THOMAS MCGAW, Applicant

STAINLESS FOUNDRY & ENGINEERING, Employer

VIRGINIA SURETY COMPANY INC, Insurer

TIG INSURANCE COMPANY, Insurer

WORK INJURY SUPPLEMENTAL BENEFIT FUND

In March 1999, the applicant filed an application for hearing, claiming permanent total disability from occupational exposure to foundry dust. A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on June 14, 2000.

Prior to the hearing, the employer, TIG Insurance Company (TIG Insurance), Virginia Surety Company, Inc., (Virginia Surety), and the Work Injury Supplemental Benefit Fund (the Fund) conceded jurisdictional facts, an average weekly wage of $519.03, and an injury arising out of the applicant's employment with the employer, while performing services growing out of and incidental to his employment with the employer. At issue before the ALJ was the applicable "date of injury" in this case, the nature and extent of the applicant's disability from his injury, and the respective liability of the insurers and the Fund.

The ALJ found Virginia Surety liable based on an August 25, 1997 date of injury, and found also that the applicant was permanently and totally disabled. He dismissed TIG Insurance and the Fund from the action. Virginia Surety filed a timely petition for commission review.

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:

1. Facts.

The applicant was born in 1936. He began working for the employer as a grinder in 1954. He worked there continuously until 1997, except for two years in the armed services in the 1950s. During most of his employment he was a grinder, which involved grinding excess metal off the stainless steel castings. This was a dirty job, which involved exposure to sand and dust. In the mid-1980s, the applicant started doing "finish" or "high-tech" grinding which might have been a little less dusty, but still resulted in daily exposure to dust and sand.

Almost annually in the 1960s, 1970s and 1980s, the applicant had his hearing tested and his lungs x-rayed. A van would come to the factory, and the testing would be done there on site. On some occasions, the applicant would have to see a doctor for a check-up as a result of a showing on the x-ray. Transcript, pages 35-36, pages 53-54.

One of these abnormal x-rays led to examination of the applicant by Richard G. Harbecke, M.D., on October 3, 1983. See Virginia Surety exhibit 3. The employer sent the applicant to Dr. Harbecke. Transcript, pages 53. The doctor noted that the applicant had undergone periodic x-rays and that the most recent one was felt to show more abnormalities than in the past, including hilar adenopathy and nodular interstitial markings. However, the doctor also noted the applicant had essentially no symptoms.

The doctor's diagnostic impression, after reviewing the x-rays, was probable early silicosis. He wanted to do further testing, which led the doctor to do a bronchoscopy for which the applicant was hospitalized overnight. This showed chronic interstitial pneumonitis without granulomas or typical changes expected with silicosis, although silicosis could not be ruled out. The doctor's discharge diagnosis was interstitial pneumonitis, etiology not determined but possibly due to silicosis. The doctor recommended periodic follow-up.

In a letter to Stainless Foundry in March 1984, Dr. Harbecke reported that the applicant had early, nondisabling silicosis. The doctor felt that the dust control measures that the Stainless Foundry had already implemented would be adequate to prevent progression of the silicosis, but to be doubly safe, the doctor recommended the applicant wear a mask while chipping or grinding. State exhibit 1.

In another letter dated August 30, 1984, Dr. Harbecke described the applicant as quite stable, and saw no need to change his work habits. Exhibit D.

The medical record includes an x-ray done in 1985. Due to nodular densities, repeat testing was recommended; whether this was done is not certain.

In 1990, the applicant was examined by Dennis Shultz, M.D., again at the request of the employer. The doctor noted "old" abnormal findings which would be due to silica exposure at work. He did not expect the development of future complaints, found the applicant qualified to use a respirator at work, and did not recommend any restrictions for his usual job. Exhibit D.

