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

TERRY L MELVIN, Applicant

BEST LINE INC, Employer

GREAT WEST CASUALTY COMPANY, Insurer

WORKERS COMPENSATION DECISION
Claim Nos. 93044101, 94037949

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on July 15, 1994, following a hearing on May 25, 1994. The employer and insurer Great West Casualty Company (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage in 1991 of $394.04 and an average weekly wage in 1992 of $481.24. Great West also conceded that it had not made any payments to the applicant under ch. 102, Stats., to the date of the hearing, and that it was on risk beginning on July 1, 1990, through the date of the hearing.

In dispute is whether the applicant sustained an injury by occupational disease while Great West was on risk and the date of such injury. If a compensable injury is established, the next issue is the nature and extent of disability from the injury and liability for medical expenses. The final issue is whether the order should be left interlocutory on the issues of additional medical expense, additional disability, vocational rehabilitation and loss of earning capacity.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. The commission hereby affirms the administrative law judge's Findings of Fact and Interlocutory Order, except as modified herein:

MODIFIED FINDINGS OF FACT

1. The first five paragraphs (1) of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

2. The sixth paragraph of the administrative law judge's Findings of Facts and Conclusions of Law is modified by deleting the last two sentences and substituting therefor:

"The applicant was promoted to supervisor in August 1992. Dr. Rieser stated in his August 21, 1992 note that the applicant's work `consists of light duty, ten pounds lifting.' On the other hand, the applicant also continued to work on trucks as a supervisor and still lifted amounts beyond his restrictions."

As modified, the sixth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.

3. The seventh, eighth and ninth paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

4. The tenth paragraph is modified by deleting the last two sentences and substituting therefor:

"Therefore, the applicant reached a healing plateau on March 8, 1993 and would be entitled to temporary disability to that date, if temporary disability is awarded."

As modified, the tenth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.

5. The eleventh paragraph of the administrative law judge's Findings of Fact is deleted and the following substituted therefor:

"The next issue is the applicant's eligibility for temporary total disability. At the hearing, Great West Casualty Company asserted that any claim for temporary disability would be statutorily barred by sec. 102.44 (6)(a) and (g), Stats. Great West argued that the applicant's decision to quit was the same as declining return to work. In response, the applicant asserted that he was required to do work that he physically could not do, and that he was attempting to follow his doctor's orders.

"The report from the applicant's exit interview (Exhibit 3) is dated December 28, 1992. The report refers to a personality conflict between the applicant and the day foreman, Jim Gilles. In response to questioning about the personality conflict at the hearing, the applicant commented vaguely that he and Jim Gilles could not get along.

"Section 102.44 (6), Stats., deals with permanent disability, not temporary disability. However, under sec. 102.43 (2), Stats., if a worker continues to work part-time or at a reduced wage despite an injury causing temporary partial disability, the worker is compensated at such proportion of the weekly indemnity rate for total disability as the worker's reduced wage loss bears to his preinjury average weekly wage. In addition, sec. IND 80.47, Wis. Adm. Code, states:

`Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.'

"In this case, the applicant was furnished with work within his restrictions which he could perform, but which he quit by resigning on December 15, 1992, for reasons unconnected with his work injury. Treating doctor Rieser described the work as light, and never recommended or advised him to quit it. Indeed, Dr. Rieser stated the applicant's restrictions remained the same as late as January 15, 1993, and did not opine the applicant was totally disabled until the date of the surgery, January 27, 1993. See the last three pages of Exhibit A.

"By statute, of course, the applicant's date of injury for the purposes of fixing liability is December 15, 1992, his last day of work with Best Line. However, that does not mean he was necessarily totally disabled as of that date. The record in this case indicates he could have continued to work as a supervisor for Best Line, and would have were it not for his personality conflict. The start date for temporary total disability is thus fixed at the date of the surgery to repair his occupational back, January 27, 1993."

6. The twelfth paragraph of the Findings of Fact is affirmed and reiterated as if set forth herein. After the twelfth paragraph, insert:

"The applicant therefore was temporarily totally disabled from January 27, 1993, through March 7, 1993, a period of five weeks and 3 days (2). This amounts to a total of $1,764.57 for temporary total disability (5.5 weeks at $320.83 per week).

"The applicant also sustained a permanent partial disability of four percent compared to disability to the body as a whole. He is therefore entitled to 40 weeks of permanent partial disability, compensable at $144 per week (the maximum statutory rate for 1992). This amounts to a total of $5,760 for permanent partial disability.

"The applicant also agreed to an attorney fee under sec. 102.26, Stats., equal to 20% of the additional amounts awarded for permanent partial and temporary total disability. This works out to $1,504.91 {20% of ($1,764.57 plus $5,760)}. The fee shall be deducted from the amounts awarded to the applicant."

The amount payable to the applicant for disability is ($6,019.66), which equals the total for permanent partial and temporary disability ($7,524.57) less attorney fees ($1,504.91)."

