealed to Court of Appeals. Affirmed November 29, 2012.
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