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

DONNA A SCHAFER, Applicant

COUNTY OF WALWORTH, Employer

COUNTY OF WALWORTH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96024272

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.

ORDER

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

Dated and mailed: January 14, 1998
schaedo.wsd : 101 : 7  ND § 5.32

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer makes two arguments: that the applicant failed to prove that she developed latex sensitivity and asthma as a result of her employment with the employer; and that if she has proven latex sensitivity caused by work exposure, the applicant has sustained no functional permanent disability either objectively or by application of the Wagner-Butler (1) doctrine.

The first question, whether the applicant has established she sustained an injury arising out of employment, specifically asthma, rhinitis, and conjunctivitis resulting from latex sensitivity, depends to a large extent on the credibility of the expert medical opinion.

The applicant submits the report of Jordan Fink, M.D., with whom the applicant treated for some time. Dr. Fink is board- certified in internal medicine and also in the fields of allergy and immunology. He prepared a form WC-16-B practitioner's report dated April 18, 1996 (Exhibit B.) He noted airway symptoms at work, preceded by hand dermatitis, with symptoms of asthma at work and at times outside of work. He concluded the symptoms were related to exposure to latex devices, especially gloves. His diagnosis was asthma, rhinitis, and conjunctivitis resulting from latex sensitivity. He opined the applicant could work, but not in a nursing home, and indicated that work exposure to latex caused disability directly and by occupational disease. He rated permanent partial disability at 30 percent for asthma and rhinitis due to latex sensitivity.

The employer submits the expert medical opinion of William E. Hogg, M.D., dated October 4, 1996. Dr. Hogg is board- certified in the field of internal medicine. He opined the applicant has only very mild asthma, which is not disabling. He noted it was not severe enough to cause her to quit smoking. Further, he believed a 75 percent (not 80 percent) FEV1/FVC ratio was the cut-off for normality, and using that standard, the applicant's pulmonary testing was only very mildly abnormal.

Dr. Hogg also opined the applicant's asthma was not caused by work, but rather the result of her cigarette smoking, multiple inhalant allergies, chronic sinusitis infections, and a genetic predisposition. He also opined that the pattern of the applicant's symptoms indicated the condition was not work related, noting first that she could go four days without experiencing symptoms as reported by Dr. Fink. He also sets out a chart on page 23 of his report which indicates that there is no absolute correlation between the severity of the applicant's symptoms as rated by the FEV1/FVC ratio and her time on or off work. Dr. Hogg also noted the absence of pulmonary testing before 1994, which he stated would be revealing, and could disprove Dr. Fink's observation that the applicant did not have asthma in the past.

Dr. Hogg also opined that it has not been proven that the applicant is even latex sensitive, as no skin test was done. He noted her RAST and ELISA tests were inconclusive. While the RAST was positive, Dr. Fink reported the ELISA test was borderline to negative (and Dr. Hogg stated there was no such thing as a "borderline" category.) Dr. Hogg also noted the applicant only had a welt on one arm, and that if she were truly latex sensitive, he would have expected a bilateral rash. Dr. Hogg went on to opine that her asthma condition in any event was not due to latex sensitivity. He opined that in order to ascertain the role of latex on her asthma, the applicant would have to eliminate the more likely causes (cigarette smoke, dog dander, or household chemicals that caused her symptoms) and would have to undergo immunotherapy to rule out other environmental allergens.

Dr. Hogg did admit that, if the applicant were shown to have a latex allergy, her work exposure to latex likely contributed to its development. He noted that while the latex gloves might have been removed from the nursing home environment, there are many other latex sources (catheters, tourniquets, rubber bands, elastic bandages, ace wraps, IV tubing, injections ports, medication vials, adhesive tape, and Band-Aids). However, he reiterated that, even if the applicant was latex sensitive, this was not the cause of her asthma.

Dr. Hogg finally reported the applicant had no permanent disability. He admitted that if a person was latex sensitive, and that sensitivity did cause asthma, it is possible for a person to have persistent asthma symptoms despite avoiding future latex exposure. However, Dr. Hogg opined that the pulmonary function tests were only mildly abnormal, and indeed were better than many people who smoked for fifteen years. He also noted the fact that she was not taking particularly aggressive medication for her asthma.

Dr. Fink testified at the hearing. He reiterated his opinion that the applicant was sensitive to latex, and that that condition caused her asthma. He noted that while she was allergic to dog dander and other substances, the symptoms of her condition were worse when she was at work exposed to latex than when she was at home and not exposed to latex. Indeed, he pointed out that her wheezing at work caused her to seek treatment in the first place.

