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

MARC G TUTLEWSKI, Applicant

BIG BUCK BUILDING CENTER, Employer

UNITED WISCONSIN INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95027768

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: March 12, 1998
tutlema . wsd : 101 : 7  ND § 8.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant claims disability for degenerative osteoarthritis in his left hip. He has worked assembling wood construction trusses for the employer continuously since 1972, except for a nine month gap due to a lay-off in 1975. In 1995, at age 43, he was diagnosed with osteoarthritis in the left hip. The issue is whether the applicant's work with the employer was at least a material contributory factor in the progression of his osteoarthritis, so that his injury would be compensable as an occupational disease.

The ALJ, in a decision issued almost a year after the hearing, found for the applicant. He awarded temporary total disability for five one-day periods, permanent partial disability at 15 percent at the hip, and payment of medical expenses. He issued an interlocutory order because the applicant may require additional treatment.

The employer appeals. It first argues that the commission should set aside the ALJ's order and remand it for a new hearing. On this point, the employer cites Wis. Stat. § 102.18 (1)(b), which requires administrative law judges to issue findings and orders within 90 days of the close of the record. The employer also argues that because it took so long for the ALJ to issue a decision, he must have had difficulty deciding the case, thus establishing the applicant failed in its burden of proof. Finally, the employer argues the evidence favors a dismissal of the application.

The commission declines to set aside the ALJ's decision because of the 90-day rule under Wis. Stat. § 102.18 (1)(b). Wisconsin Statute § 102.18 (1)(b) itself does not provide for such a drastic result, effectively depriving an ALJ of jurisdiction. In fact, the statute provides no remedy or consequence for failure to issue a decision within 90 days. Thus, the commission has consistently construed the provision to be "directory," and resulting in no penalty for noncompliance. McElvaney v. ManuTronics, WC claim no. 91035278 (LIRC, February 5, 1993); Jeffrey Brazeau v. Clear Vu Window Cleaning, WC case no. 88036712 (LIRC, October 9, 1995). The court of appeals agrees with that construction, Wilbur Fish v. LIRC, case no. 94- 2831-FT (Wis. Ct. App., February 9, 1995).

The commission also must reject the employer's second assertion, that the delay in issuing a decision itself establishes legitimate doubt in this case. The commission declines to speculate on the reason the ALJ failed to issue his decision within the time specified under Wis. Stat. § 102.18 (1)(b).

The employer's third argument, which is dependent on the record itself, has the most merit. Essentially, the employer contends that the opinion of its independent medical examiner, William McDevitt, M.D., is as plausible, if not more probable, than that of the applicant's treating doctor, Joseph Davies, M.D. The employer points out that the applicant's father required hip replacement surgery; that applicant's overweight condition affected his hip condition; that the applicant's work only involved lifting at most 239 pounds, and then only infrequently and with another individual; and that the applicant did not have any precipitating incidents or significant acceleration in the progression of his condition that could be attributed to specific exposure. Indeed, the employer's attorney asks: "If the work were truly a material factor in causing progression of the disease process, is it not logical to presume that there would be some sort of incidents or exacerbations of the condition associated with the work activities that would have resulted in periodic medical treatment?"

IME McDevitt puts a great deal of emphasis on the applicant's weight as a significant aggravating factor in the progression of the applicant's degenerative hip condition. Yet this seems inconsistent with Dr. McDevitt's opinion that the condition is "not specifically related to heavy work activities." Exhibit 3, April 3, 1996 letter from McDevitt. The inconsistency is especially troubling in that IME McDevitt agrees the applicant should be restricted from heavy work because of his condition.

In its brief, of course, the employer minimizes the amount of lifting the applicant did do. However, the employer's manager, Darnell Graf, testified that the applicant accurately reported that the trusses averaged 200 to 300 pounds, though a lot of trusses weighed a lot less. The individual who narrated the videotape also estimated the weight to be in the 200 to 300 range. In addition, the roof line work involved jumping up and down from the worktable. While the applicant did this job only occasionally, when he did it he would have had to hop up and down from the table frequently, as evident from the videotape. The commission simply cannot credit Dr. McDevitt's conclusion that the applicant's hip would be in exactly the same condition had he worked for 23 years in a sedentary job.

Further, the commission declines to draw an adverse inference from Dr. Davies' opinion that the applicant's employment did not precipitate the degenerative condition in the first instance. The commission and the courts clearly recognize that work exposure which merely contributes to the development or progression of a pre-existing condition is compensable. Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-89, and n. 5 (1978). This is a natural consequence of the "as is" rule under Semons Department Store v. DILHR, 50 Wis. 2d 518, 528 (1971).

Nor does the commission believe reversal is justified based on the observation of the applicant's attorney that one would expect incidents or exacerbations if this were truly a case of occupational disease. An occupational disease may be the result of a series of minor traumas. Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982). But that does not mean the concept is limited to cases of repeated trauma. Indeed, that was the point of Shelby, which may be read as expanding the category of occupational disease to include cases of repeated trauma. Indeed, the court recognized that occupational disease may result simply from "certain types of lifting for a number of years." Id., at 109 Wis. 2d 662. The commission must also point out that the applicant testified, credibly, that he has had symptoms for three years, and his doctor describes him as stoic.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. First, I would like to agree with the majority on the question of whether the case should be remanded because the administrative law judge did not decide the case within 90 days. The argument is entirely without merit. It is unreasonable to penalize the employe for a delay by the administrative law judge. We do believe that cases should be decided in a timely fashion but when they are not the individual parties ought not to suffer because of the delay.

I found the opinion of Dr. McDevitt to be more credible than that of Dr. Davies. The employe began to complain about pain and stiffness in his hip two to three years prior to May 1995 according to Dr. Davies. He also had a thirty pound weight gain in that period of time.

Dr. McDevitt writes that "Although this condition of degenerative arthritis of the hip is a progressive condition, it is not felt to be specifically related to heavy work activities such as chronic arthritic back condition might be. The etiology of degenerative arthritis of the hips can be a hereditary condition and the fact that this patient has a father with bilateral total hip replacements would certainly make this seem to be a significant factor. In addition, this patient's weight would be a significant aggravating factor. I continue to feel that this patient's diagnosis of degenerative arthritis of the hips is not related to his work exposure in any way and would feel that if this patient has a sedentary type job for the past 23 years his degenerative arthritic condition in his left hip would be exactly as it is right now."

Dr. Davies wrote "I have also discussed with him the absolute importance of weight loss and I would like to see his weight down to approximately 210 pounds. I have gone over with him at length the importance of this and a reasonable approach to weight loss." Dr. Davies also recorded that his workplace exposure was not a precipitating event. Dr. Davies did believe that the work exposure had aggravated a preexisting condition.

For these reasons, I would reverse and find that the employe did not suffer a work injury.

Pamela I. Anderson, Commissioner

cc: ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

Appealed to Circuit Court. Affirmed February 5, 1999.

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