STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
REUBEN E RAMOS, Applicant
VOSS JORGENSEN SCHUELER, Employer
NORTH RIVER INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1998065284
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant has worked for over 40 years as a cement mason hiring out of local union halls 558 and 599. His duties involve cement finishing, forming cement forms, pouring concrete, and engaging in various construction projects utilizing cement. Eighty to ninety percent of his work duties involve flat work - the finishing of concrete surfaces both indoors and outdoors, such as floors, sidewalks and driveways. His work duties require repetitive bending at the waist and crawling on his hands and knees. While working on his knees, the applicant would always use padding, but over the years he exerted natural pressure on the knees from his own weight and additional pressure from trowel finishing, both manually and with powered trowels.
Applicant experienced substantial pain and stiffness in his knees. The applicant's left knee was more problematic than the right. He sought treatment with Dr. T. A. O'Connor and Dr. Vijay Kulkarni. On November 22, 1994, Dr. O'Connor performed an arthroscopic surgical procedure on applicant's left knee. A November 30, 1994 treatment note focuses on applicant's left knee but appears to indicate that the right knee was sore. Exhibit 2. p. 3. In March of 1995 Dr. Kulkarni performed a total left knee replacement surgery. Applicant returned to work for various employers thorough his union hiring hall.
The applicant worked for respondent Voss-Jorgensen-Schueler from September 12, 1995 through his last day of work on December 7, 1995. The applicant saw Dr. Kulkarni for right knee complaints on Saturday, November 27, 1995. Applicant did not miss any work on that day, as things were slow. He was laid off on December 8, 1995, due to a lack of work. Dr. Kulkarni performed a total right knee replacement surgery on December 15, 1995. The applicant had not lost any time from work due to right knee problems prior to the knee replacement.
The respondent and insurer are disputing the date of injury for the right knee. The respondent and insurer note that in his November 11, 1997 application for hearing the applicant claimed a November 7, 1994, date of injury and 7.5 percent disability to both knees. Exhibit 4.
In an undated WKC-16-B Dr. O'Connor indicated November 7, 1994 and March 14, 1995 dates of injury, causation by aggravation, and assessed 7.5 percent disability to each leg. In the narrative description of the event/work exposure Dr. O'Connor states, "Persistent squatting, standing, kneeling, and walking with work as mason and cement finisher resulted in degenerative and inflammatory changes in both knees." Dr. O'Connor described the disability as "Degenerative changes to cartilage of both knees" and "Chronic and acute arthritis of both knees." Exhibit 2. Finally, Dr. O'Connor indicates applicant could return to work on January 10, 1995 and May 11, 1995, with the limitation of "no climbing ladders."
Dr. O'Connor's WKC-16-B report offered by applicant, Exhibit A, again undated, appears identical to the undated WKC-16-B in Exhibit 2 except that it is typed and assesses 7.5 percent disability to the left leg and 2.5 percent disability to the right leg. In addition, the date of traumatic event is listed as December 15, rather than March 14, 1995.
Dr. Kulkarni's WKC-16-B report, Exhibit B, indicates a date of disability from work of November 7, 1994. The narrative description of the event/work exposure is "pain and swelling both knees." Dr. Kulkarni assessed permanency of 7.5 percent in each knee. Dr. Kulkarni's second WKC-16-B, Exhibit C, lists no date of disability and no percentage of disability. In the narrative description of the event/work exposure he indicates "preexisting osteoarthritis right knee. In describing the disability he wrote "3/14/95 total knee replacement, left knee" and "12/15/95 total knee replacement, right knee." Both of Dr. Kulkarni's reports are undated.
The respondent and insurer contend that the doctors assessed permanent disability to both knees prior to the applicant's last day of work of December 7, 1995, and subsequent knee replacement surgery of December 15, 1995. Respondents argue that pursuant to Wis. Stat. § 102.01(2)(g)2, only in cases where disability first occurs after the cessation of all employment contributing to the disability does the statute refer to the "last day of work.'' Thus, since there was disability before applicant's last day of work, that earlier date (November 7, 1994) becomes the date of injury.
Wis. Stat. § 102.01(2)(g) provides:
(g) Except as provided in s. 102.555 with respect to occupational deafness, `time of injury', `occurrence of injury', or `date of injury' means:
(1.) In the case of accidental injury, the date of the accident which caused the injury.
(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. 4
* * *
4 Compensation benefits may be recovered for disability which occurs after the severance of the employer-employe relationship, even though there was neither wage loss, nor time loss during the time that the employe was in service.
