P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)






Claim No. 91070786

Simplicity Manufacturing, and Fire and Casualty Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 24, 1994. On September 13, 1994, the commission issued a decision affirming the administrative law judge's Findings and Interlocutory Order, and appeal was taken to Waukesha County Circuit Court. On August 30, 1995, the Honorable Robert G. Mawdsley issued a decision reversing the commission's decision. Appeal was taken to the Court of Appeals, District II, and on July 10, 1996, the court modified and affirmed the Circuit Court decision, remanding the matter to the commission to determine whether the applicant recovered from his 1984 injury to the extent necessary to conclude that a new injury occurred in 1991.

In accordance with the court's remand order, the commission has again carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:


The administrative law judge's FINDINGS OF FACT, through the eighteenth line of page five of his decision, are affirmed and reiterated as if set forth herein.

The remainder of the administrative law judge's Findings and Interlocutory Order are deleted and the commission's Findings and Interlocutory Order set forth below are substituted therefor.

In Zurich General Accident and Liability Company v. Industrial Commission, 203 Wis. 135, 233 N.W. 772 (1930), the employe worked in a chipping room where he was exposed to heavy concentrations of dust. He became ill and unable to work in January 1920, coughing and expectorating black material. His physician diagnosed chronic bronchitis and he did not resume his employment until December 1921. He experienced another period of disability from April to September of 1922, and at that time a physician advised him that his condition was due to his occupation. In August 1923, he transferred to an outdoor job and worked until October 1927, when he became permanently and totally disabled. Based on the evidence, the commission found that the employe sustained occupational pneumonoconiosis as of the job transfer date in August 1923, and that the outdoor work he subsequently performed for the employer was not a contributing factor to his occupational disease. Therefore, the insurer on the risk in 1923 was found liable, rather than a second insurer who came on the risk in 1926. In responding to an argument that proper notice of injury had not been given to the employer, the court first noted that the evidence was not clear whether the employe's 1920-21 illness had been solely due to his occupational exposure. Id. at 143. However, the court reasoned that because the employe was able to return to work between 1921 and 1923, the commission's treatment of the 1920-21 illness as an acute attack from which the employe recovered, and its treatment of the 1921- 23 work exposure as having contributed to the occupational disease, could not be disturbed. Id. at 143-44. It was in the context of discussing the possibility that an individual could sustain partial disability from an occupational disease, recover by reaching the completion of the disease process or a permanent plateau in it, and then sustain new disability from new occupational exposure that the court stated:

"Upon a full reconsideration of the entire matter, it is considered that it should be held that the "time of accident" within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. If the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, then it will be necessary for the commission to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by a subsequent exposure. If it finds that the disability is due to a new onset, the employer and the carrier on the risk at the time the total disability manifests itself shall be liable accordingly. If, however, there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employe is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account." Id. at 147.

The commission concludes that the meaning of the term "recovery" in occupational disease cases is intertwined with the factual circumstances to which it is applied. An individual may "recover" in an occupational disease process by reaching a healing plateau and returning to work after sustaining one of a series of traumatic injuries, or after sustaining a period of disability due to work exposure. In Zurich, the employe recovered after the latter. In such cases, until the occupational disease process has reached completion there is no occupational disease date of injury, and the acute injuries and recoveries merely represent contributory elements in the occupational disease process. Based on the particular facts and circumstances of the applicant's case, the commission finds that his acute injuries, disabilities, and periods of recovery prior to November 6, 1991, were contributory elements in his occupational back disease process. His occupational back disease process did not reach completion until November 6, 1991.

In other cases, an occupational disease process may reach completion and liability for compensation become fixed. However, subsequent work exposure may change the nature of the occupational disease or accelerate it. Such change or acceleration would constitute a new occupational disease, and one could call the period between the first and second occupational diseases a "recovery" period. The commission finds that this is not what happened to the applicant; rather, he sustained only one occupational disease in a process which began in 1979 and ended on November 6, 1991. The applicant sustained an industrial back injury on January 15, 1979, which resulted in a laminectomy at L4-5 on April 30, 1980. He recovered and returned to his regular job duties, without restriction, until he sustained another acute work injury to his back on September 14, 1984. As a result of the 1984 injury the applicant was off work for approximately two weeks, but then returned to his regular job as a punch press operator. He continued to experience back and left leg symptoms, and pursuant to a light-duty restriction from Dr. Schneider, he requested assistance from co-workers when he needed it. The applicant experienced at least two other periods of acute exacerbation of his back problem, one in 1986 and one in 1989, and each time he missed only a short period of work. He was off work due to elbow surgery in 1991, but returned on September 18, 1991. He was then assigned different work duties which involved painting and washing machines as well as operating a spline roller machine.

