JACKIE L JAEGER, Applicant
EGGERS INDUSTRIES INC, Employer
TRAVELERS CASUALTY CO OF CT, Insurer
UNITED WISCONSIN, Insurer
The applicant, Travelers Casualty Company of Connecticut, and United Wisconsin each submitted a petition for commission review, all alleging error in the administrative law judge's Findings and Order issued in this matter on September 9, 2010.
At issue are whether or not the applicant sustained a traumatic or occupational injury arising out of and in the course of her employment with the employer. Should a compensable injury be found liability between the insurers based on date of injury, as well as treatment/mileage expense, also arise as issues.
On April 21, 2010, the commission directed the taking of additional medical evidence to address the additional legal issue of whether or not the applicant had sustained a "Wagner/Butler" type injury arising out of and in the course of her employment with the employer. Evidence was also requested regarding whether or not the applicant missed work between April 26, 2007, and her last day of work for the employer on September 16, 2008, due to a physical incapacity to work caused by her symptoms.
The additional evidence has now been received and reviewed by the commission, and after careful of the entire record compiled in this matter, the commission hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:
The applicant, whose birth date is March 7, 1965, began her employment as a production worker for the employer on June 7, 1999. Her job duties included finishing, sanding, staining, assembling and shipping veneer wood products. She experienced no problems with this work until April 26, 2007, when she was spraying stain and lacquer in the "steel case cell," which was an enclosed area of about 10 feet by 10 feet with a waterfall system flowing down the back wall to draw out fumes. The applicant had been experiencing cold and flu-like symptoms for approximately one month, but after performing the work for about two hours that day she "started having a hard time breathing." She was seen at the employer's first aid station and thereafter the plant manager then took her to a hospital emergency room. United Wisconsin was on the risk and continued to be so until January 1, 2008, when Travelers Casualty Company of Connecticut assumed coverage.
At the emergency room Dr. R. Bindra took a history of the applicant's preexisting cold/flu symptoms and the work incident, and noted wheezing in the applicant's breathing. He diagnosed "acute bronchitis with wheezing." No laboratory tests were performed and Dr. Bindra prescribed Prednisone and an inhaler. The plant manager brought the applicant back to work after about two hours at the hospital, and she finished her shift but had to use the inhaler. The applicant subsequently experienced several other instances of shortness of breath at work that required her to briefly stop performing her duties, but did not require her to leave the workplace. These occurred in May, August, and September of 2007, and in January and May of 2008. She has experienced no symptoms outside of the workplace.
The employer provided the applicant with a list of physicians she could see about her recurring problem and she chose Dr. Dennis Phillips, whom she first saw on July 2, 2008. Dr. Phillips' report of that date describes spirometry testing that showed no restrictive or obstructive lung disorder, but Dr. Phillips suspected the applicant was reacting to isocyanate in the air at the workplace. He recommended additional investigation including self-administered peak flow testing that the applicant would perform while at work.
In a report dated September 10, 2008, Dr. Phillips indicated the applicant's peak flow diaries reflected patterns of decreased airflow. Spirometry performed at work on August 25, 2008, showed volume "reduced compared to baseline;" while spirometry performed by Dr. Phillips on September 10, 2008, showed "mild reduction" in flow values. Dr. Phillips had also gone to the workplace and personally viewed the applicant's work setting. He opined that the applicant had acquired occupational isocyanate sensitization asthma. He also wrote that the symptoms of April 26, 2007, "...represented chemical-type of bronchitis and may have been the sentinel symptomology for isocyanate-type of asthma." He added that the applicant may have some early chronic nonspecific airway disease related to low-level isocyanate exposure. Dr. Phillips indicated that there are studies showing similar reactions to low levels of isocyanate, but these studies tend to show the individuals without isocyanate antibodies in their blood, and he did not believe inhalation challenge testing was worth doing in the applicant's case. He added that diagnosis of isocyanate asthma was usually made clinically.
The applicant's symptoms continued to appear only at work, and her last day of work was September 16, 2008. The employer sent her home that day due to her ongoing problem, and formally terminated her employment on December 2, 2008. She has not experienced symptoms since leaving the employment, and found work with another employer that began on January 7, 2009. That employment involves working with wood veneers, but there is no finishing involved and therefore no significant exposure to chemicals. She no longer uses her inhaler or takes any medication.
