STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MONNA SUE N PARKER, Applicant
LINCOLN LUTHERAN RACINE, Employer
CONNECTICUT INDEMNITY COMPANY, Insurer
WORKER'S COMPENSATION DECISION
Claim Nos. 1996064027, 1998013720
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 the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant was born in 1945. The employer is a nursing home. The applicant began working for the employer as a nursing assistant in 1991. The applicant is also a licensed cosmetologist who had previously worked in beauty shops. In August 1992, she began working about half time in the employer's beauty salon.
The applicant was exposed to a variety of chemical substances while working for the employer as a hairdresser. She developed dermatitis on her hand, and later respiratory or pulmonary symptoms. She eventually was taken off work in the beauty salon and now works full time as a certified nursing assistant at the same wage (or higher with periodic raises.)
The employer and the insurer (collectively, the respondent) concede that as a result of her exposure to chemicals at work the applicant sustained occupational injuries. Specifically, the employer concedes a compensable dermatitis-type injury with a September 1992 date of injury and a compensable pulmonary injury with an April 1994 date of injury.
Because the employer concedes an occupational injury, and because the applicant does not seek compensation for additional temporary disability, the only issue is the extent of permanent disability. In addition to the applicant's testimony about her residual problems, the record contains expert opinion on this point.
The applicant testified at the hearing that she still has problems with her hands, specifically cracking and bleeding, which requires her to treat with Vaseline on a nightly basis. However, these are home remedies; she has not treated with a medical doctor for her hand problem since 1992.
She also claims that she now is more susceptible to bronchitis and sinusitis than she was before her occupational exposure. She also complains of upper respiratory problems in shopping malls due to fragrances and scents. She personally can no longer use such products, and uses dermatologically safe make- up. The applicant continues to smoke tobacco cigarettes.
The applicant's medical expert is Jordan N. Fink, M.D. His diagnoses are: tobacco abuse, recurrent urticaria (1), sinusitis and bronchitis, and environmental allergy. He opined the applicant's hives and dermatitis were probably due to some work place chemical, while applicant's underlying allergic disease and tobacco-induced respiratory disease were probably irritated by irritant chemicals at work. His treatment recommendations were: stop working in the beauty salon, stop smoking, and take anti-allergen medication to deal with common allergens such as cat hair. The doctor also reported that, as the applicant's pulmonary functions were normal and she no longer had symptoms, she had reached her healing period.
When subsequently asked to rate permanent partial disability, Dr. Fink responded:
"A. [The applicant] has been sensitized to beauty chemicals. The sensitization is permanent and represents, in my opinion, a partial disability of 5%.
"B. [The applicant] has also had an irritative respiratory reaction which has abated. She had contact with numerous irritants and should such contact resume, the irritative reaction would recur. This constitutes a permanent partial disability of 7.5%.
"C. [The applicant] has underlying allergic respiratory disease and tobacco abuse. These factors account for another 15% of permanent partial disability."
Dr. Fink's report, at exhibit A, are from October 1996.
The employer submits the expert medical opinion of Stuart Levy, M.D. According to Dr. Levy, a pulmonary function study done in July 1997 showed spirometry, lung volume and diffusion capacity at normal limits. However, the methacholine challenge study was positive, indicating the presence of hyperreactive airways.
Dr. Levy reported that the applicant's pulmonary function studies were consistent with hyperreactive airways and hypertension. He noted the urticaria related to use of materials as a cosmetologist; he did not note the presence or absence of hives or redness on the applicant's hands during examination.
Dr. Levy went on to opine that the applicant's hyperreactive airways condition from the methacholine test was evidently caused by tobacco abuse rather than workplace exposure. Workplace exposure was more likely to exacerbate hyperreactive airways, rather than cause them to be hyperreactive.
He recommended she avoid certain perfumes, and recommended she not use materials used in giving "permanents." He opined she had reached a healing plateau, and rated a five percent permanent partial disability which was for the smoking-related hyperreactive airways, which was not work-related.
The question in this case is whether the applicant actually has any permanent or residual symptoms, disability or impairment from the chemical exposure at work. In addressing this question, the commission notes that actual residual impairment in function is something different than "sensitization" or "sensitivity" to certain chemicals.
