VIRGIL KALIES, Applicant
BRILLION IRON WORKS, Employer
NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer
Pursuant to authority granted in Wis. Stat. § 102.18(4)(c) the commission hereby sets aside its March 21, 2001, decision and substitutes the following therefor:
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:
The applicant worked for the employer from September of 1953 through December
of 1997. Applicant saw Dr. Andrews on August 29, 1988 and was diagnosed with
hemoptysis (the expectoration of blood or of blood stained sputum) and bronchitis.
Chest x-rays showed bilateral interstitial changes, which may be consistent with
silicosis. Applicant underwent a bronchoscopy on September 2, 1988. A
pathology report showed small fibrotic nodules with anthrocotic pigment. No silica
was found. On September 7, 1988 Dr Andrews noted that applicant's cough had improved. On December 27, 1988 Dr. Andrews noted applicant's cough had virtually disappeared and he had no dyspnea. Applicant's lungs were clear.
On July 28, 1989, Dr. Andrews noted that applicant's pulmonary status was stable. There was a chronic productive cough with white sputum, but no significant shortness of breath at rest or with exertion. Lungs showed a few crackles at both bases. Chest x-ray showed interstitial fibrosis. There was no change from his 1988 x-ray.
The employer sent applicant for an independent medical examination by Dr. Lauderdale which was performed on October 6, 1989. Dr. Lauderdale diagnosed simple silicosis based on x-rays and occupational history. Dr. Lauderdale stated that the condition of simple silicosis:
does disable him from work which would involve significant risk of further exposure to unsafe concentrations of airborne silica, using standards established by OSHA. There is medical controversy regarding the question of safety in having a patient with known silicosis working in the presence of low concentrations of silica. It is my opinion that this is safe but there is no medical proof for or against this position. It must be remembered that simple silicosis can progress in severity even in complete absence of further exposure to silica and therefore determining the contribution of exposures during different time periods cannot be exact even when serial x-rays and lung function testing is available.
Dr. Lauderdale also diagnosed chronic bronchitis and mild chronic obstructive pulmonary disease, the latter being asymptomatic. The applicant missed several hours of work to attend the independent medical examination. He had never before missed work time due to his work-related condition.
The applicant continued to treat for respiratory problems with complaints of chronic cough and dyspnea. The applicant retired from his employment with the employer in 1997. His last day of work with the employer was December 23, 1997. The applicant attended an independent medical examination performed by Dr. Effros on June 15, 1999. Dr. Effros attributed his silicosis and bronchitis to his work. Dr. Effros indicated applicant needed to avoid further exposure to silica, dust and fumes. He was restricted from heavy labor. Applicant again attended an independent medical examination by Dr. Lauderdale on September 21, 2000. Dr. Lauderdale again diagnosed simple silicosis and chronic bronchitis, both related to his employment.
The applicant's doctor, Dr. Andrews, and Drs. Lauderdale and Effros agree that the applicant's silicosis was caused solely by his work for the employer and that he has sustained a 30% permanent partial disability as a result of his work exposure to silica dust. Dr. Lauderdale has opined that 95% of applicant's disability is attributable to occupational exposure before his 1989 examination. Dr. Lauderdale further opined that exposure after 1989 aggravated and accelerated his pulmonary problem beyond its normal progression and attributed 5% of his disability to his exposure after that date.
The statutory subsection defining date of injury for occupational disease is Wis. Stat. § 102.01(1)(g)(2.) which reads:
(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.
