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

MARSHA A MUSKATEVC, Applicant

ST JOSEPHS HOSPITAL, Employer

ST JOSEPHS HOSPITAL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95016513

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 21, 1997. Briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to a conceded occupational injury occurring on March 24, 1996. The commission ordered an independent medical examination pursuant to Wis. Stat. § 102.17 (1)(g), and in conjunction with that examination, additional medical and vocational opinions have been submitted by the parties.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is February 19, 1953, began her employment in 1974 as a registered nurse for the employer, a hospital. Beginning in the early 1990's she developed symptoms of itchy skin, shortness of breath, and wheezing. Her symptoms worsened and she began treatment with an allergist, Dr. Tad Johnson. Dr. Johnson diagnosed latex allergy, allergic rhinitis and asthma. He began treatment.

On April 3, 1996, the applicant began treatment with Dr. Kevin Kelley, an allergist/immunologist at the Medical College of Wisconsin. He also diagnosed latex allergy and asthma, both attributable to her work exposure with the employer. He provided treatment and completed a WC-16-B in which he found the applicant 100 percent permanently disabled in any environment in which latex exposure might occur, and 50 percent permanently disabled due to persistent asthma. In testimony, Dr. Kelley opined that the applicant's latex allergy and asthma have not plateaued, but have worsened. He further opined that her mathacholine challenge test was significantly abnormal, that multiple medications are necessary to keep her asthma under control, that her latex allergy and asthma have made her system hypersensitive to numerous irritants in the general environment, and that she is on the extreme end of the spectrum of latex allergy.

Dr. Kelley treated the applicant for an allergic reaction on October 18, 1996, which he believed was anaphylactic shock. He administered Epinephrine, intravenous fluids, antihistamines and cortical steroids. The applicant was also treated in the emergency room on May 12, 1996, by Dr. David Moss, for symptoms that came on while she was at home involving respiratory problems, headache, flushed feeling, weakness, diaphoresis, increased heart rate, and feeling of near syncope. Dr. Moss opined that the symptoms could be due to latex allergy, but also could be due to hyperthyroidism, panic disorder, or other causes.

At the employer's request, Dr. Robert Kriz examined the applicant on May 14, 1996. He also diagnosed latex allergy, asthma and allergic rhinitis. He opined that the work exposure caused the latex allergy, and aggravated preexisting asthma and allergic rhinitis beyond normal progression. Dr. Kriz opined that the applicant should have reached a healing plateau approximately 10 days after she left work on March 24, 1996, and he assessed three percent permanent partial disability to the latex allergy and the portion of her asthma "provoked" by her latex allergy. He further opined that the applicant could work in a hospital environment provided she could avoid contact with latex items. Dr. Kriz opined that if the applicant is no longer exposed to high levels of latex he would not expect further progression of latex sensitivity. However, he believed her asthma might progress due to possible development of other allergies independent of any work at the hospital. On February 20, 1997, Dr. Kriz opined that the incident of October 18, 1996, was probably not due to any obvious allergic provocation. He believed it was a consequence of hyperventilation, overstimulation from drugs such as Terbutaline and Epinephrine, preexisting anemia, and anxiety/agitation. In testimony, Dr. Kriz also opined that the emergency room incident of May 12, 1996, was probably an anxiety attack. He further opined that the applicant's latex exposure had not progressed since her departure from work exposure.

The applicant's vocational expert, Martha Johnson, detailed Dr. Kelley's opinion and restrictions against working in numerous environments (applicant's Exhibit A). Ms. Johnson opined that given the applicant's severe reaction to a wide variety of environments, and the ubiquitous nature of latex, a suitable work environment would be very difficult to find. She placed the applicant in the odd lot category of employment and therefore found permanent and total disability.

The employer's vocational expert, Donald Modder, opined that the applicant possesses a number of transferable skills and could work as an industrial nurse, discharge or follow-up nurse, utilization reviewer, intake coordinator, quality assurance reviewer, telephonic nurse authorizer, telephonic case manager, or home care nurse. He assessed loss of earning at 20 - 25 percent, assuming acceptance of Dr. Kriz' opinion.

