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

RICHARD C STROJNY, Applicant

WORZALLA PUBLISHING COMPANY, Employer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95002315

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 9, 1998. The respondents submitted an answer to the petition and briefs were submitted by the parties. An occupational left shoulder injury was conceded with a date of injury on November 28, 1994. Temporary disability was paid from November 28, 1994 through September 11, 1995, and 20 percent permanent partial disability at the left shoulder was conceded and paid. At issue is a claim for an additional five percent permanent partial disability at the left shoulder, as well as for an occupational right shoulder injury. Nature and extent of disability and liability for medical expense attributable to the alleged right shoulder injury are also at issue.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began his employment with the employer as a typesetter and strip caster on February 1, 1960. On November 21, 1967, he was reassigned to duties as a lithographic cameraman, and performed that job for the next 27 years. It involved substantial repetitive movement of both arms and shoulders throughout the day, as accurately described on pages 2 and 3 of the administrative law judge's decision.

In the middle of 1994, the applicant began to experience left shoulder discomfort which was ultimately diagnosed by Dr. Matthew Riordan as impingement syndrome and adhesive capsulitis. Dr. Riordan excused the applicant from work beginning on November 29, 1994, and on January 10, 1995, he performed a left shoulder decompression and acromioplasty. He released the applicant to restricted work as of March 22, 1995, but since the employer could not accommodate these restrictions, the applicant remained off work and continued to receive temporary disability.

On July 31, 1995, Dr. Riordan noted there was no improvement in the applicant's left shoulder condition, and that he complained of the same symptoms in his right shoulder, beginning over the previous several months but particularly over the previous three to four weeks. Dr. Riordan ultimately made the same diagnoses in the right shoulder as he had in the left, but did not perform surgery.

The applicant resumed restricted, part-time employment with the employer on August 21, 1995, and after about one month, he returned to restricted, full-time employment. In October 1996, the applicant stopped working due to heart surgery, and did not return until May 7, 1997.

Dr. Riordan opined that both the applicant's shoulder conditions were causally related to his work activities and that he had sustained 25 percent permanent partial disability at each shoulder. Respondents' physician, Dr. Donald Kranendonk, opined that the left shoulder condition was work related with 20 percent permanent partial disability, but that since the right shoulder condition did not manifest itself until after the applicant had stopped working in November 1994, it was not work related.

The physicians agree that the applicant's left shoulder condition is causally related to his employment activities with the employer. The employer conceded this injury and the date of injury on November 28, 1994. Dr. Riordan's assessment of 25 percent permanent partial disability at the left shoulder, which takes into account the applicant's loss of motion, as well as reduced strength and endurance, is accepted as credible.

The applicant performed the same tasks and movements using his right shoulder as he did using his left shoulder, and as noted in Dr. Kranendonk's report, the applicant credibly indicated that he had developed some symptoms in his right shoulder prior to leaving work on November 29, 1994. He did not report these symptoms at that time because the left shoulder symptoms were more severe and he was more concerned with them. The commission infers that Dr. Riordan credibly opined that the occupational duties of the applicant's employment with the employer were also causative of his right shoulder condition.

Respondents argued and the administrative law judge found that the applicant had not established a legal date of injury for his right shoulder condition, because even though it was clear that he would have missed work for that condition beginning in July of 1995, at that time he was already off work due to the left shoulder condition. The administrative law judge found that since there was no actual lost time from work which could be attributed to the right shoulder condition, there was no occupational date of injury for purposes of compensation under Chapter 102.

The statutory subsection defining date of injury for occupational disease is Wis. Stat. § 102.01(1)(g)(2.) which reads:

"(2.) In the case of disease 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."

The historical standard for determining "date of disability" in an occupational disease case has been to determine the first date of wage loss attributable to the effects of the occupational disease. Royal-Globe Insurance Company v. DILHR, 82 Wis. 2d 90, 93, 260 N.W.2d 670 (1978); Wagner v. Industrial Commission, 273 Wis. 533, 561, 79 N.W.2d 264 (1969). The concept of wages loss has been broadened to include lost work time attributable to the occupational disease, even though the wages for such lost work time may subsequently be recompensed. General Casualty Company of Wisconsin v. LIRC, 165 Wis. 2d 174, 182, 477 N.W.2d 322 (Court of Appeals 1991).

