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


CAROL D BERGSTROM, Applicant

NECEDAH SCREW MACHINE PRODUCTS, Employer

HERITAGE MUT INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-048136


The employer and West Bend Mutual 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 October 17, 2000. Answers were submitted by the applicant, Heritage Mutual Insurance Company, and Northern Insurance Company of New York. Briefs were subsequently submitted by the parties. The employer and insurance carriers conceded that the applicant sustained a compensable contact dermatitis arising out of and in the course of her employment with the employer, but assert different dates of injury. The applicant asserts that she sustained separate occupational contact dermatitis injuries with separate dates of injury. In addition, nature and extent of disability and liability for medical expense are at issue.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is July 22, 1944, has been employed since 1973 as a machine operator for the employer, a machine products manufacturer. She had no problem with contact dermatitis prior to May of 1993, at which time the employer began using a new water soluble coolant to cool, lubricate, and rinse machine parts. During the first two or three days of exposure to this new coolant, the applicant experienced severe itching of her hands. By the time she went to Dr. M. Sammour on May 5, 1993, she had lesions on her left hand and was diagnosed with eczematous dermatitis. Dr. Sammour prescribed ointment and recommended the use of protective gloves at work. The applicant did not miss work to see Dr. Sammour on this occasion.

The applicant's condition improved with use of the ointment and gloves, but she "always had something there" after this initial episode. The condition of her hands would periodically improve but then worsen depending upon the extent of exposure to the coolant and other oils and solvents. The applicant's work duties always involved some degree of exposure to these offending agents, thus explaining her ongoing problem. The applicant saw Dr. Sammour again for the problem on September 2, 1993, and saw his physician's assistant on December 19, 1994. Both visits were again outside of work hours. Increasingly stronger ointments were prescribed, but the applicant did not miss any work due to the problem.

On Friday, February 24, 1995, the applicant took a day of vacation because the condition of her hands was so poor that she wanted time away from the job to promote healing. She wrote on her absence report for that day that the reason for the vacation day was "Illness-Hands." She did not see a physician and returned to work on Monday, February 27, 1995. She saw Dr. James A. Patterson for her hands on March 31, 1995, and he noted that she had been treated for the past couple of years for eczematoid reaction in both hands. He also recorded that the condition flares, gets better with medication, and then recurs. He advised the applicant that she would continue to have the problem as long as she worked with petroleum products, and even after that she might have some eczematoid changes. She also treated with Dr. Patterson on May 5, 1995, June 13, 1995, and June 26, 1995, but did not miss work to do so.

On July 20, 1995, the applicant saw a dermatologist, Dr. S. F. Patten. His assessment was dyshidrotic hand eczema, likely aggravated by work contactants primarily and perhaps some home contactants. He recommended continued use of ointments and gloves at work. The applicant did not miss work to see Dr. Patten.

The applicant saw Dr. Sammour's physician's assistant on November 10, 1995, and he indicated to her that there was no way to get rid of her rash short of quitting her job.

On Friday, February 16, 1996, the applicant again took a vacation day because her hands were in such poor condition that she needed time away from work. The applicant returned to Dr. Patterson on June 14, 1996, and again on July 10, 1996, and on March 19, 1997. She missed no work for these appointments. She again took vacation days on Thursday and Friday, September 25 and 26, 1997, in order to allow her hands to heal. She did not see a physician. She left work early on December 3, 1997, due to her hand condition, but again did not seek treatment.

In late February of 1998, the applicant was working without gloves and was subjected to full exposure to the coolant and other solvents. This resulted in a full-blown flare-up of her eczematous contact dermatitis. She saw Dr. Patterson on March 2, 1998, and he diagnosed a severe eczematoid reaction and dermatitis secondary to use of chemical solvents. He indicated that the applicant had to avoid contact with the solvents for three months, and at that time her condition might clear. Dr. J. D. Hogan, a dermatologist, also saw the applicant on March 2, 1998. He recommended four weeks off work and then a return with restrictions and protection from exposure to the coolants and solvents. The applicant took five days of vacation leave beginning on March 2, 1998.