At the employer's request, M. Timothy Lynch, Ph.D., a licensed clinical psychologist, evaluated the applicant on October 15, 1997. He also administered psychological testing in the form of the MMPI-II. Based on the clinical interview, medical records, and MMPI testing Dr. Lynch diagnosed a somatoform disorder consistent with hyperventilation and anxiety. Dr. Lynch did not believe the applicant was malingering, but that her psychological makeup includes intense fear of allergic reaction which in turn has precipitated incapacitating psychological reaction such has hyperventilation, panic, and anxiety. Dr. Lynch recommended psychological treatment and indicated that the applicant would be more employable with such treatment.

At the commission's direction, an independent medical examination was performed by Dr. James Martin, an occupational and internal medicine specialist. The exam took place on October 2, 1998, and in Dr. Martins's report of October 14, 1998, he opined that the applicant has clearly documented evidence of allergy to latex related to her work activities, as well as symptoms of asthma and rhinitis aggravated beyond normal progression by latex exposure. Dr. Martin further opined that the applicant suffers from sensitivity to non-latex allergens and that such sensitivity is not related to any work exposure. Dr. Martin rather ambiguously stated that any increased sensitivity to non-specific irritants may be partially attributable to the applicant's latex allergy, but latex allergy could not be concluded to be more likely than not the cause of her increased sensitivity to non- specific irritants. Dr. Martin also noted that Dr. Lynch's evaluation raised the possibility of symptom magnification.

Dr. Martin concluded that the applicant had sustained a 20 percent permanent functional disability. He set work restrictions requiring a latex-free environment where there was no risk of direct contact with latex, or of inhaling latex aeroallergens, either from powdered gloves or particles released from any product or process containing latex. Dr. Martin noted that latex is found in a wide variety of products and processes. He opined that additional restrictions for exposure to non-work-related allergens and irritants may be appropriate, but ". . . cannot be directly attributed to the aggravation of her allergy and rhinitis symptoms when exposed to latex."

Dr. Kelley responded to Dr. Martin's opinions in a letter dated January 15, 1999. He opined that Dr. Martin's 20 percent disability rating only took into account the applicant's asthma, not including the hyperreactivity of her airways to allergens other than latex. Dr. Kelley opined that this hyperreactivity was a byproduct of the applicant's work-induced latex allergy and asthma, and that Dr. Martin's disability rating fails to account for this fact. Dr. Kelley also opined that Dr. Martin underestimated the extent of disability attributable to the applicant's latex allergy, given the ubiquitous presence of latex in work environments. Dr. Kelley opined that the applicant's permanent functional disability was 50 percent at a minimum, with 100 percent disability for any environment containing latex.

On November 28, 1998, the applicant was self-referred for a clinic evaluation by William Lotak, Psy.D., a clinical psychologist. Dr. Lotak also administered the MMPI-II, as well as the Million Clinical Multiaxial Inventory III (MCMI-III). Dr. Lotak noted that the applicant had an elevated hysteria score on the MMPI-II, as well as an elevated histrionic score on the MCMI-III. However, he opined that an extremely large number of women showed elevated scores in these areas when they were coping with a genuine medical problem such as the one the applicant has. Given this fact, Dr. Lotak opined that the applicant's relatively high hysteria score expressed a degree of concern regarding her medical condition rather than a true measure of the intent of the hysteria scale. He further opined that the applicant did not display an overly high degree of histrionic features, that her anxiety was a reaction to her medical problems and that she attempts to reduce her anxiety by problem solving related to management of her medical risks. Finally, he opined that the applicant's appropriate anxiety response did not represent a somatoform disorder and that he did not see evidence of symptom magnification.