The next medical note comes from a pulmonolgist, Marc Rasansky, M.D., on December 5, 1991. Virginia Surety exhibit 5. This treatment, again, was apparently at the employer's request. See transcript, pages 35-37, 67-68 and 80. Certainly, Dr. Rasansky reported that during his examination in 1991 the applicant denied respiratory symptoms of any type.

Dr. Rasansky noted the bronchoscopy done earlier, and x-rays from 1983, 1985, 1989, and 1991. The x-rays, the doctor thought, showed a gradual progression consistent with complicated silicosis. The doctor believed that continued exposure was dangerous. He thought it would be optimal to move the applicant to an area where he would have no dust exposure whatsoever. The applicant told the doctor, however, that with the advent of his respirator and improved ventilation system, he did not feel he was having significant exposure. The applicant himself attributed most of his exposure to a period of many years when the ventilation system was not up to date, and respirators were not generally available. Dr. Rasansky would not quarrel with that, and felt it quite likely the applicant's current findings were from past exposure.

Regarding ongoing exposure at the foundry, Dr. Rasansky thought that if there was no dust exposure under the present working conditions, the applicant's condition was probably due to past exposures. If there was significant or ongoing exposure, however, Dr. Rasansky recommended the applicant move to another area of the plant where he would not be exposed. Dr. Rasansky left the issue of ongoing exposure up to plant nurse Marion Gries, R.N.

The applicant in fact continued to work. The employer devised a plan to safeguard his pulmonary health. The applicant was to be provided with respiratory protection equipment, and was to be kept out of work areas where there was excessive dust exposure. See Virginia Surety exhibit 6, January 16, 1992 report of Marion Gries, R.N.

Thereafter, an x-ray was done of the applicant's chest on December 16, 1991. The radiologist performing the test recommended clinical correlation to determine whether the applicant had an infectious disease as opposed to sarcoidosis or an inhalation disease. A stress test was done on that date; it showed a decreased tolerance for exercise. Virginia Surety exhibit 5.

An x-ray done in early 1992 showed bilateral interstitial infiltrates most likely chronic, with pneumoconiosis a consideration. An x-ray done in 1993 was described as clinically significant, and showed changes when compared to prior x-rays. Exhibit D. An x-ray done in January 1994 was also quite compatible with silicosis.

Periodically between July 1992 and October 1996, the applicant saw his family doctor, Gary Lesko, M.D., to treat hypertension. The doctor did not mention silicosis in any of these visits. The applicant underwent a stress test in April 1996; it showed nothing unusual and the reporting cardiologist did not mention silicosis. See TIG exhibit 3.

On February 5, 1997, the applicant was again seen by Dr. Rasansky; this visit is recounted in a "to whom it may concern" letter dated March 2, 1997; Virginia Surety exhibit 6. The doctor noted the applicant was "rather unaware" of symptoms, though he occasionally became short of breath.

Dr. Rasansky observed that, while the applicant gave a very minimal history of significant lung problems, he had a very serious disease. Noting the applicant's employment, and the x-rays, he believed the entire picture was most consistent with progressive massive fibrosis, complicated silicosis, and underlying pulmonary hypertension. He felt the applicant grossly underestimated his symptoms and degree of disability.

Noting that the applicant wore a respirator, Dr. Rasansky did not adamantly insist he discontinue work at that point, but did insist he retire at age 62. He thought the applicant would develop increasing and more progressive symptoms over the years.

The substance of the February 5, 1997 office visit was also recounted in an April 9, 1997 letter to Concentra Occupational Health Center. This reports the applicant's complaints of becoming tired at work, with intermittent shortness of breath. Dr. Rasansky noted the applicant's disease was far out of proportion to his symptoms and his pulmonary functions, describing the pulmonary function studies as "remarkably well preserved" and not very abnormal. Dr. Rasansky also states that most of the damage was done with early exposure before the employer adopted stringent respirator and ventilator requirements (at least as described by the applicant.) However, Dr. Rasansky also noted that even as of the date of the February 1997 examination, the applicant did not always wear his respirator when he performed his duties.