The applicant continued to treat with Dr. Patterson and Dr. Hogan. She left work early after only one and one-half hours on March 27, 1998, due to her hand condition. Dr. Hogan released her to return to work on July 22, 1998, but only with restrictions to avoid contact with irritants. The applicant continues to have problems with her hands, in direct relation to her exposure to the irritants.

On March 31, 1999, Dr. Hogan wrote a letter opining that the applicant's work exposure did cause her industrial contact dermatitis. He described the condition as a combination irritant dermatitis from the coolants as well as contact allergy to the milling oil/aluminum lubricant solution. He opined that the contact dermatitis did prevent the applicant from working from March 2, 1998 through March 8, 1998, and from March 27, 1998 through June 22, 1998. On May 12, 2000, Dr. Hogan completed a WC-16-B which listed March 2, 1998 as the date of the traumatic event, checked the "directly caused" and "occupational disease" causation boxes, and found no permanent disability.

At the request of Northern Insurance (a/k/a Zurich Insurance), Dr. Donald Schuster examined and evaluated the applicant. In his report dated May 12, 1999, he diagnosed an irritant reaction to the coolant and solvents the applicant encountered at work. He opined that her condition has resulted from repeated episodes of acute irritant reactions to those substances that cause new and distinct skin damage with each exposure. He further opined that the applicant's condition was not caused by sensitization to the substances and there was no permanent disability. However, he noted that further improvement could not be expected as long as the applicant continued working at her job.

At the request of West Bend Insurance, Dr. William Buchta examined the applicant on April 14, 1999, and submitted a written report on April 26, 1999. He opined that the applicant had developed a nonindustrial skin sensitivity, which up until West Bend went off the risk on May 1, 1996, had only resulted in temporary flares of dermatitis due to contact with the irritants at work. He also opined that there had been no sensitization to the chemicals and no permanent disability.

It has been conceded by the employer and by all three insurance carriers on the risk that the applicant sustained a contact dermatitis, more specifically eczematous contact dermatitis, arising out of and in the course of her employment with the employer. This occupational condition was diagnosed by Dr. Sammour on May 5, 1993, and on more than one occasion thereafter. On December 19, 1994, Dr. Sammour's physician's assistant noted that the applicant was having a severe eczematoid reaction and advised her to avoid contact with the "oils" at work for approximately two and one-half weeks. However, the applicant continued to work and to place her hands in contact with the coolant, and as previously noted, she took a vacation day to avoid continued contact on February 24, 1995. West Bend Mutual has argued that this could not be an occupational date of injury, because there was no concurrent medical treatment on or about February 24, 1995. But the question of whether the applicant took that vacation day as a result of her eczematous contact dermatitis is a question of fact, and there is credible medical evidence supporting the inference that she did, as well as credible lay evidence in the form of the applicant's testimony.

Dr. Sammour and his physician's assistant had diagnosed recurring episodes of eczematous contact dermatitis well before February 24, 1995, and had indicated in clinic notes that the condition was attributable to the applicant's ongoing work exposure. Subsequent medical opinions uniformly make the causal connection between the applicant's work exposure and her recurring eczematous contact dermatitis. As the administrative law judge and the commission have both found, the applicant credibly testified that her hands were in such poor condition on February 24, 1995, that she decided to take a vacation day to give them a respite from the continuing exposure. Given the evidence presented in this case, the credible inference is that this vacation day was taken as a result of the effects of the applicant's occupational eczematous contact dermatitis. Therefore, an occupational date of injury occurred on February 24, 1995.

The administrative law judge also found an occupational date of injury on February 24, 1995, but he found that this was a date of disability for a single occupational disease. The medical opinions, as well as certain undisputed facts, do not support the finding that there was only one occupational disease in this case. It was stated in Zurich General Accident & Liability Insurance Company v. Industrial Comm., 203 Wis. 135, 233 N.W. 772 (1935):

"" . . . 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." Id. At 147. (1)

The medical opinions in this case are credibly summarized by Dr. Schuster's statement that the applicant's condition ". . . resulted from repeated episodes of acute irritant reactions to those substances that caused new and distinct damage to the skin on each exposure." The applicant's hand condition is a contact dermatitis and has manifested itself acutely as a reaction to contact with the coolant and solvents at work. Her condition improves in direct proportion to her ability to minimize hand contact with these substances, and is precipitated in direct proportion to her degree of exposure to them.

