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

JOHN D BURNS, Applicant

OSCAR MAYER FOODS CORP, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1994065460

The administrative law judge issued his findings of fact and interlocutory order in this case on February 28, 1998, following a hearing on March 26, 1997 and a close of the record on July 29, 1997. The self-insured employer has submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the employer and the applicant submitted briefs.

Prior to the hearing, the employer conceded jurisdictional facts and an average weekly wage of $465.11. The issues before the ALJ, and now before the commission, were whether the applicant suffered an injury with a date of injury of December 29, 1995; and whether the alleged injury arose out of the applicant's employment with the employer while performing services growing out of and incidental to employment. If a compensable injury is established, the issues also include the nature and extent of disability, and the employer's liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby affirms the ALJ's findings of fact and interlocutory order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first six paragraphs of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.

The seventh, eighth and ninth paragraphs of the ALJ's Findings of Fact are deleted and the following substituted therefor:

"The question remains as to the date of injury. Wis. Stat. § 102.01(2)(g)2 provides:

`102.01(2)(g) Except as provided in s. 102.555 with respect to occupational deafness, "time of injury", "occurrence of injury", or "date of injury" means:
`...
`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.'

"In General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 178 (Ct. App., 1991), the applicant suffered a series of back injuries and underwent back surgery in 1972. In explaining its choice of a 1978 date of disability for the applicant's occupational back, the commission stated it consistently interpreted Wis. Stat. § 102.01(2)(g)2 as setting the date of disability or injury at the point when the symptoms of the occupational disease result in lost work time. The court of appeals affirmed the commission's interpretation, citing to Kohler Co. v. DILHR, 42 Wis. 2d 396, 400 (1969) where the court stated the most important question was `When did the occupational disease ripen into a disabling affliction?' The General Casualty court went on to explain that earlier cases created a conclusive presumption that that point is reached when the applicant first suffers a wage loss due to the occupational disease. General Casualty, at 165 Wis. 2d 174.

"This inquiry as to the date of disability cuts two ways. The date of disability is not the first time an occupational disease is diagnosed; there must be lost work time as well. By the same token, the date of disability does not occur the first time a worker misses work due to any disability to the affected body part. Rather, the disability must be due to occupational disease itself, separate from disability from any one of the series of early accidental injuries causing a condition which later ripens into occupational disease. Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982); and George Hoppe v. Ampco Metal, WC case no. 92027782 (August 31, 1995). Moreover, the commission has consistently held that there may be multiple dates of injury in cases of continuing work exposure, so that if additional exposure causes additional disability, a new date of injury is tied to the later exposure. See Zurich General Accident & Liability v. Industrial Commission, 203 Wis. 135 (1930); Eisner v. Wis.-Pak, WC Claim no. 87-044815 (LIRC, February 14, 1991); and Neal & Danas, Workers Compensation Handbook, § 3.4 (4th ed., 1997).

"In this case, the first time any doctor mentioned occupational disease as an explanation for the applicant's back problem, as opposed to simply the most recent traumatic event, might well be Dr. Heiden's note for April 5, 1985 when he refers to `injuries at work' as causing the applicant's disability. However, occupational exposure is not mentioned again as the cause of the applicant's disability until January 2, 1995. On that date, Dr. Rosenthal opined the applicant's condition was due to chronic work exposure, most recently aggravated by the October 1994 work injury.

"It must be concluded that it was only with the October 1994 injury that the applicant's condition ripened into the disabling occupational disease for which Drs. Rosenthal and Iorio rated such high amounts of permanent partial disability. Prior to that time the applicant's condition had been not worthy of surgery, and perhaps not even a disability rating, as there was no evident disc herniation.

"After the applicant's October 1994 work injury, however, he had constant pain, an apparent disc herniation, and an increased need for treatment. It was only at this point, and after this additional exposure, that the occupational disease progressed to the point that a disc herniation could be caused by an off-duty sneeze. Dr. Rosenthal refers to the October 1994 injury as the most recent aggravating event. The applicant himself testified to continuing pain after the October 1994 work injury. In sum, the date of disability for the applicant's occupational back injury was the first instance of lost work-time after October 1994, which in fact occurred when the applicant was taken off work immediately after that injury. The date of injury therefore is October 13, 1994.

"The applicant suffered an injury in the form of an occupational disease with a date of injury of October 13, 1994. As a result of the injury, he was temporarily totally disabled from January 4, 1996 through February 6, 1997. From January 4 to June 1, 1996 a period of 21 weeks and one day, the applicant is entitled to temporary total disability at the weekly rate of $310.07 (two-thirds of the conceded average weekly wage of $465.11), totaling $6,563.22.