He testified that the reason that the applicant's FEV1/FVC ratio at times was better while she was still working than while off work could have been due to medication. Her readings, he testified, were all abnormal. He also pointed out that asthma was a "very fluctuating disease." Transcript, page 43. None of the pulmonary tests, of course, were done when she was actually at work.

On cross-examination, Dr. Fink noted that he did not do skin tests to prove latex sensitivity because that procedure sometimes provoked so severe a response that the patient had to be hospitalized. Transcript, page 36. Regarding smoking, Dr. Fink admitted that smoking could cause a patient to experience even worse pulmonary function than the applicant had. Yet he indicated that smoking would not cause asthma; that the damage done to lungs by smoking results in a destructive disease as is not the case with asthma; and that cigarette smoking caused permanent, rather than chronic, obstructive defects that actually destroys the lungs. Transcript, page 52. He did admit that cigarette smoking could cause the applicant's asthma symptoms to get worse, but denied it would cause the asthma in the first place.

He therefore ruled out cigarette smoking as a cause of her asthma. He admitted she probably was predisposed to asthma, but testified it would not have developed had she not been exposed to latex in the workplace. Transcript, page 56. It also came out that the applicant's mother developed asthma after she, too, began working in a nursing home.

Regarding permanent disability, Dr. Fink noted the applicant now has asthma attacks twice per week (transcript, page 57), and that she has persistent and permanent damage from latex sensitization. He testified his permanent disability rating is based on the extent to which asthma has caused a dysfunction to her lifestyle: the need for medication, the need to avoid latex in the environment, and the effect of periodic asthma attacks. Transcript, pages 51 and 58. He strongly disagreed that the applicant would be okay as long as she stayed away from latex and latex-related products. Transcript, page 57.

The commission concludes that the applicant did sustain latex sensitivity caused by work, and that the latex sensitivity caused her asthma. It accepts the opinion of Dr. Fink for a number of reasons. First, ALJ Phillips, who observed Dr. Fink testify, told the commission he found the doctor credible and the commission itself notes his obvious qualifications as an expert. Second, as Dr. Fink observed, the applicant's symptoms are consistent with asthma, not emphysema or other destructive conditions caused by her cigarette smoking. Third, the commission declines to draw an adverse inference from the absence of airway testing before 1994; it is reasonable to conclude that the fact the applicant took none probably means she had no prior pulmonary problems. Fourth, Dr. Fink reasonably explained why he did not give a skin test for latex, and why he thought latex was the causative agent.

In short, while the applicant has been a cigarette smoker, and is allergic to numerous substances, she did not develop asthma until she started working for the employer. Her earliest severe reactions were at work. Once she developed asthma, it is not surprising other agents (like household cleaners) began causing chest tightness.

The next issue is the extent of disability. The commission does not believe this case is governed by the Wagner-Butler doctrine. It is true that two commentators have hypothecated the possible application of the doctrine in cases involving allergic- type reactions to airborne agents which prevent a worker from returning to his or the old occupation. (2) However, the commission concludes that the Wagner-Butler doctrine would only apply in those cases where latex exposure causes sensitivity at work that goes away off duty.

In this case, the applicant testified she is sensitive to latex off-duty as well (page 75, see Exhibit F). In addition, the applicant's symptoms have gone beyond mere allergic sensitivity and include occupational asthma. Further, neither doctor gives an opinion which supports application of the Wagner- Butler doctrine. Dr. Fink specifically rejects it, and Dr. Hogg acknowledges that asthma induced by latex sensitivity may cause functional permanent disability. Further, the applicant testified her symptoms continue, even after she has stopped working, pages 81 and 103.

The commission also adopts Dr. Fink's permanent disability rating. The applicant now has asthma symptoms and has to use an inhaler; she did not before her exposure to latex at work. Dr. Fink's rating is also supported by the testing he performed which, he opined, showed a permanent problem. The commission is persuaded that the applicant's condition has permanently affected her ability to function, and Dr. Fink's rating is more reasonable than Dr. Hogg's contrary opinion.

cc:
ATTORNEY CHARLES L RUSTIN
LAW OFFICES OF CHARLES L RUSTIN

ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK 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). The distinguishing feature of the Wagner-Butler line of cases is that work exposure causes a permanent sensitization to a workplace chemical where no sensitization existed before, and which only arises at the work place. Thus, there is no real functional permanent disability as there are no residual symptoms when the worker is off-duty. Under the Wagner-Butler doctrine, the worker may nonetheless be entitled to permanent disability for impairment of earnings.

(2)( Back ) Neal and Danas, Workers Compensation Handbook § 5.32 (4th ed. 1997).