Wis.LIRC WC Decision: Adams, Vicki - June 10, 1993 - ND � 3.4 - Occupational Disease - date of injury - date of disability is date of first wage loss through lost work time attributable to the effects of occupational disease

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

VICKI ADAMS, Applicant

CUB FOODS, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

THRESHERMENS MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91-074342

Threshermen's Mutual Insurance Company submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued in this matter on December 8, 1992. Liberty Mutual submitted an answer to the petition. At issue is which insurance carrier is liable for the applicant's conceded carpal tunnel syndrome.

The Commission has carefully reviewed the entire record and hereby reverses the Administrative Law Judge's Findings and Interlocutory Order. The Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant's compensable occupational carpal tunnel syndrome is conceded as one of the stipulated facts in this matter. The applicant began experiencing symptoms of carpal tunnel syndrome on September 24, 1990, and saw Dr. W. M. Fitzgerald for the problem on October 5, 1990. Dr. Fitzgerald diagnosed carpal tunnel syndrome, but the applicant did not miss any work time due to this visit or at any other time prior to November 1, 1990. Threshermen's Mutual was the insurance carrier through October 31, 1990, and Liberty Mutual assumed liability on November 1, 1990. The Administrative Law Judge found the date of injury to be September 24, 1990, when the condition became symptomatic.

The date of injury for occupational diseases 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 disability (section 102.01 (g), Stats.). The date of disability has consistently been interpreted by the courts and the Commission to be the first date of wage loss through lost work time attributable to the effects of the occupational disease. General Casualty Company of Wisconsin and Sharon Plumbing and Heating v. LIRC and Steven Schrock, 165 Wis. 2d 174, 180, 477 N.W.2d 322 (Court of Appeals 1991); Royal-Globe Insurance Company v. DILHR, 82 Wis. 2d 90, 93, 260 N.W.2d 670 (1978); Wagner v. Indus. Comm., 273 Wis. 553, 561, 79 N.W.2d 264 (1956). This includes cases in which the employe is able to make up for the lost work time through the use of sick leave, vacation time or flexibility of schedule, because in such cases work time and wages have been lost, even though the wages may subsequently be recompensed. General Casualty, 165 Wis. 2d at 182. In the case at hand, the applicant did not lose any wages or work time attributable to the carpal tunnel syndrome until November 1, 1990. Accordingly, that is her date of injury and Liberty Mutual is the liable insurance carrier.

In its brief to the Commission, Liberty Mutual made an equitable argument to the effect that disability in occupational disease cases should be determined by reference to the date of symptom manifestation. Otherwise, inequitable results could arise for employes who work night shifits and see a physician only during nonwork hours. This same general concern was expressed by Judge Gartzke in his concurring opinion in General Casualty, 165 Wis. 2d at 183.

The Commission has no power to make findings based solely on equity, and the case law plainly precludes the approach advocated by Liberty Mutual. In addition, the Commission disagrees with the argument that employes risk losing worker's compensation benefits because of the law's requirement that in occupational disease cases there must be lost work time in order for a date of disability to occur.

Any employe who sustains an occupational disease which causes that employe to miss any work will have a date of disability at the moment work is first missed. This is consistent with the mechanism of compensation for almost every traumatic work injury claim under Chapter 102 of the Statutes, where temporary and permanent disability are paid to the injured employe after he/she has missed work due to the injury. It is possible for an employe to receive permanent partial disability payments attributable to a traumatic work injury without ever having missed any work. But this is the rare exception, and it involves a situation in which an employe remains able-bodied enough to continue working indefinitely, while a worker who remains on the job while an occupational disease is developing is invariably headed for future disability compensation. (1) The only other form of worker's compensation which could conceivably be seen to be at risk due to date of disability determination in occupational disease cases is medical treatment expense incurred prior to the first lost work time. The initial symptoms of an incipient occupational disease may bring an employe to a doctor during nonwork hours. However, by the consistent judgment of Wisconsin courts, which the Wisconsin Legislature has not disputed in numerous legislative amendments to Chapter 102 of the Statutes, the costs for such treatment are not attributable to "occupational disease" as defined in Chapter 102.

Accordingly, the Commission finds no merit to the concern that an employe's worker's compensation benefits may be jeopardized by application of the rule of law for determining date of disability in occupational disease cases. With regard to the perceived inequity of the last employer/insurance carrier on the risk becoming liable for the entire consequence of the occupational disease, the court explained in Employer's Mutual Liability Insurance Co. v. Mc Cormick, 195 Wis. 410, 415-416, 217 N.W. 738 (1928):

"The company that had insured the compensation liability at the time disability occurred is the one that must pay the compensation award. This rule will work no injustice to any individual carrier or employer because the law of averages will equalize burdens imposed by this act upon the employers and the insurers of the state."

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The application for reimbursement filed by Liberty Mutual Insurance Company is dismissed. Liberty Mutual remains liable for the effects of the applicant's conceded carpal tunnel syndrome, and Threshermen's Mutual Insurance Company is dismissed from the proceedings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed March 31, 1993
ND � 3.4

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

NOTE: The Commission reversed the decision of the Administrative Law Judge as a matter of law. In support of his decision, the Administrative Law Judge quoted from General Casualty, 165 Wis. 2d at 181, where the court referred to the fact that "actual wage loss" is not a prerequisite to a finding of a disability, and it is the actual medical or pathological condition which is controlling. These statements were made in the context of explaining why an individual who has his/her wages reimbursed for lost work time may still submit a claim for occupational disease, or why an individual who retires from work may later submit such claim. The court specifically refused to overrule the well-established rule of law for determining date of disability in occupational disease cases.

cc:

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT STANGLE LIEB & WEIR

ATTORNEY PAUL R RIEGEL
BORGELT POWELL PETERSON & FRAUEN

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Footnotes:

(1)( Back ) Section 102.565, Stats., provides special compensation for nondisabling, occupationally-induced conditions which result in job loss prior to the ripening of disability.

uploaded 2003/09/03