Dr. Lynch responded to Dr. Lotak's opinion in a letter dated January 29, 1999. He disputed Dr. Lotak's opinion and reiterated his diagnosis of a somatoform disorder, noting that the applicant had been diagnosed as having anxiety and panic in an emergency room visit, and opining that the applicant was obsessed with her allergic symptoms. Dr. Lynch opined that the applicant, who has been an articulate and thorough advocate of her claim, would benefit psychologically from gainful employment.

Donald Modder submitted an updated vocational report in response to Dr. Martin's opinion, assessing loss of earning capacity at 20 to 25 percent. Martha Johnson also submitted an updated vocational report, taking into account Dr. Martin's report and Dr. Kelley's reply. She opined that based on Dr. Martin's or Dr. Kriz's restrictions the applicant would sustain 25 to 30 percent loss of earning capacity. Based on the assumption that the applicant could only tolerate home employment, Ms. Johnson opined that loss of earning capacity should be assessed at 55 to 60 percent.

It is medically undisputed that the applicant's employment with the employer caused latex allergy, and at a minimum aggravated beyond normal progression a preexisting asthma and rhinitis. As noted above, the medical opinions differ with regard to the extent of disability caused by the compensable conditions. The commission finds Dr. Lynch's opinion credible to the extent that it identifies a psychological component (somatoform disorder) in the applicant's symptom presentation. There is credible evidence of several instances of excessive anxiety and panic complaints, as opposed to organic symptomatology. It is also credible, as opined by Dr. Lynch, that the applicant has become somewhat obsessed with her medical condition, even to the point of drawing her own conclusion that she is wholly incapable of finding any employment compatible with her allergies and asthma. Even Dr. Kelley limits his opinion of 100 percent functional disability to environments where latex or latex aeroallergens are present, and while this restriction severely limits the applicant's employment opportunities, it is not credible that it leaves the applicant able to perform only those services which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.

While the commission finds that Dr. Kelley underestimated the psychological component of the applicant's disability, it also finds that Dr. Kriz underestimated the effect of the aggravation beyond normal progression of the applicant's asthma and rhinitis, including the airway hyperreactivity described by Dr. Kelley. Dr. Martin gave a less-than-definitive opinion concerning the work relatedness of the applicant's asthmatic and non-specific irritant allergies, but the credible evidence from Dr. Kelley's treatment indicates that the non-latex allergies and hyperreactivity are real and do affect the applicant's ability to function in a large number of normal working environments. At the same time, the commission finds it credible that the applicant's somatoform disorder crosses over into consideration of the extent of disability which can be attributed to her non-latex allergies.

After careful consideration of all the evidence, the commission finds that the applicant is unable to function in any environment containing latex or latex aeroallergens. The commission further finds that while all of her symptomatology is affected by her somatoform disorder, her ability to function in many environments is severely limited due to her work-related asthmatic allergies and hyperreactive airways. Given these findings, the commission further finds that a 30 percent functional disability rating most accurately reflects the degree of overall disability the applicant sustained as a result of her occupational injuries. Dr. Kelley fixed his permanency ratings on September 6, 1996, and the commission finds this to be a credible date for fixing the applicant's healing plateau. Based on the applicant's emergency room visit of October 18, 1996, Dr. Kelley opined in November 1996 that a healing plateau had not been reached. But the commission accepts the medical opinion of Dr. Kriz that this episode did not involve anaphylaxis and did not initiate a renewed period of temporary disability.

The applicant received her registered nurse diploma from Columbia Hospital School of Nursing in 1974. In 1992 she enrolled in a B.S.N. program and had achieved the status of a junior when last attending classes in November 1995. She began her employment with the employer in 1974 as a registered nurse in Labor and Delivery. For a period of approximately six months in 1991, she worked for a health care service as a perinatal nurse clinician, before returning to the employer. In 1995, she taught childbirth at a community hospital. She also possesses basic clerical and computer skills. She has not applied for assistance from the Department of Vocational Rehabilitation, and she has not sought any new employment, again based on her determination that no work could be found which would be compatible with her health problems. She was earning $20.84 per hour when last employed by the employer in March of 1996, not including any shift, weekend, or other differential.

