STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRENDA JOYCE WOODHULL, Applicant

KIMBERLY KIND BAUER DDS, Employer

HARTFORD ACCIDENT & INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94033581

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, except that it makes the following modifications:

Delete the ninth and tenth paragraphs of the ALJ's decision and substitute:

"Temporary total disability benefits amount to $10,743.33 (48 weeks and 5 days at $220 per week). Permanent total disability began accruing on April 13, 1995 at $220 per week (or $953.33 per month for amounts accruing after the date of this order.) The award for temporary total disability and the accrued award for permanent total disability is subject to a twenty percent attorney fee. The unaccrued permanent total disability is subject to an attorney fee payable monthly at twenty percent of the monthly award, until a total of 500 weeks of permanent total disability have been paid and the fee in any event may not survive the death of the applicant.

"However, a full award for all accrued compensation may not be made at this time. The applicant's attorney has provided a Retirement, Survivors and Disability Insurance Notice of Award from the Social Security Administration. The notice states that the applicant became entitled to social security benefits beginning in November 1994.

"Consequently, only the temporary total disability benefit accrued from May 4 through October 30, 1994 shall be ordered paid in this order. This amounts to $5,683.33 (25 weeks and 5 days at $220.00 per week) payable within 30 days. Of that amount, twenty percent ($1,136.66) shall be paid to the applicant's attorney and the remainder ($4,546.67) shall be paid to the applicant.

"This case is remanded to the Division of Workers Compensation in the Department of Workforce Development to calculate the remaining award and attorney fee under Wis. Stat. § 102.44 (5)."

The ALJ's Interlocutory Order is deleted, and the second, third and fourth paragraphs of the commission's Interlocutory Order are substituted therefor.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

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

The applicant's gross weekly wage for workers compensation purposes is Three hundred thirty dollars ($330).

Within 30 days the employer and its insurer shall pay all of the following:

(1) To the applicant, Brenda Joyce Woodhull, the amount of Four thousand five hundred forty-six dollars and sixty- seven cents ($4,546.67), as partial payment for accrued disability compensation.

(2) To the applicant's attorney, Charles Rutlin, the amount of One thousand one hundred thirty-six dollars and sixty-six cents ($1,136.66), as partial payment of accrued attorney fees.

(3) To Children's Hospital, the sums of Twelve dollars and fifty cents ($12.50), Forty-three dollars and seventy- five cents ($43.75), Ninety dollars ($90), Fifty dollars ($50), Fifty-six dollars and twenty-five cents ($56.25), and Thirty-one dollars and twenty-five cents ($31.35).

(4) To Dr. Robert Fisher, the sum of One hundred twenty dollars and fifty cents ($120.50).

(5) To WPS, as reimbursement for its non-industrial insurance payments, the sum of Two hundred ten dollars and seventy-one cents ($210.71), and Three hundred fifteen dollars and ninety-six cents ($315.96).

(6) To Prime Care, as reimbursement for its non-industrial insurance payments, the sums of One hundred two dollars and thirty-six cents ($102.36), Three hundred twenty- seven dollars and fifty-two cents ($327.52), and Fifty dollars and seven cents ($50.07).

(7) To the Principal Insurance Company, as reimbursement for its non-industrial insurance payments, the sums of Eleven dollars and eighty-three cents ($11.83) and Thirty-four dollars and sixty-two cents ($34.62).

(8) To the applicant, the sum of One hundred seven dollars and sixty-four cents ($107.64), as reimbursement for mileage expense (414 miles at 26 cents per mile).

This case is remanded to the Division of Worker's Compensation in the Department of Workforce Development for calculation of the remaining award, as provided in the Findings of Fact as amended. Jurisdiction is reserved as to all issues for such further findings and orders as may be warranted.

Dated and mailed: October 30, 1997
woodhbr.wmd : 101 : 3 ND § 5.31

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case involves two related issues: first, the extent of the applicant's functional loss, if any, from a permanent worsening of her asthma condition due to occupational exposure to latex, and second, the extent of loss of earning capacity resulting from the work restrictions imposed on the applicant due to her latex hypersensitivity condition.

a. Functional disability for increased asthma symptoms.

The first issue is whether the applicant's underlying asthma was made permanently worse by occupational exposure to latex. The respondent's independent medical examiner (IME) contends it was not, though even he agrees exposure to latex will make the applicant's asthma temporarily worse, so she must avoid exposure to latex environments. But, the IME opined, other agents, such as dust mites, molds, cats and dogs, will also aggravate her asthma.

The applicant's doctor contends the occupational exposure to latex has permanently worsened her asthma condition. He opines that, her asthma symptoms have settled down some since she left the employer, they are persistently worse than they were before she started her employment with the employer. He notes not only the applicant's complaints but also her increased use of medications. He also notes that even the IME recommended stronger medications, suggesting the applicant's condition in fact has gotten worse.

The IME stated he thought her asthma symptom level would decline back to normal within a couple of months after leaving the employer. The IME goes on to suggest that, since more than two months had past, she was back at her baseline without permanent disability. This reasoning appears rather circular, particularly in light of the considerable and credible evidence about increased asthma symptoms and medication use.

