Wis.LIRC WC Decision: Rothenberger - January 29, 1999 - ND � 3.4 - Occupational Disease ND � 3.42

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

KENNETH ROTHENBERGER, Applicant

MURRAY MANUFACTURING, Employer
C/O ARGONAUT INSURANCE COMPANY

ANDERSON BROTHERS & JOHNSON COMPANY, Employer

ARGONAUT INSURANCE COMPANY, Insurer

FIREMAN'S FUND INSURANCE COMPANY OF WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995051612

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, except that it makes the following modifications:

1. In the fifth (last) paragraph of the ALJ's Findings of Fact and Conclusions of Law, delete the sentence:

"Also all of the medical expense documented by exhibit G is the responsibility of Fireman's Fund Insurance Company in accordance with this `date of injury' determination just made."

and substitute

"Accordingly, Fireman's Fund Insurance Company is liable for all of the medical expense documented in exhibit G, except for $9,106.23 for treatment at the Wausau Hospital Center for the period from July 30 to August 7, 1989 which has not been proven to be related to the work injury."

2. In the first paragraph of the ALJ's Interlocutory Order, delete the clause "and all medical expense documented by Exhibit G" and substitute "and the medical expenses documented in Exhibit G, except Nine thousand one hundred six dollars and twenty-three cents ($9,106.23) for treatment at the Wausau Hospital Center for the period from July 30 to August 7, 1989."

ORDER

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

Dated and mailed: January 29, 1999
rothenk.wmd : 101 : 3 ND � 3.4 � 3.42

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, who was born in 1937, is a long term foundry worker. He has worked around sand and dust most of his entire occupational life, with employment at Allis Chalmers (1957-59), Marathon Electric (1959-64), Murray Manufacturing (1964-85), and at Anderson Bros./Johnson Co. (1987-89). (1 ) He stopped working for Anderson Bros. in July 1989 after an off-duty accident when he fell from the tree.

The medical experts agree that the applicant has silicosis, an irreversible pulmonary condition caused by exposure to sand and dust in foundries. There is no doubt that the applicant here has an occupational disease. The issue in this case is the date of injury, which in turn determines which employer and which insurer are liable.

Wis. Stat. � 102.01(2)(g) provides that the date of injury in cases of occupational disease is

"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 contributed to the disability."

The "date of disability" may be the first day of wage loss due to the occupational disease. General Casualty Co. v. LIRC, 165 Wis. 2d 174, 180 (Ct. App., 1991). The "wage loss" presumption applies even if the employer recompenses or allows the worker to make up the lost work time. Id. Of course, a date of disability may also be established even without wage loss due to the disease, though these cases usually involve situations where a worker has either stopped working because of retirement (2 ), is laid off (3 ), or has switched to employment which no longer contributes to the occupational disease (4 ).

However, the simple onset of symptoms which do not cause a worker to seek treatment or lose work time does not automatically establish a "date of disability" fixing liability for occupational disease. Instead, the question is "when did the occupational disease ripen into a disabling condition?" (5 ) In deciding this question, the courts look at "actual physical incapacity to work" rather than a medical or pathological disability which results in no wage loss. (6 )

One of the applicant's treating doctors, Jerome Callaway, M.D., opined the applicant's occupational disease became disabling in August 1989, and that work exposure to July 1989 caused his problem. See practitioner's report at exhibit B. Another treating doctor, David Tange, M.D., opined in a September 27, 1994 letter, that the applicant's silicosis arose from industrial exposure at Anderson Bros., where the applicant worked from 1987 to July 1989. Exhibit B, last two pages.

Fireman's (7 ) expert, Keith C. Meyer, M.D., opined the applicant's condition was caused by exposure at Marathon Electric and Murray Manufacturing. Dr. Meyer further opined that the applicant's condition then merely followed the normal course of progression and was not affected by additional exposure while the applicant was working at Anderson Bros. On this point, Dr. Meyer noted Dr. Tange's letter of September 29, 1989 in which Dr. Meyer says Dr. Tange attributes the applicant's condition to work as a chipper at a foundry from 1958 to 1985. (8 ) Dr. Meyer also noted the applicant's own statement that he already had trouble breathing in 1987 when he began work from Anderson Bros. Dr. Meyer also noted it takes at least five years to develop silicosis. Comparing the two years exposure at Anderson Bros. to the twenty years Murray Manufacturing and the four years at Marathon Electric, Dr. Meyer highly doubted exposure at Anderson Bros. contributed to the progression of the applicant's condition.

There are five possible dates of injury here: three based on "dates of disablity" from lost work time during employment and two dates based on the cessation of employment. The earliest is in August 1980 when the applicant underwent an x-ray prior to resuming work with Murray Manufacturing. Based on this x-ray, the applicant was kept off work for three days until a second doctor reviewed the x-ray and released the applicant to work. The second and third dates are October 1981 or September 1984 when x-rays done during work hours at the employer's request showed increased densities in applicant's lung. The fourth is August 1985 when the applicant stopped working at Murray Manufacturing. The fifth is July 1989 when the applicant stopped working at Anderson Bros.