"Sensitivity" means a person is sensitive to a certain chemical. A person with asthma, for example, may be sensitive to cigarette smoke and cannot work in a smoky environment. Such a worker's underlying inability to work is not compensable, as work did not cause the problem, but rather the problem or sensitivity merely becomes apparent at work (2).
Permanent functional impairment, on the other hand, is usually understood to be a permanent impairment in the use of a body part. To be compensable under the workers compensation law, the impairment must be causally related to work, and must have some effect on a worker's functional capacity or ability to work. If the applicant's exposure to the hair dressing chemicals caused permanent lesions on the applicant's hands, or respiratory or pulmonary problems that are now always present, permanent partial disability could be rated on the basis of functional impairment.
"Sensitization" is a kind of middle ground. Sensitization occurs when a worker previously was not symptomatic from exposure to the chemical, but prolonged exposure to the chemical at work has made the person sensitive, so that he or she begins experiencing symptoms (a rash, respiratory problems, etc.) which were not present before but which clear up when the person is no longer exposed to the chemical. Sensitization differs from "sensitivity," then, because the work exposure actually caused the person to be sensitive to a chemical he was not previously sensitive to. Sensitization differs from the standard case of functional impairment, however, because the symptoms are not "permanent" but clear when the applicant is no longer exposed to the offending chemicals.
How does one rate permanent disability in a "sensitization" case? Some degree of permanent residual limitation on a worker's ability to function is generally a prerequisite to a permanent partial disability award. See, for example, Butler v. ILHR Department, 57 Wis. 2d 190, 195-197 (1973); Neal & Danas, Worker's Compensation Handbook, sec. 5.15 (3d ed. 1990); and How to Evaluate Disability under Wisconsin's Worker's Compensation Law, page 2. However, the law provides an exception to the rule that an applicant must have some permanent, ratable functional impairment as a prerequisite for a permanent disability award: the so-called "Wagner-Butler doctrine." See Wagner v. Industrial Commission, 273 Wis. 2d 553 (1956) and Butler, supra.
Under the Wagner-Butler doctrine, a worker who suffers a "permanent sensitization" to certain chemical substances because of work exposure may be eligible for permanent partial disability based on wage loss, even though the problem completely clears up when he is away from work. Although the worker has no ratable permanent disability on a functional basis, the fact he can no longer perform his work has a very real permanent effect on earning capacity.
The court fashioned the Wagner-Butler doctrine based largely on a concern that otherwise workers with contact dermatitis (a permanent condition that does not permit a permanent functional disability rating) would be left without a remedy. Butler, at 57 Wis. 2d 195. However, the court makes it clear that the doctrine applies only to those cases where the partially disabling occupational disease cannot be measured objectively. Butler, at 57 Wis. 2d 196. Indeed, in Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 406 (1964), the court specifically rejected a claim that the Wagner-Butler doctrine applied to a case of silicosis and emphysema. The Kohler court noted that a physician could rate functional impairment to pulmonary impairment as a result of the silicosis, so the condition could be measured objectively.
The supreme court has also provided some guidelines on how to calculate an award for permanent disability in Wagner-Butler cases. In Wagner, the court wrote:
"The measure of disability in terms of percentage is the percentage of wage loss he has sustained as a result of being unable to do work in a machine shop or industrial plant where he was earning $1.89 per hour. On this ... point we quote 2 Larson, Law of Workmen's Compensation, p.1, sec. 57.00 as follows:
`Compensable disability is inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant's qualifications and training. The degree of impairment depends on impairment of earning capacity, which in turn is presumptively determined by comparing pre-injury earnings with post-injury earning ability; the presumption may, however, be rebutted by showing that post-injury earnings do not accurately reflect claimant's true earning power.'"
Wagner v. Industrial Commission, 273 Wis. 553, 565-66 (1956). Similarly, the court in Butler directed the commission to:
"evaluate the claimant's disability in terms of actual wage loss, based on the extent of impairment of earning capacity."
Butler, at 57 Wis. 2d 197.
The first question, then, is whether this a Wagner-Butler case or a standard functional impairment case. If this is a Wagner-Butler case, functional permanent disability may not be awarded. The applicant, for her part, emphasizes the permanent aspects of the sensitization. She points out that the medical experts rated permanent functional disability.
