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


ROBERT LARSON, Applicant

STEELWIND INDUSTRIES, Employer

SYMET INC, Employer

UNITED WISCONSIN, Insurer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997053715


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.

ORDER

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

Dated and mailed September 24, 1999
larson.wsd : 101 : 5 ND § 3.42

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant has carpal tunnel syndrome which was treated surgically in July 1997. At issue is which of two insurers must pay for disability and medical expense from the condition when it required treatment in 1997.

1. Facts and posture.

The facts may be briefly recited as background for the discussion of the commission's affirmance in this case. The applicant was born in 1962. He worked at Symet from 1982 to 1996, a company which sandblasts and repaints machinery. From 1982 to 1989, the applicant's duties at Symet included sandblasting and spray-painting.

In early 1989, the applicant saw Lewis Chamoy, M.D., for an unrelated finger injury on three occasions. After the first examination in May 1989, Dr. Chamoy noted the carpal tunnel symptoms and ordered an EMG which showed bilateral carpal tunnel syndrome. During the second examination, Dr. Chamoy noted the applicant's symptoms were improving despite continuing work. Dr. Chamoy determined to leave the carpal tunnel condition alone, but noted that if the symptoms worsened he would perform an injection. Dr. Chamoy's note for the third examination (in June 1989) does not mention carpal tunnel syndrome.

Shortly after this treatment, the applicant began a management job at Symet which evidently lasted until his employment at Symet ended in March 1996. As a result, he used his hands less at work. According to the synopsis of the hearing testimony, the applicant testified on direct examination that "his hands were okay when [he] left Symet." On cross-examination, he testified that "[his] hands bothered him less after 1989," that "[f]rom 1989 to 1997 [he] had mild symptoms usually after using hand tools," and that "the symptoms came back in May 1997 after [he] did more work again using hand tools."

As indicated above, the applicant left Symet in March 1996 and began working at Steelwind. That company also sandblasts machinery and cleans it. The applicant initially did supervisory or office work there. By January 1997, however, he had begun doing more shop work. This involved more handwork; he testified on cross- examination that he did several hours of spray painting a day. In April and May 1997, his carpal tunnel symptoms worsened, and were similar to those he had experienced in 1989.

The applicant began treating at Concentra Occupational Medical Centers, where he initially saw James Lincer, M.D. Restrictions were imposed. On or about April 11, 1997, the applicant was discharged from his job at Steelwind because he could not do the work.

Dr. Lincer referred the applicant to Curtis A. Crimmins, M.D., a hand specialist. Dr. Crimmins eventually did bilateral carpal tunnel releases in July 1997. The applicant has since resumed work as a painter with Midwest Express.

During his initial examination, Dr. Crimmins reported that the applicant gave a long history of upper extremity work, but that the real problem occurred recently when he developed numbness and tingling in his hands. See exhibit Liberty 2, Crimmins treatment note for April 22, 1997 (dated May 8, 1997.) Dr. Crimmins spent a great deal of time with the applicant, and noted that the applicant had worked for about a year with "his current company [Steelwind]." He described the applicant's duties including pressure spraying for 6 or 7 hours a day, and using a hammer to do handyman work.

Dr. Crimmins diagnosed moderate to severe carpal tunnel syndrome. He opined:

"I do believe this is a work-related condition of carpal tunnel syndrome. His work at Steelwind has significantly contributed to his carpal tunnel syndrome, and heavy spraying and other repetitive duties that he does are likely causative for his condition."

Exhibit Liberty 2, Crimmins report dated May 8, 1997, page 3 of 4.

Dr. Crimmins then signed two form practitioner's reports, opining that an event on April 11, 1997 (the last day of employment at Steelwind) caused disability by aggravating, accelerating and precipitating a pre-existing degenerative condition beyond its normal progression. See exhibits A and C.

Shortly thereafter or perhaps at the same time, (1) Dr. Crimmins wrote two letters in response to an inquiry from an adjuster working for Steelwind's insurer. In these letters, Dr. Crimmins opined that the applicant, while symptomatic at Steelwind, was injured earlier at Symet. He describes the applicant's carpal tunnel condition as long-standing and beginning during employment at Symet. He also indicated that the applicant experienced an incomplete recovery from the initial onset of symptoms at Symet in 1989. Dr. Crimmins concludes by offering the opinion that Symet's insurer should be liable. See exhibit United 2.

For its part, Symet offers the IME report of Aftab A. Ansari, M.D. Dr. Ansari, whose report refers to the records for treatment with Dr. Chamoy in 1989, opined that

"the problems Mr. Larson had in 1997 were not related to any specific injury at Symet. No treatment was necessary for the carpal tunnel syndrome until April of 1997, due to his workplace exposure at Steelwind, which I believe represents a material causative factor."

2. Discussion.

The ALJ adopted the opinion of Dr. Ansari, and found an April 11, 1997 date of injury. Steelwind is liable for that date of injury. The ALJ also awarded temporary disability, permanent partial disability, and medical expenses. Steelwind appeals, raising only the date of injury.

Carpal tunnel syndrome from prolonged work exposure (as opposed to a traumatic event) is an occupational disease. The first step in occupational disease cases is to determine the date of injury.

Wisconsin Statute § 102.01(2)(g) 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 Casualty 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 case 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. 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 occupational disease cases, the last employer whose employment contributed to the disease as of the date of injury is liable for the injury, on the theory that the risk will even out over time. Employers Mut. Liab. Ins. Co. v. McCormick, 195 Wis. 2d 410, 415 (1928). As Symet points out in its brief, as little as one day's work can be sufficient contribution to an occupational disease condition to result in liability for an employer. North River Ins. Co. v. Manpower, 212 Wis. 2d 63 (Ct. App. 1997).

Applying these rules to the facts of this case, the commission is satisfied that the ALJ correctly found Steelwind to be liable. True, the applicant treated for symptoms from the carpal tunnel syndrome while he worked for Symet in 1989. However, it was not until several months after beginning more hand-intensive employment at Steelwind in 1997 that the symptoms became sufficiently disabling to warrant work restrictions and surgery. This leads to the conclusion that the date of disability for the disabling condition for which the applicant seeks compensation did not arise until the applicant's work restrictions were imposed in April 1997 and that Steelwind was the last employer whose employment contributed to the condition.

It is true that Dr. Crimmins' later opinions state that the applicant's condition began with employment at Symet. However, Dr. Crimmins does not explain why he changed his mind from his original opinion that employment at Steelwind significantly contributed to, and was likely causative of, the applicant's carpal tunnel condition. The commission cannot conclude after reading the initial note dated May 8, 1997, that the applicant did not tell Dr. Crimmins about the prior symptoms and treatment going back to 1989. Nor does Dr. Crimmins say he changed his mind because of an inaccurate history. Indeed, even the subsequent letters in exhibit 2 do not expressly contradict the doctor's initial conclusion that employment at Steelwind contributed to the applicant's condition.

cc: ATTORNEY JOSEPH P DUFFEY
DUFFEY LAW OFFICE

ATTORNEY JOSEPH P DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY KURT VAN BUSKIRK
LAW OFFICE OF JEFFREY T O'CONNOR


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Footnotes:

(1)( Back ) Exhibit A is dated August 27 of some year and a note in United exhibit 1 is dated August 28, 1997.