The commission finds that the medical opinions do not lead to the credible inference that the applicant is totally functionally disabled, except with regard to environments containing latex. Ms. Johnson's opinion of permanent total disability was based on complete acceptance of Dr. Kelley's medical opinion, and on the assumption that virtually no work environment could be found to be compatible with the applicant's medical condition. The commission finds that in actuality the applicant's medical condition is between the extremes described by the physicians, and that no prima facie case for permanent total disability has been demonstrated. The commission further finds that considering all the relevant vocational factors, and accepting the applicant's inability to tolerate exposure to latex or latex aeroallergens, as well as her work-related, non-latex allergies and hyperreactivity, it is credible that she could find employment working out of her home in occupations such as medical transcriptionist, home health scheduler, or telemarketer. It is also credible that should the applicant make the effort, her education, experience, and talents should allow her to find employment away from the home in nursing or related fields in environments free of latex. Of course, the number of employment opportunities available to her has been severely reduced by her functional limitations. The commission therefore finds that the applicant has sustained a 55 percent loss of earning capacity as a result of her occupational injuries.

The applicant is entitled to additional temporary total disability for the period between September 2, 1996 and September 6, 1996 (both dates inclusive), a period of five days, at the applicable rate of $494 per week, for a total of $411.67.

The permanent partial disability award is for 550 weeks of compensation at the applicable rate of $169 per week, with accrual beginning on September 7, 1996. Department records indicate respondents previously conceded and paid $5070 for permanent partial disability, which would be subtracted from the award. Applicant's attorney is entitled to a 20 percent fee against 250 weeks of the permanent partial disability award, because he represented the applicant from the filing of her application through the last hearing date of November 17, 1997. That hearing resulted in the administrative law judge's award of 250 weeks of permanent partial disability, affirmed to that extent by the commission. The applicant filed her petition for commission review pro se, and therefore her attorney is not entitled to any fee against the additional 300 weeks of compensation secured in this order.

It is also evident from the record that the applicant began receiving social security disability income payments effective September 1996, which invokes the offset provisions of Wis. Stat. § 102.44 (5). The record does not contain sufficient information to calculate this offset, and therefore the commission will remand the matter to the Worker's Compensation Division for immediate calculation of the accrued and unaccrued permanent partial disability award due the applicant subject to the social security disability offset.

The applicant is also entitled to reimbursement for $105 in reasonably required medical expense, and $15.60 for medical mileage reimbursement.

Dr. Kelley's opinion that the applicant may require additional medical treatment, and that she may sustain additional disability, is accepted as credible. Therefore, the order will be left interlocutory. The applicant's petition indicates that there may be unresolved issues concerning medical expenses accrued between the last date of hearing, November 17, 1997, and the date of this decision. If that is true, the applicant should attempt to resolve such issues with the insurer, but if she is unable to do this, she may file a new application for hearing regarding those issues, under the interlocutory authority of this order.

NOW, THEREFORE, this

INTERLOCUTORY REMAND ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer or its insurer shall pay to the applicant as compensation for addition temporary total disability, the sum of Four hundred eleven dollars and sixty-seven cents ($411.67); and to the applicant as reimbursement for medical mileage expense the total amount of One hundred fifteen dollars and sixty cents ($115.60).

The matter is remanded to the Worker's Compensation Division for immediate calculation of the amount of permanent partial disability due the applicant, subject to the social security disability offset, as well as attorney fees, pursuant to the above findings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: February 24, 1999
muskama.wrr : 185 : 3 ND § 3.4  ND § 3.42  ND § 5.31

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission learned in consultation with the administrative law judge that it had no disagreements with his credibility impressions of the applicant or of any of the other witnesses at either of the hearings held in this matter. The commission had the advantage of receiving additional written opinions from Dr. Martin, Dr. Kelley, Dr. Lotak, Dr. Lynch, and the vocational experts, which assisted it in analyzing the extent of permanent functional disability and loss of earning capacity.

cc: ATTORNEY ROBERT H ZILSKE
ZILSKE LAW FIRM SC

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