DARLENE M ZOELLICK, Applicant
TREK BICYCLE CORP, Employer
SENTRY INSURANCE A MUTUAL 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
May 30, 2102
zoellic . wsd : 101 : 9 ND6 6.33; 6.39
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
At issue here is the cause, nature, and extent of the applicant's respiratory condition. Exhibit B is a report from Dr. Wilmeth dated April 8, 2009. She refers to her treatment notes for both the applicant's history of work exposure and for her diagnoses of interstitial pneumonitis. Dr. Wilmeth indicated that the applicant had permanent restrictions against working in areas near potentially irritant chemical products, including adhesive cleaners. She stated that the applicant's condition was 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 applicant's condition. She noted the disability from work began when the applicant received permanent restrictions on January 7, 2009, and that work was a contributing cause in the aggravation and progression of the applicant's condition. She opined that the applicant had sustained permanent disability in the form of permanent restrictions and deferred rating the disability to the pulmonary medical specialist, Dr. Wilson. Dr. Wilmeth did, however, state elements of permanent disability included shortness of breath, persistent, relentless cough, headaches and fatigue. She noted that some improvement was expected with removal from irritant exposures and that ongoing treatment by pulmonary medicine would be expected.
Dr. Wilson also completed a practitioner's report on form WCK-16-B dated February 26, 2010. He, too, noted the applicant had permanent restrictions. Regarding the diagnosis and causation, Dr. Wilson included the following narrative report dated February 26, 2010:
Ms. Zoellick has lung disease characterized as Idiopathic NSIP, proven by biopsy, and responsive to treatment with steroids and immunosuppressants. This condition has also apparently been responsive to workplace restrictions, even though the exposures she has at work are not known to cause such illness. The temporal relationship to her workplace exposures, improvement when she is out of that environment, lack of other identifiable causes, and her continued good status now off of treatment for a number of months are the only argument that the workplace exposures described fully in Dr. Wilmeth's initial consultation have caused the patient's condition. I do conclude that causation is more likely than not and answer "yes" to question 4.(1)
Her most recent evaluations suggest that she has no persistent impairment. She told me she felt well, offered no complaints of dyspnea, and her most recent objective exercise testing revealed only minimally decreased exercise capacity with normal cardiac limitation and maximum oxygen uptake that was 79% of normal. It is true that her diffusing capacity (DLCO) is significantly diminished, but I can not estimate any permanent partial disability (PPD) to the whole organism based on that measurement alone.
I do hold reservations that in the future she may develop more significant impairment. I have waited to see if she is worsening clinically to be better able to conclude whether PPD is present or not. When I last saw the patient I requested she contact me if she was developing increasing respiratory problems, but she is apparently feeling well.
Dr. Wilson stated "no" to the question whether the applicant had permanent disability and "no" to the question of whether she would need further treatment. Indeed, in his final treatment note of September 23, 2009, he stated the applicant had no symptoms and was not on any medication.
The employer and its insurer (collectively, the respondent) rely on the expert opinion of Stuart Levy, M.D. He agreed that the applicant's diagnosis was nonspecific interstitial pneumonitis, which he described as a group of idiopathic (cause not known) interstitial lung diseases with a more favorable prognosis. He stated the lone feature of this condition was hypersensitivity pneumonitis. He added that none of the materials to which the applicant had been exposed in the workplace were identified in the causation of nonspecific interstitial pneumonitis. He did not believe any of the criteria for determining injury caused by an occupational setting were met in this case.
Dr. Levy observed that the mere manifestation of the condition during the period of employment did not raise an inference of a causal relationship between the condition and employment. He added that neither the fact that the condition became impairment during employment nor belief that employment caused or aggravated the condition is sufficient to establish a causal relationship. He believed the applicant's self-reported symptomology would more appropriately be classified as "work-aggravated symptoms," not an actual injury.
On this point, Dr. Levy noted that spirometry, lung volumes and corrected defusion capacity and pulse oximetry were all normal. There was no objective evidence of any pulmonary condition and that since she was 50 pounds overweight, shortness of breath was likely related to her obesity and poor physical conditioning. He did not think that there was any permanent partial disability related to a pulmonary injury.