At the employer's request, the applicant saw Dr. Jeffrey Whiteside on October 14, 2008, for evaluation and assessment of her fitness for continuing work with the employer. Dr. Whiteside recounted the history and interpreted the pulmonary function tests performed on July 2, 2008, as showing mild obstructive lung disease. Dr. Whiteside opined the applicant "likely does have occupational asthma," and he recommended that she not continue working in an environment with any exposure to isocyanate.
On February 6, 2009, Dr. Phillips completed a WKC-16-B submitted with a letter/opinion in which he again diagnosed isocyanate sensitization asthma due to workplace exposure. He submitted another WKC-16-B and letter in July 2009, reiterating those opinions.
At United Wisconsin's request, Dr. Stuart Levy performed a record review and submitted a report dated April 16, 2009. Dr. Levy expressed skepticism regarding the reliability of unsupervised, self-reported peak flow testing, and indicated in vitro blood testing for antibodies was available. He believed the applicant's history of intermittent symptoms was inconsistent with isocyanate sensitization, because he believed sensitization would have resulted in immediate and recurrent symptoms with additional exposure to isocyanate.
Dr. Levy submitted a supplemental report dated March 3, 2010, in which he noted air monitoring testing had been performed at the work location on October 16, 2007, and the levels of all chemicals were below OSHA cutoff standards. Isocyanate levels were measured at less than .05 parts/billion, which Dr. Levy interpreted as making it "biologically implausible" for isocyanate sensitization to have occurred.
Travelers asked Dr. Alfred Habel to perform a medical record review and he submitted a report dated February 18, 2010. Dr. Habel recounted the applicant's medical/work history and opined that occupational asthma had not been established. He indicated that this was an unlikely diagnosis, particularly given what he saw as a lack of consistent symptoms related to the work exposure. Dr. Habel refrained from giving a specific diagnosis and indicated a methacholine challenge test would be very helpful. He described the applicant's workplace symptoms as "an irritant reaction" that resolves when exposure to various chemicals at work ceases. He recommended she find a work environment without exposure to "irritating vapors or fumes."
Dr. Habel subsequently examined the applicant on July 31, 2010, and submitted a report dated August 2, 2010. He diagnosed occupational bronchitis from nonspecific workplace irritants, emphasizing that the applicant's difficulties completely resolved after she left the employment. He opined there was no permanent disability.
Dr. Phillips saw the applicant again on June 15, 2010, for a medical update. He reiterated his diagnosis of isocyanate sensitization asthma. He indicated he had read Dr. Levy's report but opined that a methacholine challenge test would not be specific for the applicant's type of isocyanate sensitization asthma, and he believed such testing would trigger her asthma. He assessed ten percent permanent partial disability, but did not explain this assessment other than to relate it to the applicant's inability to work in an environment with any isocyanate exposure.
The administrative law judge indicated that he was accepting Dr. Habel's opinion when he found that the applicant sustained temporary work injuries on April 26, 2007, and again on July 2, 2008. He awarded medical and medical mileage expenses split between United Wisconsin and Travelers Casualty Company of Connecticut.
In response to the commission's order of April 21, 2011, Dr. Habel submitted two additional reports dated August 11, 2011, and November 21, 2011. Dr. Levy submitted two additional reports dated September 1, 2011, and October 17, 2011. Dr. Phillips submitted one additional report dated September 26, 2011. All these physicians primarily reiterate their original medical opinions. Dr. Habel opined that there were "episodic exacerbations of occupational bronchitis which have fully resolved" with no evidence of permanent sensitization. Dr. Levy repeated his opinion that there was no objective evidence of sensitization or asthma, and wrote that he agreed with Dr. Habel's opinion. Dr. Phillips opined that the applicant became sensitized to isocyanate at the employer's plant and that this led to "immediate-type onset isocyanate sensitization asthma."
Also in response to the commission's remand order, the parties stipulated agreement to the fact that the applicant sustained no lost work time due to her respiratory complaints after April 26, 2007, up until the date the employer discharged her.
There is agreement that the applicant's respiratory system reacted to some irritant present at the employer's workplace. It is also clear that this problem continued for the applicant while she continued her employment with the employer. Dr. Levy is adamant that the offending irritant was not isocyanate, and that the applicant did not sustain any permanent sensitization. He agrees with Dr. Habel's diagnosis of "episodic exacerbations of occupational bronchitis which have fully resolved." However, neither Dr. Levy nor Dr. Habel offered an opinion with respect to the workplace irritant that caused the applicant's symptoms. In his original opinion dated February 18, 2010, Dr. Habel opined that the applicant "...does appear to have developed an irritation from various chemicals at work, which resolves when not exposed to those chemicals." He additionally opined: "She needs to work at an environment where she is not exposed to any irritating vapors of (sic) fumes." Dr. Levy indicated agreement with Dr. Habel's opinions, although it is not entirely clear whether he agrees that to avoid recurring problems the applicant should not return to work at the employer's plant. If Dr. Levy does not agree with this restriction he would be the only physician on record who does not.