On June 24, 1997, Dr. Rasansky again saw the applicant. Virginia Surety exhibit 5. Dr. Rasansky listed a diagnosis of advanced silicosis, and noted symptoms of dyspnea occasionally at work. The doctor's handwritten note for this date states:

"I feel he is impaired 2? [secondary to] Silicosis
do not work hot humid days."

Virginia Surety exhibit 5.

In a "to whom it may concern" letter dated July 10, 1997, Dr. Rasansky reiterated his diagnosis of pulmonary fibrosis secondary to silicosis. The doctor felt that while the applicant's "pulmonary function studies are relatively preserved" his current dyspnea was totally on the basis of silicosis. He reiterated his instruction the applicant not attend work on hot, humid days. He felt if the applicant could work outside the plant where there would be no dust exposure, his health would improve. TIG exhibit 1.

Indeed, the applicant testified that in the last three years of his employment, he began to have a hard time breathing, and was starting to struggle with it. He did not want to admit the problem, however, and never lost work time due to the symptoms. Transcript, page 45.

On August 25, 1997, the employer required the applicant to begin a medical leave because of his health problems. The employer's president and personnel officer told him that they had been in contact with Dr. Rasansky, that his lungs were bad, that he was having trouble, and that he could go on paid leave through February 1998. He agreed. Transcript, pages 60-61. The employer paid him full wages during the leave to March 1, 1998, the first month beginning after his 62nd birthday in February 1998. Exhibit D.

After the applicant stopped working, in October 1997, the applicant again saw his family doctor, Dr. Lesko, about hypertension. On this occasion, the doctor noted the applicant's history of silicosis, but no symptoms from it. Virginia Surety exhibit 5.

Indeed, prior to his last day of work in August 1997, the applicant never missed any time because of symptoms from his condition. Despite Dr. Rasanksy's suggestion in June 1997 that he not work on hot humid days, the applicant struggled through them. His duties were never modified. Transcript, page 85. He had nearly perfect attendance and missed no time from his silicosis condition except for the x-rays and doctor visits required by the employer. Transcript, pages 35 and 67.

The applicant did, of course, leave productive work to have the x-rays done on the job site. He also took vacation days and floating holidays to treat with various doctors who saw him, including the bronchoscopic treatment with Harbecke in 1983 (transcript, page 54) and the treatment with Dr. Rasansky (transcript,
page 67), including specifically, the visits in February 1997 (Virginia Surety exhibit 6) and June 1997 (transcript, page 68.)

The record includes formal expert medical opinion from two sources. Treating doctor Rasansky diagnosed conglomerate silicosis with progressive massive fibrosis, and early pulmonary hypertension with a loud P-2. He also opined that the applicant's lung problems were contributed to in significant part by the applicant's exposure at the employer's foundry. See exhibit A. In his attached January 1999 narrative report, the doctor opined the applicant's condition was clearly induced by silicosis and silica exposure. Dr. Rasansky subsequently opined that the applicant could not work in any environment where there is exposure to dust or vapor fumes, and that lifting was out of the question. He noted too that the applicant would become progressively short of breath with walking. Dr. Rasansky opined those restrictions were a direct result of the applicant's exposure at the employer's foundry until August 20, 1997. Exhibit B.

Virginia Surety retained Stuart A. Levy, M.D., whose opinion is at Virginia Surety exhibit 6. He too opined the applicant had conglomerate silicosis, for which there was no treatment, and for which there would be no improvement. He allowed work, however, within restrictions set out at page 6, item of 4, of his report. He rated permanent partial disability at 30 percent compared to permanent total disability, and opined it would gradually increase in the future. He opined the applicant's workplace exposure from his employment for the employer was a material contributory causative factor in the onset and progression of the applicant's condition.