However, the commission concludes the applicant has no permanent functional impairment, at least from the respiratory or pulmonary injury. Treating doctor Fink reports normal tests and no symptoms. While he rated 7.5 percent permanent partial disability, he specifically opined the irritative respiratory problem abated, but could resume if she comes in contact with hairdressing chemicals. Independent medical examiner Levy reported hyperreactive airways, but attributed this to an underlying condition caused by smoking. It is significant that Dr. Fink, too, refers to an underlying allergic respiratory disease and tobacco abuse.
On this basis, the commission believes that the applicant's current, residual respiratory/pulmonary functional limitations are attributable to her underlying condition. The commission concludes that the chemical exposure at work caused a sensitization which affects the airways and lungs only when the applicant is exposed to hair dressing chemicals. The fact that Dr. Fink may have tried to rate permanent disability for this sensitization does not compel the conclusion that permanent partial disability on a functional basis must be awarded. Butler, 57 Wis. 2d 197. While Dr. Fink rates permanent disability from the chemical exposure, he is doing so based on the fact the applicant is sensitized and that symptoms will recur if she is re-exposed. Dr. Fink's rating is not based on an objective medical standard, as was the case in Kohler, supra. In sum, the work exposure to hairdressing chemicals sensitized the applicant's respiratory or pulmonary system to those chemicals, but did not cause permanent functional impairment that may be measured objectively.
The next question is the applicant's urticaria or dermatological problems. Dr. Fink does not give any rating for disability at the hands. Rather, he gives five percent for "sensitization." This implies that the applicant currently has no urticaria or other problem on her hands. Certainly, there is no mention of any in the medical notes. Nonetheless, the applicant expressed lay complaints about cracking and bleeding, requiring the use of Vaseline at night.
Based on this record, the commission concludes that permanent disability, if any, for the pulmonary aspect of this case must be calculated under the Wagner-Butler cases. Because the commission believes the applicant should be afforded the opportunity to establish that her "post-injury earnings do not accurately reflect [her] true earning capacity," Wagner, at 273 Wis. 2d 566, the commission remands this case for further hearing on that issue. See also Wright v. LIRC, 210 Wis. 2d 289 (Ct. App., 1997). On remand, the parties may also submit expert medical evidence on the issue of whether the applicant has actual functional impairment to her hands, or whether that condition, too, must be compensated under the Wagner-Butler doctrine.
As noted above, compensation for reasonable and necessary medical expense to cure and relieve the effects of the work injury is not in dispute before the commission. Accordingly, the applicant is entitled to reimbursement for her prescription expense in amount of $120.15.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
ORDER
The findings and order of the administrative law judge are set aside, and the foregoing substituted therefor.
Within 30 days from the date of this decision, the employer and its insurer shall pay the applicant One hundred twenty dollars and fifteen cents ($120.15) in out-of-pocket medical expense.
This case is remanded to the Department of Workforce Development, Division of Worker's Compensation for further hearing and a decision on the issues set out in the body of this decision.
Jurisdiction is reserved.
Dated and mailed: March 5, 1999
parkmo.wrr : 101 : 3 ND § 5.32
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. The ALJ informed the commission that the applicant seemed straightforward, and thought she might have had continuing problems with her hands. The ALJ also stated he believed her pulmonary problems were continuing.
The commission does not dispute that the applicant has continuing respiratory or pulmonary problems. However, as explained above, the commission concludes from the reports of the medical experts that any functional impairment from continuing pulmonary problems is due to the applicant's underlying condition, and not the effects of exposure to hairdressing chemicals. While the applicant's exposure to hairdressing chemicals has sensitized her to those chemicals, this sensitization must be compensated under the Wagner-Butler holdings.
cc: ATTORNEY ROLAND C CAFARO
QUARTARO CASTAGNA EVEN & CAFARO
ATTORNEY CHARLES SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
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Footnotes:
(1)( Back ) Urticaria are hives or weals that are redder or lighter than the surrounding skin, and often itch.
(2)( Back ) Of course, if a person sensitive to cigarette smoke does work in a smoky environment, and the exposure disables him temporarily or worsens his condition permanently, the temporary disability and permanent effects of the worsened disability may be compensable.