Wis.LIRC WC Decision: Bruggink - February 10, 2000 - ND � 5.20 - Non-Schedule Injury - extent of PPD from occupational asthma - AMA disability assessment guidelines, based on condition when optimally treated, questioned for asthma cases - work restrictions disable applicant from his job, and medication causes side effects

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

PARRY WENDALL BRUGGINK, Applicant

KOHLER CORPORATION, Employer

KOHLER CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996062359

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 February 10, 2000
bruggpe.wsd : 101 : 5 ND � 5.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant has developed occupational asthma and reactivity to coolant fumes based on his exposure to chemicals in the employer's workplace. The applicant was initially treated for his occupational asthma by Robert T. Willis, M.D., a specialist to whom the applicant was referred by the company doctor, Dr. Cheng.

Based on the applicant's condition, Dr. Willis set out permanent work restrictions in a letter apparently to Dr. Cheng in November 1997 (see exhibit E, Willis note of October 31 and November 14, 1997). Jordan Fink, M.D., another specialist whom the applicant saw on consultation, also set restrictions against exposure to coolant, irritants, fumes, smoke or dust. Exhibit F, page 2.

The employer attempted to accommodate the applicant's restrictions. The applicant testified the attempts were unsuccessful, and there is no contrary evidence in the record. The applicant quit his job, and found work first as a car salesman, then as a surveyor's assistant. He now earns about $360 per week as opposed to $581 while working for the employer.

The issue at hearing, and now before the commission, is the extent of the applicant's permanent disability from the work injury. (1 ) On this issue, the employer offers the opinion of Dr. Willis while the applicant offers that of Dr. Fink.

In October 1998 Dr. Fink rated permanent partial disability at 10 percent for "reactivity to coolants." See exhibit F. However, that rating addressed only a portion of the applicant's residual disability, as Dr. Fink in the same paragraph wrote:

"It will be necessary to re-evaluate him in Spring 1999 to determine if his airway reactivity has persisted to provide information regarding permanency. A number of individuals removed from the offending environment may revert to normal pulmonary function and about 50% continue to have symptoms and airway reactivity."

Exhibit D, Fink letter dated October 12, 1998, page 2.

Thus, in the spring of 1999, about a year and a half after he stopped working for the employer, the applicant underwent two pulmonary function tests to allow Dr. Fink to rate permanent disability associated with the occupational asthma. The first, done in March 1999 while the applicant was taking his medication (a potent anti-inflammatory), showed no reactivity and at worst low normal lung function. The second, done in April 1999 after the applicant had been off medication for about 2 weeks, showed a 20% decline in Fev1.

Dr. Willis, noting he was unaware if a precedent for assigning a degree of disability when the patient does not have disabling symptoms while on medication, found no permanent partial disability. (2 ) See exhibit 1. Dr. Fink, on the other hand, noting that the applicant's symptoms returned when he stopped taking medication indicating a long term need for medication, rated permanent partial disability (now considering both the coolant sensitivity and the occupational asthma) at 35 percent. Exhibit C.

Although not expressly cited as elements of disability by Dr. Fink in his report, the applicant testified that the condition leaves him fatigued and unusually short of breath, and that the medication has side effects. It is not hard to believe the applicant's testimony on this point, as similar complaints are documented in the notes of his treatment with Dr. Willis in 1997 and 1998, and with Dr. Willis's colleague at the Sheboygan Clinic, Dr. Duncklee, in 1999. Exhibit D.

The presiding ALJ awarded permanent partial disability at 35 percent in accordance with Dr. Fink's assessment. The employer appeals. Its main argument is that the AMA guidelines mandate assessment of permanent disability when the worker is receiving optimal treatment, and that when the applicant takes his medication, he has no disability as measured by the pulmonary tests.

However, the commission does not agree that the applicant has no permanent partial disability. First, the commission is not persuaded that the AMA position on how to rate permanent disability from occupational asthma is certain or satisfactory. The respondent provides the AMA policy at exhibit 6. Asthma is discussed in table 10. This discussion suggests that the appropriate disability rating in asthma cases (unlike other pulmonary diseases) is not based just on pulmonary function testing, as does the case study given on the second last page of the exhibit.

Further, the various articles included by the respondent at exhibits 3, 4, and 5, actually criticize the AMA "optimal treatment" approach. For example, at respondent's exhibit 3, the author writes this about the optimal therapy approach
used by the AMA:

"Such guidelines are inappropriate for patients with asthma who have variable flow obstruction. Their lung function may be normal at the time of evaluation while they are taking mediations; such patients would not be considered to be impaired according to the AMA criteria. In addition, patients with asthma have NSBH, which renders them unable to work in an environment in which they are exposed to irritants or cold air even though they are not exposed to the initial sensitizing agent."

Exhibit 3, Chan-Yeung article, at FINK-13.

Another article notes, in discussing the efficacy of treatment as a factor in rating disability for asthma, that the higher the level of hyperreactivity, the better the effect of treatment. This creates the paradox that those with more severe disease may be more responsive to treatment, and less disabled under the AMA standard. Exhibit 4, Harber article at page 4. This article goes on to suggest a variety of factors besides just pulmonary function should be considered when rating permanent disability from asthma. Indeed, a third article, from the American Thoracic Society, at exhibit 5, table 3, suggests factoring the need for medication itself into the disability rating.

Further, at least one treatise suggests that because asthma is so different from other pulmonary diseases, the AMA guidelines do not apply. While pulmonary function may be used, the final rating should consider a variety of other factors, and the rating left to the physician's own judgment. 2 Stone, Occupational Diseases � 34A.09 (MB 1994).

In this case, while the applicant can control his condition with medication, the medication does not eliminate the disability. (3 ) Indeed, because of the work injury both Dr. Willis and Dr. Jordan set permanent work restrictions which disable the applicant from his job with the employer. In addition, the applicant's medication causes very real side effects. In sum, between the competing medical opinions concerning the extent of permanent partial disability, the commission agrees with the ALJ that Dr. Fink's is most credible.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY PAUL TEN PAS
KOHLER COMPANY

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Footnotes:

(1)( Back ) In his April 1999 disability evaluation (exhibit 1), Dr. Willis noted that causation had once been in question. However, Dr. Willis went on to note that he referred the applicant to Jack Kaufmann, M.D., because Willis did not feel able to render a clinical judgment on causation, and that Dr. Kaufmann noted the cause of the applicant's reactive airway disease was most likely due to industrial exposure. See also reports of Kaufmann at exhibit B. Thus, causation is not at issue, and the employer has paid some TTD and medical expense for the applicant's condition.

(2)( Back ) Dr. Willis initially had declined to rate permanent partial disability, leaving that to Dr. Kaufmann, the expert to whom he deferred on causation. See Exhibit E, Willis note for November 14, 1997. However, Dr. Kaufmann evidently never offered an opinion on permanent disability. Exhibit B.

(3)( Back ) The commission notes that in the roughly analogous case of occupational hearing loss, while hearing aids are sometimes prescribed to improve hearing loss in a non-occupational setting (Wis. Adm. Code � DWD80.25(6), a worker's hearing loss for disability purposes is measured without the hearing aid.