The painting and washing involved bending, crawling, and twisting which bothered the applicant's back. In addition, the operation of the spline roller involved repetitive twisting which aggravated his back: ". . . to the point where I decided to have the surgery, you know. I couldn't take the pain no more."

The applicant also credibly testified that aside from the period right after the 1984 injury, he had not experienced back pain at the level he was experiencing when he stopped working on November 6, 1991. On May 5, 1992, Dr. Stoll performed a repeat L4-5 laminectomy and fusion.

The administrative law judge accurately summarized the relevant medical opinions in his decision issued on March 24, 1994, and the commission has adopted that summary. It is inferred from the evidence that the applicant did "recover" from his 1984 work injury, in the very real sense that his physical condition plateaued and he was able to return to his regular work until November 6, 1991. He did experience minimal periods of temporary exacerbation and disability between 1984 and 1991, but as Dr. Schneider indicated in a letter dated March 24, 1986, he returned to his "pre-reaccerbation (sic) plateau."

An occupational disease is an injury which is acquired as the result of working in an industry over an extended period of time, and this includes the cumulative effect of repeated, acute injuries sustained over a period of time. Shelby Mutual Insurance Co v. DILHR, 109 Wis. 2d 655, 657-58, 327 N.W.2d 178 (Ct. App. 1982). The credible inference from Dr. Stoll's medical opinion is that the applicant's occupational back disease process began with his disc herniation in 1979, was furthered by subsequent work exposure including the acute injury of 1984, and reached completion after being contributed to by the strenuous work exposure between September 18 and November 6, 1991. The applicant recovered from each of the acute injuries and periods of work exposure by reaching a healing plateau and returning to work, until the final exposure in 1991. That exposure, while short in duration, changed the nature of the applicant's degenerative back condition, caused him to stop working, and caused him to undergo surgery. Dr. Stoll's medical opinion recognized these facts, noting that the 1991 work exposure altered the occupational disease process "above and beyond" what it had been, and left the applicant in a physically worse condition.

The date of injury for the applicant's occupational back disease is the last day of work in the last employment which contributed to the disease, November 6, 1991. Earlier dates of disability, such as in 1984, were not dates in which the completed occupational disease process manifested itself. Accordingly, as the insurer on the risk on November 6, 1991, Fire and Casualty Insurance Company is liable for all disability and medical expense attributable to the occupational back disease.

The applicant is currently 54 years old. He dropped out of high school but completed his GED in 1970. Most of his vocational life has been spent as a punch press operator, although he worked briefly in construction. He was earning $13.50 per hour when injured. He is limited to no more than 24 pounds occasional lifting or carrying, and can only occasionally bend, climb, push, or pull. He took disability retirement from the employer and is receiving Social Security Disability Income. He continues to experience back and leg symptoms. The applicant's vocational expert, Maude Prall, assessed loss of earning capacity at 65 to 75 percent; Associated Indemnity's vocational expert, Martha Johnson, assessed it at 45 to 55 percent; and Fire and Casualty's vocational expert, Leanne Panizich, assessed it at 55-60 percent. Considering these reports and all the relevant factors, the commission finds that the applicant sustained a 60 percent loss of earning capacity.

The applicant is therefore entitled to 600 weeks of permanent partial disability, less the previous payments of 200 weeks. The total due is 400 weeks of compensation at the applicable rate of $137 per week, for a total of $54,800. As of December 1,1996, $27,445.67 will have accrued. A prior overpayment of temporary total disability in the amount of $10,228.57 will be offset against the accrued compensation. In addition, applicant's attorney is entitled to a 20 percent fee less an interest credit of $675.03, for a present value attorney fee due in the amount of $8,239.26. Costs of $968.38 are also due applicant's attorney. The net amount of accrued compensation due the applicant is $12,805.30. Unaccrued compensation, in the total amount of $21,883.47, will be payable to the applicant in monthly installments of $593.67, beginning January 1, 1997.



Within thirty days from this date, Fire and Casualty Insurance Company of Connecticut shall pay to the applicant accrued compensation in the amount Twelve thousand eight hundred five dollars and thirty cents ($12,805.30); and to applicant's attorney, Michael Gillick, fees in the amount of Eight thousand two hundred thirty-nine dollars and twenty-six cents ($8,239.26), and costs in the amount of Nine hundred sixty-eight dollars and thirty-eight cents ($968.38).

Beginning January 1, 1997, Fire and Casualty Insurance Company of Connecticut shall make payment to the applicant in the monthly amount of Five hundred ninety-three dollars and sixty- seven cents ($593.67), until the unaccrued compensation in the amount of Twenty-one thousand eight hundred eighty-three dollars and forty-seven cents ($21,883.47) has been paid.

Dated and mailed November 25, 1996
bruenroe . wmd  : 185 : 7  ND 3.4

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner





Appealed to Circuit Court.  Affirmed August 15, 1997.

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