The thirteenth and fourteenth paragraphs of the administrative law judges Findings of Fact are affirmed and reiterated as if set forth herein.

10. The administrative law judge's Interlocutory Order is deleted and the second and third paragraphs of the Modified Interlocutory Order set out below are substituted therefor.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

MODIFIED INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed.

Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Terry L. Melvin, the sum of Six thousand nineteen dollars and sixty-six cents ($6,019.66) for disability.

(2) To the applicant's attorney, Lisa Drill, the sum of One thousand five hundred four dollars and ninety-one cents ($1,504.91) as attorney fees.

(3) To the applicant, Terry L. Melvin, the sum of One thousand six hundred forty-one dollars and forty-six cents ($1,641.46) as reimbursement of out-of-pocket medical expense and mileage.

Jurisdiction is retained to issue such further orders as may be warranted.

Dated and mailed February 8, 1995
melvite.wrr : 101 : 8 ND § 3.4  § 5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

In its petition for commission review and supporting briefs, the respondent contends that the date of injury or date of disability was in March 1990 when the applicant lifted the tires. At the time, another insurer, Liberty Mutual Insurance Company, was on risk. (3) The respondent also challenges the administrative law judge's finding of permanent disability as unsupported by the medical reports. The respondent goes on to argue that the applicant's quit in December 1992 means it should not be held liable for temporary total disability (assuming it is liable at all) until the date of the surgery. The respondent finally argues that the quit precludes an award for loss of earning capacity or vocational rehabilitation, so the order should not have been left interlocutory on those issues.

The first issue is related to causation. The respondent's expert opined that the applicant's disc herniation most likely occurred in March 1990 when the tire-lifting incident aggravated a pre-existing back condition back beyond its normal progression. However, the applicant returned to work after the March 1990 event and worked at normal duties with only occasional flare-ups and intermittent pain until the last half of 1991 when the applicant's symptoms increased dramatically. In fact, the applicant continued to do heavy work until at least August 1992. Under these circumstances, the commission has difficulty concluding that the disc herniation occurred in March 1990 as Dr. Becker opines.

Robert H.N. Fielden, M.D., gives the following opinion on behalf of the applicant:

"In summary, this is a man who has a herniated disc at L5-S1. He had one specifically recorded incident of injury for which he did not lose any time and was not seen initially. He had ongoing back discomfort from then.

"The question regarding causation is rather questionable, if it related to that one incident. It would appear that he does have degenerative discs. He has some developmental stenosis of his back. He may have had some temporary aggravation of a degenerative disc at that time, but it would not appear certainly that the disc was disrupted or herniated at that point. He has subsequently gone on to develop a herniated disc through other incidents and through time.

"I think that the work exposure was more of a contributory cause to the progress of the disc herniation, rather than the March 1990 injury as a permanent aggravation."

Dr. Fielden went on to assess 5 percent permanent partial disability which he attributed 1 percent to a pre-existing condition, 1 percent to the March 30, 1990 incident (if it can be considered a causative factor) and 3 percent to "work exposure at Best Line."

An occupational disease has been defined as being acquired as the result and an incident of working in an industry over an extended period of time. Rathjen v. Industrial Commission, 233 Wis. 452, 460 (1940); Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App., 1982. Further, the court of appeals recognized that occupational disease could be caused by a series of accidental back injuries. Shelby, at 109 Wis. 2d 663.

The commission believes that Dr. Fielden's opinion reconciles the facts and the applicant's medical history better than Dr. Becker's. It also concludes that Dr. Fielden has in effect opined that the applicant's injury was caused by occupational disease. The next question is the "date of injury" from the occupational disease.

Section 102.01 (2)(g), Stats., provides that 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).

According to the respondent, the date of disability from occupational disease in this case (if there was occupational disease) should be found to start in June 1991 with his first doctor's visit after the March 1990 event. The respondent cites General Casualty for support. That case holds that a doctor's appointment during working hours is lost work time amounting to lost wages, even if the applicant is later reimbursed for the time anyway.

The General Casualty court did state that "actual wage loss presumption is not a prerequisite to a finding of disability." The court went on to state that recovery was possible even if no loss of wage was involved, depending on the applicant's medical condition. General Casualty, at 165 Wis. 2d 181-82. For support of those statements, the court cited Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 403-05 (1969).

Kohler involved an occupational disease claim by a retired applicant. The court of appeals in General Casualty summarized rather liberally the supreme court's holding in Kohler that an individual who ceases employment due to retirement may nonetheless recover for an occupational disease based on his medical condition at the time of retirement. The Kohler court went on to find that the retired applicant could still recover benefits even though, due to his retirement, he did not sustain an actual wage loss.

Read in context, then, General Casualty does not mean that the first occasion that a worker sees a doctor about a condition that later develops into, or later is determined to be, an occupational disease must necessarily be the date of injury. Thus, simply seeing a doctor prior to the last day of work does not automatically rule out the last day as the date of injury. In Shelby, for example, the applicant saw a doctor about his back on several occasions before his last day of work, but the court affirmed the finding that the last day of work was the date of injury.