Dr. Levy also opined that exposure between 1954 and approximately 1986 (when the employer took measures to reduce silica dust levels below the "permissible exposure limit"):

"would have been sufficient to account for the development of silicosis in [the applicant.] The mechanism for the development of silicosis explains the progression of fibrosis even in the absence of further exposure as a result of either improved environmental measures or even leaving the workplace. . The released particles are ingested by other viable macrophages and the process becomes self-perpetuating explaining the well-described progression of silicosis even in the absence of further exposure."

Virginia Surety exhibit 6, report of Levy, page 7.

The parties also provide opinions from vocational experts regarding the extent of the applicant's permanent disability on a vocational basis, or his loss of earning capacity, due to his condition. The applicant's expert, Michael Campbell, opined the applicant is permanently and totally disabled on an odd-lot basis under Dr. Rasansky's restrictions against exposure to dust or vapors, against lifting, and which indicate the applicant would become progressively short of breath with walking. Virginia Surety's expert, Jackie Roman, found a 40 to 60 percent loss of earning capacity under the restrictions of Dr. Rasansky and Dr. Levy, though she admitted Rasansky's restrictions could be read to rule out any employment and make the applicant permanently and totally disabled. TIG Insurance's expert, Leanne Panizich, opined the applicant had a 25 to 30 percent loss of earning capacity under Dr. Levy's restrictions, and a 50 to 55 percent loss of earning capacity under Rasansky's restrictions. However, Ms. Panizich, too, noted Rasansky's insistence that the applicant retire at age 62 could be read as prohibiting any work and resulting in permanent total disability.

2. Discussion.

The parties agree that the applicant is disabled from silicosis. The parties also agree that an appreciable period of workplace exposure to dust and sand while working for the employer caused applicant's disability. In other words, the applicant's disability in this case was caused by "occupational disease" rather than a single traumatic accident or event. The employer's liability is not in doubt; the dispute here is about which of its insurers must pay, and how much.

As the ALJ observed, the date of disability in an occupational disease case is fundamental. The supreme court has held: "On a claim for benefits for permanent disability, most important is the question, When did the occupational disease ripen into a disabling affliction?" Kohler Co. v. DILHR, 42 Wis. 2d 396, 400, 167 N.W.2d 431, 432 (1969). The reason the date of disability is important is because it, among other things, determines which parties are liable for the consequences of occupational disease. The supreme court has held that:

"If a single employer has had successive insurers, the liability is imposed upon the insurer whose policy was in force at the time the disability occurred."

Travelers Ins. Co. v. ILHR Dept., 85 Wis. 2d 776, 782 (1978). Stated another way, "the company who had insured the compensation liability at the time the disability had occurred is the one that must pay the compensation awarded." Employers Mut. L. Ins. Co. v. McCormick, 195 Wis. 410, 415 (1928).

In determining the date or dates of disability, the starting point is Wis. Stat. § 102.01(2)(g), which provides:

"102.01(2)(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."

The department's interpretative footnote provides:

"Compensation benefits may be recovered for disability which occurs after the severance of the employer-employee relationship, even though there was neither wage loss, nor time loss during the time that the employee was in service."

DWD's Worker's Compensation Act of Wisconsin, with amendments to January 1, 2000, footnote 4.

In this case, the ALJ essentially found one date of disability, and that that was the last day of work with the employer. Consequently, the ALJ held Virginia Surety, the insurer on the risk on the applicant's last day of work, liable. Virginia Surety, however, suggests earlier dates of disability. Virginia Surety points out that the applicant had a lot of treatment for his condition, and that he lost wages or work time to undergo the treatment. Indeed, as far back as 1983, the applicant took vacation time from work to undergo the examination by Dr. Harbecke and his bronchoscopy.

The applicant's early treatment for the silicosis is significant because the court of appeals has held that

"Because of the difficulty in determining when an occupational disease ripens into a disabling condition, the earlier cases created a conclusive presumption that that point is reached when the employee first suffers a wage loss due to an occupational disease. See, e.g., Montello Granite Co. v. Indus. Comm'n, 227 Wis. 170, 186-88, 278 N.W. 391, 398 (1938)."