Although Dr. Patterson indicated in a clinic note that the applicant "may" have "eczematoid changes" even after she no longer has a job exposing her to coolants and solvents, the other physicians of record uniformly opined that there had been no sensitization and no permanent disability. Accordingly, the credible inference is that as of the date of hearing, the applicant had not sustained a permanent medical condition. She had sustained separate and distinct outbreaks of eczematous contact dermatitis precipitated by periods of work exposure, and resulting in missed work. These outbreaks were directly caused by distinct periods of occupational exposure and thus were occupational rather than traumatic injuries.

The first occupational disease injury was previously found to have occurred on February 24, 1995, and resulted in that one day of missed work. The second date of occupational disease injury occurred on Friday, February 16, 1996, when the applicant's condition again required that she take a vacation day in order to protect and heal her hands. West Bend Mutual Insurance Company was on the risk for both of these occupational dates of injury. Vacation pay is an earned fringe benefit and does not relieve the employer/insurer of the obligation to pay temporary disability benefits. (2) However, Wis. Stat. § 102.43 provides that no temporary disability is due until the fourth calendar day from the date of the work injury, and since each of the above occupational injuries only resulted in one lost day of work, no temporary disability is due for them.

The next date on which the applicant took vacation days and missed work in order to "heal her hands" (3) was Thursday, September 25, 1997. She took a vacation day for the same purpose on Friday, September 26, 1997, and returned to work on Monday, September 29, 1997. This constituted a third occupational disease injury for which Northern Insurance Company of New York was on the risk. (4) Under Wis. Stat. § 102.43, Sundays are excluded from the calculation of the three-day waiting period, and therefore no temporary disability is due for this injury. The applicant left work early due to her hand condition on Wednesday, December 3, 1997, but returned the next day. This constituted a fourth date of occupational disease injury, but again the disability did not extend to the fourth calendar day after the injury, and no temporary disability is due for this injury.

The applicant's high degree of work exposure to coolant in February of 1998 caused a fifth occupational injury which resulted in absences from work beginning on March 2, 1998, when she saw Dr. Hogan. March 2, 1998, was therefore the date of the fifth occupational injury. Dr. Hogan and Dr. Patterson continued to treat the applicant for this ongoing episode of eczematous contact dermatitis, with Dr. Hogan opining in his clinic note of June 12, 1998, that he estimated the applicant would be able to return to work on July 22, 1998. The applicant actually was able to return to work on June 23, 1998. She claimed "temporary disability" (without specifying whether any of the claim was for temporary partial disability) for the period of March 2, 1998 through March 14, 1998, and again for the period of March 27, 1998 through June 22, 1998. There was no discussion of these dates in the respondents' briefs to the commission, but they are not consistent with the applicant's testimony concerning what dates she was off work during this period (hearing transcript, pages 44-45), nor with the absentee reports found at Applicant's Exhibit C. Accordingly, the order will be left interlocutory with respect to the issue of precisely what amount of temporary disability is due the applicant for the period between March 2, 1998 and June 22, 1998. Northern Insurance is the insurer on the risk for this disability, and the applicant should present a detailed compilation of her claim to Northern for this period of temporary disability. Northern should make immediate payment to the applicant, less a 20 percent fee and any reasonable costs to applicant's attorney. Should a dispute arise as to the exact amount due, jurisdiction will remain with the Worker's Compensation Division to resolve such dispute.