Thus, in cases of occupational disease, the date of injury is the date of disability or, if that date occurs after the cessation of all employment contributing to disability, the last day of work for the last employer whose employment caused the disability. Where there is wage loss before the end of the employment, "date of injury" means the first day of "wage loss." General Casualty Co. of Wisconsin 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 (1), is laid off (2), or has switched to employment which no longer contributes to the occupational disease.(3)
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?" (4). 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. (5)
The employer and insurer are arguing for various dates of injury: November 7, 1994 the first treatment for the left knee, March 14, 1995, when applicant had surgery on his left knee, May 11, 1995 when Exhibit A lists work limitations of no climbing ladders, and November 27, 1995 when applicant attended a doctor's appointment.
This is a case where the doctors' records may contain a medical opinion, but do not meet the legal standard for date of injury/disability. The applicant did not lose work time or suffer a wage loss, actually or constructively, prior to the end of his employment. Further, while he may have had right knee symptoms before his last day of work, the applicant's right knee condition had not ripened into a disabling condition prior to the end of his employment. The most that exists in this case is mention in medical notes, specifically the November 30, 1994 note and the November 27, 1995 note, that applicant was experiencing difficulties with his right knee. However, as noted above, experiencing symptoms does not meet definition of date of injury under Wis. Stat. § 102.01(2)(g).
The only date prior to the last day of work that could have met the date of injury definition was November 27, 1995, when applicant attended treatment for his right knee. However, the applicant testified that that was a short day of work, and that he did not miss any work time, actually or constructively. Since the employe was laid off two weeks later, the applicant's testimony is credible. More importantly, however, the employer offered no testimony or records to establish that additional work was available for the applicant on November 27, 1995.
The commission finds based on the foregoing medical evidence and applicant's credible testimony that he sustained an injury to his right knee both directly and by precipitation, aggravation and acceleration of a preexisting progressively deteriorating or degenerative condition beyond its normal progression while working for respondent. The commission further finds that applicant's date of injury was his last day of work for the respondent employer, December 7, 1995.
By stipulation of the parties, the respondent and insurer are liable for the payment of temporary total disability benefits for the period from December 14, 1995 to February 12, 1996 (both dates exclusive; 8 weeks, 2 days at $479 per week), equaling $3,991.67 and 50 percent at the right knee (212.5 weeks at $164 per week), equaling $34,850. The sum of $32,719 is accrued to December 10, 1999 (199 weeks and 3 days at $164 per week).
Pursuant to a request under Wis. Stat. § 102.26, the attorney fee is fixed at $7,768.33. An interest credit of $3.98 is due.
The respondent and insurer are also liable for the following reasonable and necessary medical expenses: to South Shore Family Medical, $1,063.48; to CompCare, as reimbursement for non-industrial payment of medical expense, $1,914.60; and to the applicant, as reimbursement for his payment of medical expense, $580.
Because the applicant shall require future medical expense to cure and relieve the effects of his injury, jurisdiction is reserved as to all issues for such further findings and orders as may be warranted.
NOW, THEREFORE, this
INTERLOCUTORY ORDER
The administrative law judge's order is modified to conform to the foregoing findings
and, as modified, is affirmed. Within 30 days of the date of this order the respondent and
insurer shall pay to the applicant, Rueben E. Ramos, as accrued compensation, the sum of
Twenty nine thousand three hundred sixty-seven dollars and seventy-four cents
($29,367.74), lump sum; to the applicant, beginning January 10, 2000, the sum of Seven
hundred ten dollars and sixty seven cents ($710.67) per month and monthly thereafter until
the sum of One thousand seven hundred five dollars and sixty cents ($1,705.60) is paid; to
South Shore Family Medical, the sum of One thousand sixty-three dollars and forty-eight
cents ($1,063.48); to CompCare, as reimbursement for non-industrial payment of medical
expense, the sum of One thousand nine hundred fourteen dollars and sixty cents
($1,914.60); and to the applicant, as reimbursement of his payment of medical expense, the
sum of Five hundred eighty dollars ($580); and to Attorney Michael Bertling, as fees, the
sum of Seven thousand seven hundred sixty
four dollars and thirty-five cents ($7,764.35). Jurisdiction is reserved as to all issues
for such further findings and orders as may be warranted.
Dated and mailed April 13, 2000
ramosre.wrr : 132 : 6 ND § 3.4
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
cc: ATTORNEY MICHAEL L BERTLING
MC LARIO HELM BERTLING SC
ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC
Appealed to Circuit Court. Affirmed November 16, 2000.
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Footnotes:
(1)( Back ) Kohler Co. v. DILHR, 42 Wis. 2d 396 (1969).
(2)( Back ) Wisconsin Granite Co. v. Industrial Co., 208 Wis. 270 (1932).
(3)( Back ) Green Bay Drop Forge v. Industrial Commission, 265 Wis. 18 (1953).
(4)( Back ) Kohler, supra, at 42 Wis. 2d 400.
(5)( Back ) Montello Granite Co. v. Industrial Commission, 278 N.W.2d 391, 399 (1938).