General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 181 (Ct. App. 1991).

A conclusive presumption, of course, is an irrebutable presumption. However, the commission declines to read General Casualty to eliminate completely the need to consider when the occupational disease has ripened into a disabling condition. Rather, the commission itself has held that "the date of disability has consistently been interpreted by courts to be the first wage loss through lost work time attributable to the effects of occupational disease." Adams v. Cub Foods, WC Claim no. 91-074342 (LIRC, March 31, 1993) (italics supplied.)

Adams indicates that the wage loss used to set a date of disability may not just be somehow associated with the occupational disease in the broadest sense, but must be "attributable to the effects of" the occupational disease. In other words, Adams suggests the wage loss must be due to the symptomatic effects of the work injury, not simply the employer's desire to monitor a nondisabling condition. One could conclude from Adams that an employer cannot convert a nondisabling silicosis into a disabling condition with a "date of disability" simply by requiring a medical examination, an x-ray or other diagnostic test. Instead, the occupational disease must have "ripened" into a disabling condition before wage loss associated with the condition will set a date of disability.

Indeed, as the parties point out in their briefs, 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 case no. 1995051612 (January 29, 1999). In that case, we 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).]"

See also Virgil Kalies v. Brillion Iron Works, WC claim no. 1998-024333 (LIRC, May 22, 2001).

The supreme court has held that "where there is wage loss from the occupational disease before the termination of employment, the date of the commencement of such wage loss establishes the date of injury." Royal-Globe, Ins. Co. v. ILHR Department, 82 Wis. 2d 90, 93 (1977), quoting Wagner v. Industrial Commission, 273 Wis. 553 (1956). However, in neither Wagner, Royal-Globe, nor General Casualty, did the court actually find a date of disability based on an employer- required examination for monitoring a nonsymptomatic condition. In Wagner, the court used an April 1951 date of injury, the date on which the injured worker's dermatitis condition "was so bad that he was forced to quit work," id., at 273 Wis. 56. In Royal Globe, the commission found a date of disability in April 1973 upon the injured worker's hospitalization for treatment of silicosis. (In that case, the applicant had been under the care of physicians since 1969 when he began having respiratory problems and was diagnosed with a spot on his lung; the court does not mention if this treatment resulted in wage loss.) Id., at 82 Wis. 2d 90. In General Casualty, the commission and the court found a December 1979 date of disability from an occupational back disease when the worker began seeing a doctor for recurrent low back pain, and lost work time but was reimbursed by the employer. (1)

Finally, the General Casualty court cites Montello Granite Co. v. Industrial Commission, 227 Wis. 170, 186-88, 278 N.W. 391, 398 (1938), for the proposition that the difficulty in determining when an occupational disease "ripens" into a disabling condition led to the conclusive presumption that the point of "ripening" is reached when the employee first suffers a wage loss due to the occupational disease. Montello refers to the former rule that there could be no disability in an occupational disease case without wage loss. Montello goes on to explain how that rule was affected by a 1933 law change (2) that allowed a date of injury on the last day of work for the employer whose employment caused disability, when disability occurs as a result of occupational disease after the end of the employment relationship. Montello says nothing about a "conclusive presumption" meant to ease the finding of when an occupational disease ripened into a disabling condition.

On the other hand, the Montello court does state:

"When disability, i.e., actual physical incapacity to work at all, or actual physical incapacity to work more than part of the time, occurs as a result of an occupational disease, after the relation of the employer and employee has ended, the 1933 amendment decrees that such disability shall be compensated by the last employer whose employment caused disability. `Employment caused disability' means that employment which caused it or to some appreciable extent furthered its progress."