There is no reported case law in which the precise issue at hand has been faced; i.e., is there a date of disability when an occupational disease would have caused lost work time but for the fact that the applicant was already off work due to temporary disability attributable to a separate injury? (1) However, after considering the case law, and the purpose of the "date of injury" statute, the commission has come to the firm conclusion that there is a date of disability in the aforementioned circumstance.

In Kohler Company v. ILHR Department, 42 Wis. 2d 396, 167 N.W.2d 431 (1969), the employer attempted to avoid liability for a silicosis/emphysema claim by arguing that since the applicant remained employed until he retired, there was never any wage loss and thus never any legal date of injury (it was medically proven that the applicant had contracted silicosis and emphysema long before he retired). The court rejected this argument and held that in Wisconsin, occupational disease is conclusively presumed to include a loss of earning capacity, just as loss of earning capacity is conclusively presumed in scheduled and non-scheduled traumatic injuries. The date of injury in Kohler was a simple matter to discern because it was the last day the applicant worked for the employer. The facts of Kohler were such that the court was not required to address the specific question concerning date of disability which arises in the applicant's case. However, in rejecting the employer's conceptual argument that there must be an actual wage loss before there can be an occupational date of injury, the court rejected an overly- restrictive interpretation of the rule by which wage loss fixes the occupational date of injury. The court stated:

"While we agree that there is no right to compensation for permanent disability until there is disability, we hold that an actual loss of earning is not an additional prerequisite." Id. At 407

In General Casualty Company of Wisconsin v. LIRC, (supra), the employer disputed the commission's finding that missed work time qualified as a date of wage loss, because the employer had not docked the applicant's pay when he missed work to see the doctor about his occupational back injury. The court affirmed the commission, and in the process stated:

"However, while this `wage-loss presumption' facilitates factual determinations made by the commission, actual wage loss in not a prerequisite to a finding of disability. Royal-Globe, 82 Wis. 2d at 95, 260 N.W.2d at 673; Kohler, 42 Wis. 2d at 405, 167 N.W.2d at 435; Montello Granite, 227 Wis. At 188, 278 N.W. at 399. The supreme court has explained that `[it] is the actual or medical or pathological condition of the work . . .that is controlling . . .. [R]ecovery [is possible] in occupational disease cases whe[ther or not] actual loss of wages is involved.' Kohler, 42 Wis. 2d at 403-405, 167 N.W.2d at 434-35."

The applicant's right shoulder condition had ripened into an occupational disease by the time Dr. Riordan saw him on July 31, 1995. It can be argued that there was no actual wage loss attributable to the right shoulder on that date, because the applicant was already on temporary disability due to his left shoulder condition. But there was a constructive wage loss, because the credible inference from Dr. Riordan's clinic note is that the applicant could not have worked that day due to his right shoulder condition. The commission finds that the constructive wage loss in these factual circumstances fixes the date of injury for the applicant's occupational right shoulder injury. To find otherwise would lead to an absurd result in cases such as the applicant's, where the evidence reveals an occupational disease which had become disabling, and which constructively prevented the applicant from working. To find that a date of injury had not occurred in such circumstances would be contrary to the fundamental purpose of the Worker's Compensation Act, which is to furnish certain, prompt and reasonable compensation to the injured employe. Lisney v. LIRC, et al, 171 Wis. 2d 499, 508, 493 N.W.2d 14 (1992); State v. LIRC, 136 Wis. 2d 281, 288, 401 N.W.2d 585 (1987).

The factual circumstances of the applicant's case differ significantly from those in a commission decision cited by the respondents in their arguments, Vicki Adams v. Cub Foods, et al, W.C. Claim no. 91-074342, (LIRC March 31, 1993). In Adams, the date of disability was at issue. Adams had begun experiencing carpal tunnel symptoms in September 1990, and saw a physician who diagnosed carpal tunnel syndrome on October 5, 1990. However, Adams saw the physician during off work hours so there was no missed work time due to the carpal tunnel syndrome. She was able to work on October 5, 1990. She did not miss any work time attributable to the carpal tunnel syndrome, constructively or otherwise, until November 1, 1990. The date of injury was therefore fixed on November 1, 1990. This is in contrast to the applicant, whose right shoulder condition rendered him not able to work on July 31, 1995. Regardless of the fact that he was already off work and receiving temporary total disability for his left shoulder condition on that date, his right shoulder condition constructively caused him to miss work. Accordingly, there was a date of disability and a date of injury on July 31, 1995, pursuant to Wis. Stat. § 102.01(1)(g)(2.).