The ALJ picked the last date. After reviewing the record, the commission agrees with the ALJ.

First, the record does not establish exactly what happened in August 1980. However, the applicant's unrebutted testimony is that he had no symptoms. To the extent he was kept off work, then, the time off work was not for any actual physical incapacity. Likewise, the applicant was not yet symptomatic at the time of the 1981 x-ray on work time. While the applicant had become symptomatic by the time of the 1984 x-ray, still his symptoms did not result in incapacity to work. In other words, he had the x-rays not to treat his condition, but because the employer wanted periodic x-rays. His condition had not yet ripened into a disabling occupational disease. On this point, the commission notes that the diagnosis of silicosis or siderosilicosis was apparently not made until 1989 despite the earlier x-rays.

Indeed, the applicant sustained no actual disability, in terms of lost work time or physical incapacity to work, from the silicosis until July or August 1989. It was only at that point that the work restrictions affecting his continued employment were imposed. Thus, the date of disability occurred after (or simultaneously with) the cessation of all employment which contributed to the silicosis. Under Wis. Stat. � 102.01(1)(g), then, the date of disability is the date of work for the last employer whose employment caused the disability. The question is who was that employer: Murray Manufacturing (last day of work in August 1985) or Anderson Bros. (last day of work in July 1989)?

Like the ALJ, the commission concludes that the liable employer is Anderson Bros. While it is clear that the employment at Murray Manufacturing also contributed to the applicant's condition, his uncontroverted testimony is that his condition improved while he was working as a logger in 1985-1987. When he returned to inside work at Anderson Bros. in 1987, his condition worsened. If the condition simply naturally progressed from his exposure at Murray Manufacturing which ended in 1985, one would expect a stable or worsening condition, not improvement, after he left Murray Manufacturing to work as a logger. Since the condition only began to get worse again when he started working at Anderson Bros., it is reasonable to conclude employment at Anderson Bros. contributed to the condition which became disabling in August 1989. (9 ) The commission therefore accepts the opinions of Drs. Callaway and Tange, and rejects IME Meyer's contrary opinion.

The remaining issues involve the amount of compensation. Neither Anderson Bros. nor Murray Manufacturing introduced expert vocational opinion to counter or rebut the applicant's expert on the extent of loss of earning capacity. However, noting that the applicant's vocational expert based his report on Dr. Tange's restrictions, Anderson Bros. asserts that Dr. Tange did not actually report "restrictions" as such but only estimates about what the applicant can and cannot do.

The commission cannot agree. Exhibit A is a practitioner's report from Dr. Tange. It contains the September 27, 1994 letter considered by the applicant's expert. In the letter, Dr. Tange clearly outlines permanent restrictions and denominates them as such. In short, because the commission finds Dr. Tange's restrictions most credible, the applicant has made a prima facie case of odd-lot unemployability, and must prevail under Balczewksi v. DILHR, 76 Wis. 2d 487 (1977).

Finally, the commission has considered the medical expenses. Anderson Bros. disputes charges for the hospitalizations following the fall from the tree in July 1989. The applicant concedes that the hospitalization from July 30 to August 7, 1989 was primarily to treat the injury from the fall from the tree. The applicant did receive some treatment for breathing problems then, both for a pulmonary contusion evidently from the fall and his pre-existing, chronic problem related to silicosis. See last few pages of Exhibit 3. However, because the commission is unable to tell which expenses are related to the occupational condition, it denies the payment of expenses for this period. The applicant states that the expense for this period equals $9,106.23; the commission's review of exhibit G supports that figure and has deducted that amount from the medical expense award.

However, the August 23 to September 4, and September 11 to September 20 hospitalizations were more clearly for respiratory problems associated with the siderosilicosis. See particularly exhibit A. The commission affirms the payment of those.

cc: ATTORNEY JACOB J AMENT
AMENT WULF & FROKJER SC

ATTORNEY JOHN A GRINER IV
HALLING & CAYO SC

ATTORNEY MICHAEL D STOTLER
BREN PRZYBECK & STOTLER

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Footnotes:

(1)( Back ) Between 1985 and 1987, the applicant worked for a logging company.

(2)( Back ) Kohler Co. v. DILHR, 42 Wis. 2d 396 (1969).

(3)( Back ) Wisconsin Granite Co. v. Industrial Co., 208 Wis. 270 (1932).

(4)( Back ) Green Bay Drop Forge v. Industrial Commission, 265 Wis. 18 (1953).

(5)( Back ) Kohler, supra, at 42 Wis. 2d 400.

(6)( Back ) Montello Granite Co. v. Industrial Commission, 278 N.W.2d 391, 399 (1938).

(7)( Back ) Firemen's insures Anderson Bros.

(8)( Back ) Dr. Tange's September 29, 1989, practitioner's report points only to "previous industrial exposure at the foundry" as the cause for the applicant's disability. Exhibit 2.

(9)( Back ) As the commission is aware, occupational exposure which only contributes to the progression of a disabling condition is considered to have "caused" the condition for WC purposes. The theory is that allocating liability based to the last employer will even out over time. Employer Mut. Liab. Ins. Co. v. McCormick, 195 Wis. 410 (1928).