"From June 1, 1996 to February 6, 1997, a period of 35 weeks and four days, the applicant was subject to a reverse offset for social security disability benefits received. Wis. Stat. § 102.44(5). Accordingly, he is entitled to temporary disability during this later period at a weekly rate of $147.27, totaling $5,252.63. The applicant's attorney is entitled to a fee at the weekly rate of $29.45 for this period, or $1,050.38, which may not be deducted from the award but rather is paid from the reverse social security offset savings.

"As a further result of the work injury, the applicant sustained permanent partial disability on a functional basis at 75 percent compared to permanent total disability. He is therefore entitled to 750 weeks of disability at the weekly rate of $158 per week (the statutory maximum for injuries in 1994), totaling $118,500. (1) As of October 13, 1998, only the first 87 weeks and four days of the permanent partial disability award, totaling $13,851.33, has accrued. The remaining 662 weeks and two days, totaling $104,648.67, remains unaccrued.

"However, the applicant received $6,320 during his temporary disability under a non-industrial policy. The payer of the disability under the policy is entitled to reimbursement from the applicant's award under Wis. Stat. § 102.30.

"The applicant approved an attorney fee under Wis. Stat. § 102.26. The future value of the fee in this case is $24,799.02. This is determined by adding $1,050.38 (the "nonnettable" fee on the part of the temporary disability award subject to the reverse social security offset) to $23,748.64 (the fee on the remainder of the award (2).) e o, However, as of October 13, 1998, the fee attributable to the final 662.333 weeks of permanent partial disability ($20,929.73) has not yet accrued. Advance payment of the unaccrued portion of the fee is subject to an interest credit of $7,085.63, which reduces the present value of the total fee to $17,713.39. The fee, together with legal costs of $140, shall be paid to the applicant's attorney within 30 days of the date of this decision.

"The amount immediately due the applicant is $16,388.27. This is determined by adding the awards for temporary disability ($6,563.22) and ($5,252.63), adding the accrued permanent partial disability ($13,851.33), subtracting the credit to the non- industrial insurer ($6,320), subtracting the accrued portion of the attorney fee exclusive of the nonnettable fee on the temporary disability subject to social security offset ($2,818.91), and subtracting legal costs ($140).

"The amount remaining to be paid to the applicant as it accrues beginning after October 13, 1998, is $83,718.93. This equals the unaccrued permanent partial disability ($104,648.67), less the future value of the attorney fee thereon ($20,929.73). This amount shall be paid to the applicant in monthly installments of $684.67, beginning on November 13, 1998.

"The respondent contends also that it has made a previous payment of permanent partial disability of four percent compared to the body as a whole for the work injury. Exhibit 4 indicates such a payment was made. However, while Drs. Rosenthal and Iorio both acknowledge that the applicant had previous permanent disability, neither expressly states whether his disability ratings include or are in addition to the pre-existing disability.

"How Dr. Rosenthal accounted for the pre-existing disability in reaching his permanent partial disability rating of 75 percent, and whether that accounting was appropriate, will decide the issue of the employer's claimed four percent credit for previous payments of permanent disability. The award in this case has been calculated without consideration of the previous payments; if the parties are unable to reach agreement on the issue of the previous payments, the employer may apply to the department for resolution of this issue."

The tenth paragraph of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.

The eleventh paragraph of the ALJ's Findings deleted and following substituted therefor:

"Because the applicant may need further treatment, may sustain additional disability, and may be entitled to additional compensation, this order is left interlocutory on all issues."

Delete the ALJ's Order and substitute the second, third, and fourth paragraphs of the commission's Interlocutory Order set forth below.

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

INTERLOCUTORY ORDER

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

Within 30 days from the date of this order, the employer shall pay all of the following:

1. To the applicant, John D. Burns, Sixteen thousand three hundred eighty-eight dollars and twenty-seven cents ($16,388.27) in disability compensation.

2. To the applicant's attorney, Paul F. X. Schwartz, the sum of Seventeen thousand seven hundred thirteen dollars and thirty-nine cents ($17,713.39) in fees and One hundred forty dollars ($140) in costs.

3. To the unknown payer on the non-industrial disability policy, Six thousand three hundred and twenty dollars ($6,320.00) as reimbursement under Wis. Stat. § 102.30(7) for benefits paid to the applicant.

4. To Wisconsin Pathologist for medical treatment expense Fifteen dollars ($15).

5. To Orthopedic Associates of Sauk Prairie for medical treatment expense Five thousand three hundred forty- seven dollars ($5,347).