The applicant also incurred reasonably required medical expenses (including prescription and mileage expenses) as documented in Applicant's Exhibit A. Those medical expenses incurred through April 30, 1996, are found to be attributable to the occupational disease injuries the applicant sustained while West Bend Mutual was on the risk, making that insurer liable for them. Those medical expenses incurred from May 1, 1996 through Dr. Hogan's release date of July 22, 1998, are found to be attributable to the occupational disease injuries the applicant sustained while Northern Insurance Company was on the risk, making that insurer liable for them. Expenses claimed for services, prescriptions, or mileage subsequent to July 22, 1998, have not been shown to have been attributable to any of the occupational diseases found compensable in this decision.

It is unclear from the information provided in Applicant's Exhibit A, which unpaid expenses were accrued up to April 30, 1996, and which unpaid expenses were paid by nonindustrial insurance carriers. Therefore, as soon as practicable, the applicant shall submit to West Bend Mutual a compilation of unpaid medical expenses and reimbursements due for the period up to April 30, 1996, and a compilation to Northern Insurance Company for expenses and reimbursements due for the period between May 1, 1996 and July 22, 1998. Immediately thereafter, the insurers shall make the respective payments and reimbursements. Jurisdiction will be reserved in the event the amounts are disputed.

As previously found, the applicant has not presented any credible medical evidence of a permanent sensitization attributable to any of the five dates of occupational disease injury found compensable. As long as the applicant continues to be subjected to the offending coolant and solvents at her employment with the employer, she is likely to experience new outbreaks of eczematous contact dermatitis, and thus sustain new occupational injuries. One or more of such subsequent injuries could result in a permanent sensitization. However, as of July 22, 1998, the applicant was healed without permanency from the last occupational injury proven to have occurred as of the date of hearing. Accordingly, this order will be final with respect to all issues, except with regard to calculation of the exact amounts of temporary disability and medical expense as previously noted.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order are affirmed in part and reversed in part. As soon as practicable, the applicant shall submit to West Bend Mutual Insurance Company and Northern Insurance Company of New York compilations of her claims for temporary disability and medical expense consistent with the above findings. Immediately thereafter, the insurers shall make the respective payments to the applicant, her attorney, and the non-industrial insurers.

Jurisdiction is reserved solely with respect to the correct computation of the temporary disability and medical expenses amounts. This order is final in all other respects, and the claim against Heritage Mutual Insurance Company is dismissed.

Dated and mailed March 2, 2001
bergsca.wrr : 185 : 1  ND § 3.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission partially reversed the administrative law judge's findings based on its analysis of the written medical evidence and the law. The commission has no disagreement with any credibility determination made by the administrative law judge, and found that the applicant gave credible testimony, as did the administrative law judge.

cc:
Attorney Frank M Doherty
Attorney Richard W. White
Attorney Ronald S. Aplin
Attorney Joseph Danas, Jr.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Since we are calling this injury an occupational disease with a date of injury of February 24, 1995 I do not see a reason to apportion the liability especially since all of the injury dates found by the majority occurred at the same employer. The date of disability in this case is the date of wage loss due to the injury which was the day the applicant took a vacation day because of the injury. The employee is eligible for increases in temporary total disability under 102.43(7)(c). For these reasons, I would agree with the administrative law judge and affirm his decision.

______________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The principle of multiple occupational injuries occurring successively in an employment with one employer was also recognized and applied in Eisner v. Wis-Pak, Inc., WC Claim No. 87-044815 (LIRC February 14, 1991).

(2)( Back ) See Mirro Corp. v. LIRC, No. 88-CV-53D (Wis. Cir. Ct. Manitowoc County, July 22, 1982). Also see: Arthur Larson, Larson's Workers' Compensation Law § 82.06[3] (2000).

(3)( Back ) See the applicant's Absence Report for September 25, 1997 at Applicant's Exhibit C.

(4)( Back ) Northern Insurance Company of New York came on the risk on May 1, 1996, and continued on the risk through April 30, 1998.   West Bend Mutual Insurance Company came on the risk on May 1, 1993 and continued on the risk through April 30, 1996.   Heritage Mutual Insurance Company came on the risk on May 1, 1990 and continued on the risk through April 30, 1993.


uploaded 2001/03/05