Montello, at 278 N.W. 299. Thus, Montello recognizes the importance of actual physical incapacity as well as wage loss. The commission reads Montello to suggest that physical incapacity must be present to establish a date of disability, and may not be presumed simply from wage loss. Consequently, the subsequent supreme court decision in Kohler emphasized that the most important question on a claim for permanent disability in cases of occupational disease is "when did the occupational disease ripen into a disabling condition?" Kohler, supra, at 42 Wis. 2d 396. In Kohler, the court did not point to evidence of annual x-rays required by the employer as lost work time setting the date of "ripening," but rather to the opinions of the medical experts. In other words, the commission concludes a "date of disability" for occupational disease may not be based just on a doctor's visit occasioned by an occupational disease which has not yet "ripened" into a disabling condition.

In this case, there was no date of disability until the applicant stopped working. The early x-rays and treatment were diagnostic only. In 1984 Dr. Harbecke in specifically described the applicant's condition as non-disabling and stable. By 1991, Dr. Rasansky was obviously more concerned, but he did not set any meaningful restrictions (that is, restrictions that actually affected the applicant's employment) until June 1997 at the earliest, when he recommended the applicant not work on hot humid days. Indeed, in April 1997, Dr. Rasansky considered removing the applicant from work, but declined to do so until he was 62.

The commission emphasizes "meaningful restrictions," because while the doctors who treated the applicant periodically stated that he should wear a respirator or not be exposed to too much dust, these do not seem like individual restrictions that affect the applicant's performance of his job in any real way. The applicant was already wearing a respirator, and the employer had already reduced dust levels in the plant, when the applicant's silicosis was first diagnosed in 1983. Presumably, even a healthy person should not be exposed to unsafe levels of silica and dust; such a "restriction" really does not denote disability.

The commission also considered the restriction against working on hot humid days, set by Dr. Rasansky in June 1997. This would be a restriction that, in the words of the Montello court, establishes actual physical incapacity to work more than part of the time, i.e., and a disability. The problem here is that the applicant denies ever missing work due to this restriction. In other words, the restriction never really caused any wage loss. The most that can be said is that it was set during an employer-required doctor's visit which itself caused wage loss. But that is not the same as saying the restriction resulted in some physical incapacity to work or a disability causing wage loss.

In sum, the commission finds the date of disability in this case to be the applicant's last day of work, August 25, 1997. It is only at that point that the applicant actually sustained any wage loss from the disabling effects of his disease. Applying the rule from Travelers Ins. -- that in cases of successive insurers of one employer the entire liability rests upon the insurer whose policy was in force at the time the disability occurred -- Virginia Surety is the liable insurer in this case.

The commission also credits Dr. Rasansky's opinion that the applicant could not work in any environment where there is exposure to dust or vapor fumes, that lifting was out of the question, and that the applicant would become progressively short of breath with walking. As noted above, Dr. Rasansky also opined the applicant should retire at age 62. Dr. Levy did allow the applicant to return to certain types of factory work or sedentary employment, but he noted too that the applicant's permanent disability on a functional basis would continue to progress.

The applicant was almost 62 when he stopped working. He attended high school into the twelfth grade, but did not graduate, and does not possess a GED. His transferable skills are quite limited given that he can no longer perform the type of work he performed for the employer, his sole employer outside military service, since 1954. The commission concludes that, given the combination of these and the other factors in Wis. Admin. Code § 80.34 with his permanent work restrictions, the applicant is so injured that he can perform only those services which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. In other words, the applicant is permanently and totally disabled on an odd-lot basis. See Balczewski v. DILHR, 76 Wis. 2d 487, 493 (1977).

3. Award.

The commission concludes that the applicant has been permanently and totally disabled as of August 25, 1997. However, the employer paid him his full wage until March 1, 1998, which is the date his compensation for permanent total disability begins. As of March 1, 1998, then, the applicant's entitlement to permanent total disability compensation began to accrue at the weekly rate of $346.02(two-thirds of the conceded average weekly wage as of August 25, 1997, of $519.03), and shall continue to accrue for as long as he may live.