Dr. Wilmeth submitted a responsive opinion dated April 18, 2011 (Exhibit C), Dr. Wilmeth noted that the applicant had been seen by Dr. Levy. She suggested that Dr. Levy ignored her (Wilmeth's) opinion "that 2-Butoxyethanol exposure was a known respiratory irritant and likely significant aggravating factor in the clinical presentation and progression of the applicant's symptoms." Dr. Wilmeth noted again the pattern of improvement in symptoms when away from work, re-aggravation upon return to work and increasing medication requirements with each subsequent re-aggravation. She stated, again, her opinion that the workplace exposures were causing the progression of her condition at a greater rate than would normally be expected.
Dr. Wilmeth did add that the mechanism of action of the 2-Butoxyethanol substance was on an irritant basis and not allergic sensitization. She, again, noted the clear temporal between workplace irritant exposures and improvement away from the workplace. She concluded:
For all of these reasons, I would continue in my opinion that this patient suffers from a condition where the workplace exposure to
2-butoxyelthanol is a material contributory causative factor in the condition's initial presentation, aggravation and progression.
Both parties offer vocational opinions regarding the effect on the applicant's earning capacity of the applicant's inability to work at Trek or in other places of exposure to chemicals. The applicant's expert, Janice Hindson, rated permanent partial disability at 40 to 45 percent based on Dr. Wilmeth's restrictions (that she not return to Trek and be restricted from work near potentially irritating chemical products including adhesive cleaner). The respondent's expert, Cynthia Engebose, rated permanent partial disability at 35 to 40 percent under the opinions offered by Dr. Wilmeth. (Exhibit 2). In a second report, however, Ms. Engebose suggested that if the applicant had retired at age 65 she would have had a 0 to 5 percent permanent partial disability.
As the parties point out, Wisconsin worker's compensation law recognizes what is called the Wagner-Butler doctrine,(2) discussed at length in Monna Sue Parker v. Lincoln Lutheran Racine, WC claim nos. 1996064027, 1998013720 (LIRC March 5, 1999), where the commission noted:
Under the Wagner-Butler doctrine, a worker who suffers a 'permanent sensitization' to certain chemical substances because of work exposure may be eligible for permanent partial disability based on wage loss, even though the problem completely clears up when he is away from work. Although the worker has no ratable permanent disability on a functional basis, the fact he can no longer perform his work has a very real permanent effect on earning capacity.
In such cases, the commission is to
evaluate the claimant's disability in terms of actual wage loss, based upon the extent of impairment of earning capacity.
Butler, 57 Wis. 2d at 197.
In this case, Dr. Wilmeth suggests that the applicant's work exposure caused her interstitial pneumonitis to progress more than it would have normally and that that condition currently still exists--that is, that the applicant is not simply experiencing symptoms that completely resolve when not exposed to chemical irritants. On the other hand, the applicant does not have significant ratable permanent functional disability. She apparently does not currently require medication for her pulmonary condition. That makes this case seem to fit within the Wagner-Butler doctrine, assuming that her prolonged exposure to 2-Butoxyethanol glycolethanol at work has made her sensitive to that substance, resulting in a permanent restriction against working in areas where she risks chemical exposure.
Dr. Levy, of course, opines otherwise. His report suggests that the non-specific interstitial pneumonitis is an idiopathic-that is not related to work-condition and that that condition merely makes her sensitive to chemical irritants including 2-Butoxyethanol. If that is the case, while possibly she may have a claim for temporary disability and treatment expense when the work exposure temporarily worsened her symptoms from the condition, she does not have a claim for permanent disability under the Wagner-Butler doctrine or permanent partial disability on a straight disability claim. Rather, all that happens is her symptoms become manifest at work, or--more accurately--her symptoms become manifest because of exposure to chemicals at work. However, under Dr. Levy's opinion, the work exposure did not affect her lungs permanently nor did work exposure cause her to become prone to aggravation by chemicals.