It is true the applicant was exposed to substances other than latex (dog dander, smoke, dust mites, or mold) which might account for her increased symptoms. But the applicant was exposed to those substances before beginning to experience the dramatically increased symptoms after developing latex hypersensitivity. Further, the applicant's expert testified, credibly, that residual permanent disability from asthma occurs in fifty percent of latex hypersensitivity cases. On this record, the commission is satisfied that an appreciable period of workplace exposure to latex was either the sole cause or at least a material contributory factor in the progression of the applicant's underlying asthmatic condition.

b. Vocational disability for latex hypersensitivity.

The next question is the degree of vocational disability due to the applicant's latex hypersensitivity which the parties agree was caused by exposure to latex in the workplace. Even if the applicant had no permanent worsening of her asthma, the applicant has developed a permanent latex hypersensitivity from occupational exposure. Her hypersensitivity results in work restrictions and wage loss; the doctors all agree that she may only work in a work environment totally free of latex exposure and the employer's vocational expert concedes the restrictions result in a loss of earning capacity. Thus, the applicant's permanent latex hypersensitivity is a compensable permanent disability. (1)

The applicant claims she is permanently and totally disabled as a result of her latex hypersensitivity, a claim involving the "odd-lot" theory discussed in Balczewski v. ILHR Department, 76 Wis. 2d 487 (1977). The court of appeals summarized the Balczewski decision as stating that:

"once the claimant prima facie proves 100 percent disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate `that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity . . . If evidence of the degree of physical disability coupled with other factors `such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available."

Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989).

Professor Larson has noted that in odd-lot cases "it is not unreasonable to place the burden of proof on [the employe] to establish the unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable effort to secure suitable employment." 1C Larson, Workmen's Compensation, sec. 57.61(d) (1993). See also: Frederick T. West v. LIRC and Roadway Express, case no. 95- 2622 (Ct. App., June 11, 1996). Once the applicant has made a prima facie case of permanent and total disability under the odd- lot theory, however, the employer must prove not only that the applicant can perform work in the regular labor market, but also that such work is actually available. Balczewski at 76 Wis. 2d 495. See also: Rogelio Cabral v. LIRC, case no. 94-3309-FT (Wis. Ct. App. December 12, 1995) and Harry Morey v. LIRC, case no. 95-0673-FT (Wis. Ct. App. March 21, 1996).

The first question, then, is whether the applicant has made a prima facie case under the odd-lot rule. Here, the applicant has not only diligently looked for work after leaving the named employer, she has obtained jobs but had to quit them because of her latex hypersensitivity. Indeed, it is clear that she could not keep the jobs because of latex exposure (not exposure to dogs, dust or mold.) The job at Bergners, in particular, demonstrates what one doctor refers to as the ubiquity of latex products or the latex antigen in the workplace.

The applicant's medical expert encouraged the applicant to find work in a latex-free environment, but expressed reservations about whether she could find such work. The applicant's vocational expert makes the requisite finding that the applicant is eligible for so few positions which are so limited in quality, quantity and number that a reasonably stable market for them does not exist. The applicant's own efforts to find work bear this out. She has made a prima facie case of odd-lot unemployability.

Against this, the employer's vocational expert offers only a list of types of jobs that she believes the applicant can do. However, the employer's vocational expert stops short of making the required finding that those jobs are actually available to the applicant (or even that they are generally available.) Rather, she states it will take trial and error to find a suitable work environment.

The respondent asserts that the applicant could work in a latex free environment (which no one disagrees with), that the applicant's own testimony suggests there are many latex free environments, and that she could work in her home if nowhere else. However, the commission is not persuaded that the applicant's testimony may be fairly characterized as establishing that there are many environments in which she could work, nor is the commission willing to conclude that the applicant's ability to work in home by itself rebuts the applicant's prima facie case. In sum, the commission concludes the respondent has not met the requirement imposed upon employers for rebutting a prima facie case of odd-lot employability under Balczewski.

NOTE: The respondent also requested that the commission issue an order reflecting a social security offset. Shortly after receiving the ALJ's decision, Mr. Rutlin sent a letter dated May 16, 1997 establishing that the applicant was entitled to social security benefits as of November 1994. However, by the time this letter came to the ALJ's attention, the respondent had appealed the ALJ's decision.

At this point, the commission does not have a copy of the "Social Security Information Request" on form WKC-6156 which is used to calculate benefits payable under Wis. Stat. § 102.44 (5). This case is therefore remanded to the department to calculate the benefits payable under that section, based on the findings in the ALJ's order as amended.

cc:
ATTORNEY CHARLES L RUSTIN

ATTORNEY ROBERT H ZILSKE
ZILSKE LAW FIRM SC

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Footnotes:

(1)( Back ) Wagner v. Industrial Commission, 273 Wis. 553 (1956), mandate modified 273 Wis. at 567a (1957) and Butler v. DILHR, 57 Wis. 2d 190 (1973).