The difference between the terms "occupational asthma" and "occupational bronchitis" is not well explained by the physicians, but it is entirely credible and consistent with Dr. Phillips' opinion that the applicant's respiratory system became permanently sensitized to an airborne irritant at the employer's plant. Her symptoms first appeared on April 26, 2007, and persisted, ultimately causing the termination of her employment with the employer. As emphasized by the administrative law judge in his decision, the best evidence indicated that the levels of isocyanate at the employer's plant were low. However, consistent with Dr. Phillips' opinion, this does not mean that those levels might not cause a permanent sensitization in a particular individual such as the applicant. The commission finds that the applicant did develop a permanent sensitization to isocyanate at the employer's plant, which prevented her from continuing in that employment. She has experienced no symptoms away from her employment with the employer, and therefore her permanent sensitization constitutes a Wagner/Butler injury.(1) Dr. Phillips opined that the applicant was permanently sensitized as of April 26, 2007, which is therefore found to be the date of the occupational injury. United Wisconsin is the liable insurer because it was on the risk on that date.
In Wagner v. Industrial Commission, 273 Wis. at 567, the measure of permanent partial disability for this type of injury was expressed in terms of a comparison between pre-injury and post-injury earnings. However, in Butler v. ILHR Dept., 57 Wis. 2d at 197, the court clarified that assessment of permanent partial disability in this type of case properly involves assessment of "impairment of earning capacity." Accordingly, the commission has routinely considered the opinions of vocational experts regarding lost earning capacity in assessing permanency for Wagner/Butler injuries.(2)
The applicant was earning $16.00 per hour when last employed by the employer, and as of the date of hearing on August 18, 2010, she was earning $13.00 per hour in her new employment. Comparing these two hourly wage figures equates to a reduction in earnings of 18.75 percent, without taking into account the number of hours actually worked at the two jobs, or any other relevant factors. The applicant's vocational expert, Bruce Schuyler, calculated the applicant's annual earnings over the course of her last three years of employment with the employer, using an approximated amount for her final year of employment because she was unable to finish that year. He compared this annual figure with an annual figure that he believed the applicant was capable of earning away from the employer, and arrived at a 31 percent difference. However, after considering all the relevant factors he assessed the applicant's loss of earning capacity "in the range of 20 percent to 30 percent."
Respondent Travelers' vocational expert, Dennis Gross, used somewhat different figures to assess the applicant's pre-injury average annual earnings, and considering the relevant factors assessed loss of earning at 24 to 26 percent.
Considering the applicant's actual reduction in hourly wage as of the date of hearing, her inability to return to any environment where isocyanate is present, her age at the time of injury (almost 42 years old), and the other factors analyzed in the vocational reports, the commission finds that the applicant sustained a 25 percent loss of earning capacity as a result of her Wagner/Butler injury. This results in 250 weeks of accrued compensation at the applicable rate of $262.00 per week for a total of $65,500.00. A 20 percent attorney's fees will be subtracted from this total and paid to Attorney Scott W. French.
The applicant is also entitled to reimbursement for $1,533.32 in reasonably required medical expense that she paid out of pocket, and $64.76 in medical mileage expense.(3)
Now, therefore, this
The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Eggers Industries, Inc. and United Wisconsin shall pay to the applicant compensation for permanent partial disability in the amount of Fifty-two thousand four hundred dollars ($52,400.00); to applicant's attorney, Scott W. French, fees in the amount of Thirteen thousand one hundred dollars ($13,100.00); to the applicant as reimbursement for medical and medical mileage expense the sum of One thousand five hundred ninety-eight dollars and eight cents ($1,598.08); and to Aurora Physicians the sum of Four hundred eighty-six dollars ($486.00). This order is final.
Dated and mailed
February 28, 2012
jaegeja . wrr : 185 : 9 ND6 § 6.33
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission's partial reversal of the administrative law judge's decision was based on analysis of the medical opinions and the applicable law. The commission had no disagreements with the administrative law judge's credibility impressions of the witnesses who testified at the hearing held in this matter on August 18, 2010.
cc:
Attorney Scott W. French
Attorney Catherine A. Thomas
Attorney David J. Kania
Appealed to circuit court.
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