Temporary disability has been conceded and paid through September 11, 1995, when the applicant resumed full-time work. There is no medical support for temporary disability attributable to either shoulder condition subsequent to that date, and therefore no additional temporary disability is due.

Dr. Riordan assessed 25 percent permanent partial disability at the right shoulder. Dr. Kranendonk found the right shoulder condition unrelated to the applicant's work and gave no opinion regarding permanent disability for it. Accordingly, the only medical opinion of record concerning the extent of right shoulder disability is Dr. Riordan's opinion, which is accepted as credible.

The applicant is entitled to 125 weeks of permanent disability for each shoulder. The left shoulder injury had a 1994 injury date resulting in a permanent partial disability rate of $158 per week, for a total of $19,750. An unpaid balance of $3,950 remained as of the date of hearing on September 10, 1997, but the commission presumes that this balance (less a 20 percent fee to applicant's attorney) was paid to the applicant in accordance with the administrative law judge's order issued on January 9, 1998. If not, it is immediately due and owing.

The right shoulder injury had a 1995 injury date resulting in a permanent partial disability rate of $164 per week, which for 125 weeks totals $20,500. This has all accrued. A 20 percent attorney's fee is due in the amount of $4,100, leaving a balance due the applicant for his right shoulder injury in the amount of $16,400.

Reasonably required medical expenses are also due in the amount of $2,744.70 to Saint Michael's Hospital, $1,803.14 of which was paid by Sisco, $529.05 of which was paid by Heritage Mutual, and $412.51 of which was paid by the applicant; $695 to Klasinski Clinic, $409.55 of which was paid by Sisco, $139 of which was paid by Heritage Mutual, $64.80 of which was paid by the applicant, and $59 of which remains unpaid; and $160.16 to the applicant as medical mileage expense.

Dr. Riordan credibly opined that future treatment may be required, and therefore the order will be left interlocutory with respect to both shoulder conditions.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation for his occupational right shoulder injury the sum of Sixteen thousand four hundred dollars ($16,400); to applicant's attorney, Russell T. Golla, fees in the amount of Four thousand one hundred dollars ($4,100); to Sisco as reimbursement for medical expenses which it paid the amount of Two thousand two hundred twelve dollars and sixty-nine cents ($2,212.69); and to the applicant as reimbursement for medical and mileage expense the sum of Six hundred thirty-seven dollars and forty-seven cents ($637.47).

As noted in the above findings, the commission assumes that Heritage Mutual previously paid to the applicant for his left shoulder injury, besides the conceded amounts, the additional sum of Two thousand one hundred fifty-nine dollars and sixty-one cents ($2,159.61); and to Attorney Golla fees in the amount of One thousand dollars and thirty-nine cents ($1,000.39) and costs in the amount of Seven hundred ninety dollars ($790), in accordance with the administrative law judge's order issued in this matter on January 9, 1998. If these amounts were not previously paid they are also due within 30 days.

Jurisdiction is reserved for such further findings and orders as may be warranted with respect to both shoulder injuries.

Dated and mailed: June 9, 1998
strojri.wrr : 185 : 7 ND § 3.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not disagree with any finding of fact or credibility determination made by the administrative law judge. The commission's reversal of the administrative law judge's finding regarding the right shoulder date of injury was based on the analysis set forth above.

None of the cases cited by the administrative law judge directly addressed the circumstance of the applicant's case, where his occupational disease ripened into a disabling condition and was diagnosed on a date when he was off work due to a separate work injury. The controlling fact in the applicant's case is that the right shoulder injury did constructively cause him to miss work on July 31, 1995, because if he had not been on temporary total disability due to the left shoulder injury, the right shoulder injury would have caused him to miss work.

cc: ATTORNEY DAVID A PIEHLER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY THOMAS W BERTZ
ANDERSON SHANNON OBRIEN RICE & BERTZ

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Footnotes:

(1)( Back ) The administrative law judge found that the applicant credibly testified that even had his left shoulder been in perfect shape in July and August of 1995, he would still have been unable to work due to his right shoulder problems. The commission also finds this testimony credible. On 7/31/95, Dr. Riordan noted that the applicant's right shoulder was particularly bothersome to him, more so at that point than the left shoulder.