The historical standard for determining "date of disability" in an occupational disease case has been to determine the first date of wage loss attributable to the effects of the occupational disease. Royal-Globe Insurance Company v. DILHR, 82 Wis. 2d 90, 93, 260 N.W.2d 670 (1978); Wagner v. Industrial Commission, 273 Wis. 533, 561, 79 N.W.2d 264 (1969). Case law has established the conclusive presumption that an occupational disease has ripened into a disabling condition when the employee first suffers a wage loss due to an occupational disease. This conclusive presumption was created because of the difficulty of determining when a disease ripens into a disabling condition. General Casualty Company of Wisconsin v. LIRC, 165 Wis. 2d 174, 181, 477 N.W.2d 322 (Ct. App. 1991). The concept of wages loss has been broadened to include lost work time attributable to the occupational disease, even though the wages for such lost work time may subsequently be recompensed. General Casualty at 182. However, the wage loss must be "due to an occupational disease." In considering whether the wage loss is due to the occupational disease the commission believes the focus should be on what the court in Kohler Co. v. DILHR, 42 Wis. 2d 396, 400, 167 N.W.2d 431, 432 (1969), described as the most important question--When did the occupational disease ripen into a disabling affliction?
The applicant argues that he did not lose work time when he saw the IME in 1989 "due to the occupational disease" but due to the fact that the employer made him go to an independent medical examination. The commission agrees.
The commission has previously declined to find a date of disability based on periodic x-rays done at an employer's behest to monitor ongoing silicosis, in the absence of any actual work restrictions or physical incapacity to work. Kenneth Rothenberger v. Murray Manufacturing, et. al, WC Claim No. 1995051612 (Jan. 29, 1999). In that case, the commission noted that the General Casualty 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, is laid off, or has switched to employment which no longer contributes to the occupational disease. [Citations omitted.]
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?' [Kohler, supra, at 42 Wis. 2d 400.] 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. [Montello Granite Co. v. Industrial Commission, 278 N.W.2d 391, 399 (1938).]
Neither applicant's treatment nor the independent medical examination resulted in lost time due to physical incapacity to perform his work or due to significant restrictions on his ability to perform his work. The applicant was not incapacitated or disabled due to silicosis during his employment. Dr. Lauderdale credibly opined that applicant's work exposure after October 6, 1989, aggravated applicant's disease beyond its normal progression. Therefore, the date of disability is the applicant's last day of work for the employer, December 23, 1997.
It is not permissible to apportion disability in an occupational disease case. There may be cases where a worker with an occupational disease has multiple dates of injury (arising from physical incapacity to work and wage loss) causing permanent disability, then a recovery and subsequent disability with subsequent exposure. Zurich Gen. Acc. & L. Ins. Co. v. Industrial Comm., 203 Wis. 135, 233 N.W. 772 (1930). In such a case, the insurer on the risk at the time of the earlier date of injury is liable only for the actual disability as it exists at that earlier date of injury, not for some percent of later-arising disability occurring after the subsequent date of injury which may be attributed to the occupational exposure before the earlier date of injury.
The commission has in the past, most notably in Eisner v. Wis-Pak, WC Claim No. 87-044815 (LIRC Feb. 14, 1991), assigned liability based on multiple dates of injury based not on disability as of those dates, but upon a medical opinion apportioning percentages of disability to different periods of employment. After reviewing the statute and the relevant case law the commission concludes that it engaged in prohibited apportionment in Eisner. The commission will no longer follow that decision to the extent it purports to authorize such apportionment.
Dr. Lauderdale's opinion that 95% of the disability is attributable to exposure before 1989 and 5% attributable to exposure after October 6, 1989, does not establish two dates of disability. Such opinion constitutes apportionment without regard to whether disability had been assessed because applicant lost work time or was incapacitated as of the time of the October 6, 1989, medical examination.
Applicant has sustained a 30 percent disability as compared to permanent total disability and incurred reasonable and necessary medical expenses up to the date of hearing.
Dated and mailed May 22, 2001
kalievi . wpr : 132 : 6 : ND § 3.4
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Attorney George Burnett
Attorney Jeffrey J. Strande
Attorney Eric Hobbs
Appealed to Circuit Court. Affirmed June 14, 2002. Appealed to Court of Appeals. Affirmed, unpublished summary disposition, April 16, 2003. Petition for Supreme Court review denied, July 9, 2003.
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