In this case, Dr. Fielden's opinion supporting the finding of occupational disease was rendered well after July 1991, and after considerable additional work exposure. Further, as the administrative law judge noted, while the applicant obtained medical treatment in 1991, the record did not establish that he missed work to do so. During at last part of his employment the applicant worked on an evening shift. In sum, there is no showing that the applicant lost work time, whether he was ultimately reimbursed for it or not, because of an occupational disease, or that the "medical condition" he saw the doctor about in 1991 had yet developed into occupational disease.

Under the circumstances, the administrative law judge reasonably found that the facts supported causation by occupational disease with the date of injury being December 15, 1992, the applicant's last day of work with the employer.

The next question is the amount of permanent partial disability. Dr. Fielden rated the applicant's disability at 5 percent, but allocated 1 percent to the applicant's preexisting condition and 1 percent to the March 30, 1990 injury "if it can be considered a causative factor." The administrative law judge awarded 4 percent because he did not consider the March 30, 1990 injury to be a causative factor. However, even if the March 30, 1990 injury did play a causative role in the progression of the applicant's occupational back disease, that does not mean it would have to be deducted from the rating or apportioned to Liberty Mutual. Apportionment of liability between successive insurers of a single employer whose employment caused an occupational disease is generally disapproved. Shelby, at 109 Wis. 3d 664-65. Finally, an administrative law judge has some authority to deviate from the disability ratings given by doctors. Section 102.18 (1)(d), Stats.

The next question is the amount of the temporary total disability award. As noted in the body of this decision, the commission agrees with the respondent that the applicant should not be eligible for temporary total disability between the time he quit and his January 27, 1993 surgery, since he could have continued to work within his restrictions as a foreman for the employer but chose not to.

The administrative law judge emphasized that temporary disability is a medical question not a vocational one, citing the recent supreme court decision in GTC Auto Parts v. LIRC and Bartosh, 184 Wis. 2d 450 (1994). In Bartosh, the court held that temporary disability could not be extended past the date of the healing plateau, despite vocational considerations, and that LIRC could only order the payment of temporary disability during a healing period. Here, however, nothing in the reports of Drs. Rieser or Fielden indicates that the applicant could not have continued to work when he quit and, as noted above, temporary disability is subject to an offset from wages earned during a healing period. Further, the reports Dr. Rieser filed with the insurer indicate that disability did not begin until January 27, 1993, the date of the surgery.

On the other hand, the commission is not willing to assume that the applicant would have been returned to work by Best Line on February 23, 1993, had he not quit. Such a finding would be speculative, particularly since Dr. Rieser issued three releases with three different dates. In this case, the commission views the best end to the temporary total disability to be March 8, 1993, when the applicant did in fact return to work.

Finally, the respondent raises the question of whether to issue an interlocutory order on loss of earning capacity and vocational rehabilitation. The commission believes it should. First, while the applicant quit the employer, that does not automatically mean Best Line would have continued to employ him after the surgery. Thus, the commission is unwilling to treat a quit as a kind of blocked job offer for either potential claim. (4) That is not to say that future unwillingness to work generally, or for the employer in particular, would not be a valid consideration in any claim the applicant may make for loss of earning capacity.

The commission did not confer about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The commission affirmed most of the administrative law judge's decision; the amendment dealt only with the issue of the start date for temporary disability. On this issue, the commission accepted the administrative law judge's underlying fact findings. However, the administrative law judge did not base his finding on temporary disability based on the factual question of the reason why applicant quit. Rather the judge relied on Bartosh, supra, and focused on the medical issues to determine eligibility for temporary disability. Since the administrative law judge's finding did not turn on credibility of a witnesses testimony, a credibility conference was unnecessary.

cc: ATTORNEY JEFFREY J STRANDE
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY LISA M DRILL
DOAR DRILL & SKOW SC

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Footnotes:

(1)( Back ) The last being the paragraph beginning on page 4 and ending on page 5 of the decision.

(2)( Back ) Section 102.43 (4), Stats.

(3)( Back ) The applicant compromised with Liberty Mutual.

(4)( Back ) Indeed, treating a quit as a refusal of a job offer was specifically rejected in Petterson v. LIRC and Gilson Medical Electronics, Inc., Court of Appeals case no. 87-1267, district IV unpublished decision (February 4, 1988). In that case, the court found that LIRC "implicitly rejected [the] argument that a wage loss caused by voluntary termination of one's employment for non-injury-related reasons entitles one to a determination of lost earning capacity." Slip op., at 4. In this case, of course, the applicant has returned to work with another employer. The commission has amended the decision to deny the total temporary disability during the period it would have been payable because of the quit. Given that the applicant has found re-employment, the commission is unwilling to determine in advance that any wage loss he might have hereafter is occasioned by his quitting the Best Line.