6. To Turville Bay MRI for medical treatment expense Nine hundred fifty dollars ($950).

7. To Madison Radiologist for medical treatment expense Seven hundred seventy-nine dollars ($779).

8. To Sauk Prairie Memorial Hospital for medical treatment expense Seven thousand six hundred seventy-eight dollars and seventy cents ($7,678.70).

9. To Physicians Plus for medical treatment expense One hundred thirty-three dollars ($133).

10. To Dr. Greg Bakke for medical treatment expense One thousand two hundred seventeen dollars ($1,217).

11. To the applicant Four hundred forty-six dollars and sixty-five cents ($446.65) for mileage and prescription expense.

Beginning on November 13, 1998, and continuing on the thirteenth day of each month thereafter, the employer shall pay the applicant the amount of Six hundred eighty-four dollars and sixty-seven cents ($684.67) per month until the additional amount of Eighty-three thousand seven hundred eighteen dollars and ninety-three cents ($83,718.93) has been paid.

Jurisdiction is reserved for such further findings and awards as may be warranted consistent with this decision.

Dated and mailed: October 13, 1998
burns.wrr : 101 : 7 ND § 3.4 § 5.8

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The ALJ found a back injury caused by occupational disease from the series of work-related back injuries. He concluded that the date of injury was the applicant's last day of work before the disabling off-duty sneeze, December 29, 1995. He also found the applicant reached a plateau of healing on February 6, 1997, and was left with the 75 percent permanent partial disability rated by Dr. Rosenthal.

The employer appealed. In its brief, the employer challenged the ALJ's findings on the issues of the date of injury, the end of healing or "healing plateau" date, the reservation of jurisdiction, and a credit for a prior payment of permanent partial disability.

The commission discussed the date of injury and the credit for the prior payment of permanent partial disability in the material added by amendment to the ALJ's order. It also modified the ALJ's reservation of jurisdiction, though the commission by no means is certain the language the ALJ used could reasonably be construed to conflict with Wis. Stat. § 102.18(6).

Finally, the commission affirmed the ALJ's finding regarding the healing plateau date. The employer argued the end of healing occurred in September 1996, five months before the February 1997 date found by the ALJ. In support of the September 1996 date, the employer points to Dr. Rosenthal's notation in February 1997 that the applicant's condition was unchanged from his condition in September 1996.

However, if a treating doctor believes additional healing may occur, but sees in retrospect it did not, the employer remains liable for temporary disability through the later date. In other words, a healing period may not be determined retrospectively. See Neal & Danas, Workers Compensation Handbook, § 5.8 (4th ed. 1997) and cases cited therein. Here, it seems reasonable for Dr. Rosenthal to have believed more improvement was likely, and thus kept the applicant in a healing period until one year after surgery, given the complications of the applicant's surgery. IME Iorio certainly does not dispute that. The ALJ appropriately found a February 6, 1997 healing plateau date on this record.

NOTE: The court reporter's exhibit list from the March 26, 1997 hearing states that the ALJ received 15 exhibits from the respondent including Exhibit 14 (described as First Aid Records 12-15-65 through 9-26-96) and Exhibit 15 (described as First Aid Records 8-29-68 through 9-26-96). One day after the hearing, the respondent's attorney, Mr. McCormick, provided to the ALJ a packet of documents identified as Exhibit 15. However, the commission could not locate Exhibit 14, and requested a copy from Mr. McCormick.

Mr. McCormick responded by letter dated October 6, 1998, in which he forwarded copies of First Aid Records from August 29, 1968 through September 26, 1996. Mr. McCormick suggests that the court reporter's reference to earlier records dating back to December 15, 1965 may have been an erroneous reference to a December 15, 1969 date from the third page of the documents he submitted. Mr. McCormick also noted that the applicant did not begin to work for the employer until 1968.

To date, Mr. Schwartz, the applicant, has not objected to Mr. McCormick's letter or enclosed exhibits. Consequently, the commission accepts the documents submitted with Mr. McCormick's letter as Exhibit 14.

cc: ATTORNEY PAUL F X SCHWARTZ
GROVE LAW OFFICE

ATTORNEY KENNETH T MCCORMICK JR
BOARDMAN SUHR CURRY & FIELD

Appealed to Circuit Court.   Remanded for consideration of Compromise, January 7, 1999.

[ Search WC Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) There is no reverse social security offset under Wis. Stat.  § 102.44(5) on the PPD award.

(2)( Back ) The fee on the remainder of the award equals 20 percent of the sum of the first period of temporary disability ($6,563.22) plus the permanent partial disability award ($118,500) less the reimbursement for payment under the non-industrial policy ($6,320). $23,748.64 = 0.20 times ($6,563.22 plus $118,500 minus $6,320.)