While Dr. Wilmeth states, repeatedly, that the 2-Butoxyethanol glycolethanol is an irritant, her opinion is that the exposure over years has actually caused the progression of the underlying non-specific interstitial pneumonitis. After careful consideration of the expert medical opinion and the treatment notes, the commission concludes that the applicant's prolonged exposure to chemicals at work caused her to develop a condition which makes her unable to continue to work in an environment where she is subject to exposure from the chemicals.
If the applicant had been immediately symptomatic when first exposed to the 2-Butoxyethanol glycolethanol in 2001, the commission could more easily credit Dr. Levy's opinion that the applicant merely was suffering from symptoms caused by her lung disease at work and that work exposure did not cause the underlying lung disease itself. However, the applicant worked with the decaling wash containing the substance for a few years before she began complaining of symptoms, and then her symptoms increased as she continued to work with the substance. This suggests that the substance itself caused the progression of her disease to the point that she can no longer be exposed to the substance (and other potentially irritating substances), as Dr. Wilmeth opined. Consequently, the commission, like the ALJ, credits Dr. Wilmeth's opinion and concludes it supports the payment of compensation for permanent disability under the Wagner-Butler doctrine.
The commission also adopts the ALJ's conclusion that the applicant sustained a 40 percent loss of earning capacity. This is supported by Ms. Hindson's opinion, as well as the report of Ms. Engebose. To be sure, Ms. Engebose did rate a lower 5 percent loss of earning capacity based on the assumption of the applicant's retirement at age 65, but the commission must reject this aspect of Ms. Engebose's opinion. First, the applicant credibly testified that her full retirement wouldn't have been until 66-1/2 and she was going to work longer than that if her body would have held up. Transcript page 38. Moreover, in another case involving disability due to a lung condition, the supreme court has held that a loss of earning capacity claim does not end with retirement. See Kohler Co. v. ILHR Dept, 42 Wis. 2d 396, 403, 167 N.W.2d 431 (1969).
Finally, the respondent argues that this case is only compensable, if at all, under Wis. Stat. § 102.565, which provides:
102.565 Toxic or hazardous exposure; medical examination; conditions of liability.232 (1) When an employee working subject to this chapter, as a result of exposure in the course of his or her employment over a period of time to toxic or hazardous substances or conditions, develops any clinically observable abnormality or condition which, on competent medical opinion, predisposes or renders the employ in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employee to continue employment involving such exposure and the employee is discharged from or ceases to continue the employment, and suffers wage loss by reason of such discharge, or such cessation, the department may allow such sum as it deems just as compensation therefor, not exceeding $13,000. In the event a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment, and the employee has a history of such exposure, compensation as provided by this section shall not be allowed nor shall any other remedy for loss of earning capacity. In case of such discharge prior to a finding by the department that it is inadvisable for the employee to continue in such employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who so discharges the employee is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by s. 102.62.
The department's interpretative footnote provides:
232 Section 102.565 was amended to include exposure to toxic or hazardous substances and conditions where further exposure has the risk of creating a disability. If the employee changes employers, he or she becomes entitled to payment of compensation benefits on a wage loss basis. Benefits under this section are for nondisabling conditions. In the event that there is lost time from work or there is permanent disability, there is a date of injury and benefits are paid as they would be for any injury. This section applies to nondisabling conditions occurring after May 13, 1980. It does not apply to occupational hearing loss since termination or transfer to non-noisy employment creates a date of injury under s. 102.555. [Emphasis supplied.]
DWD, Worker's Compensation Act of Wisconsin, with amendments to April 2011 (WKC-1-P (R.04/2011)).
Thus, Wis. Stat. 102.565 applies in situations where the worker has a non-disabling condition that may be caused by toxic or hazardous exposure and as a result is differentially susceptible to disability to the extent that it is inadvisable for him or her to continue employment involving such exposure. However this section is inapplicable in this case because, as noted by the ALJ and stated in the department's footnote,(3) it does not apply when there is lost time from work due to the condition or a permanent disability. In this case, the applicant has lost time from work due to the condition.
cc:
Attorney David L. Weir
Attorney Daniel L. Zitzer
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