As of May 28, 2001, 169 weeks and one day of permanent total disability compensation have accrued for a total of $58,535.05. However, the applicant approved an attorney fee, set under Wis. Stat. § 102.26 and Wis. Admin. Code § DWD 80.43, at twenty percent of the applicant's award for the first 500 weeks of compensation paid to the applicant. The fee on the accrued portion of the award equals $11,707.01; the applicant's attorney shall also be entitled to a fee at the monthly rate of $299.86 until the applicant's death or September 30, 2007, whichever occurs first. The applicant's attorney shall also be entitled to reimbursement of his costs in the amount of $759.72.

The amount payable to the applicant as of May 28, 2001 is $46,068.32, which equals the total amount accrued ($57,900.68), less the attorney fee thereon ($11,580.14), and less the attorney's costs ($759.72). Thereafter, the applicant shall be entitled to continuing compensation for as long as he may live, in the amount of $1,199.57 to September 30, 2007, and in the amount of $1,499.41 thereafter.

Because the applicant may need additional medical treatment and may be entitled to other benefits pursuant to Wis. Stat., ch. 102., this order shall be left interlocutory.

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

The findings and order of the administrative law judge are modified to conform to foregoing and, as modified, are affirmed.

Within 30 days from the date of this order, the employer and Virginia Surety Company, Inc., shall pay all of the following:

1. To the applicant, Thomas McGaw, Forty-six thousand sixty-eight dollars and thirty-two cents ($46,068.32) in disability compensation.

2. To the applicant's attorney, Michael Gillick, the sum of Eleven thousand seven hundred seven dollars and one cent ($11,707.01) in attorney fees and Seven hundred fifty-nine dollars and seventy-two cents ($759.72) in costs.

Beginning on June 28, 2001, and continuing on the twenty-eighth day of each month thereafter, until compensation is paid through September 30, 2007 or the day of the applicant's death, whichever occurs first, the employer and Virginia Surety Company, Inc., shall pay all of the following:

1. To the applicant One thousand one hundred ninety-nine dollars and fifty-four cents ($1,199.54) per month in disability compensation.

2. To the applicant's attorney Two hundred ninety-nine dollars and eighty-six cents ($299.86) per month in fees.

Beginning on October 1, 2007, the employer and Virginia Surety Company, Inc., shall pay the applicant One thousand nine hundred and ninety-nine dollars and fifty-four cents ($1,999.54) per month for life.

The application is dismissed as to TIG Insurance Company and as to the Work Injury Supplemental Benefit Fund.

Jurisdiction is reserved for such other findings and awards as may be warranted.

Dated and mailed May 22, 2001
mcgawth . wrr : 101 : 3 ND § 3.4  § 3.43 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission, like the presiding ALJ, found only one date of injury in this case, that being the applicant's last day of work for the employer. However, even if the commission were to find a date of disability simply on the occurrence of wage loss for the employer-required doctor visits following the diagnoses of silicosis, Virginia Surety would remain liable for the permanent total disability at issue here. Stated another way, assuming a date of disability occurred in 1983 or later with the diagnostic testing or medical follow-up during the course of the applicant's employment, the applicant nonetheless thereafter returned to work with more exposure to sand and dust. As explained below, Dr. Rasansky credibly opined that exposure through the end of the applicant's employment was causally-related to the applicant's ultimate disability, giving rise to a new date of injury/disability with the end of employment.

The supreme court in Zurich (a tuberculosis from dust exposure case) said:

"Upon a full reconsideration of the entire matter, it is considered that it should be held that the `time of accident' within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. 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. If, however, there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employee is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account.

Zurich, at 203 Wis. 146-147. (3)

In this case, assuming the commission were to regard the prior treatment dating back to 1983 as dates of "disability," the commission would conclude the applicant "recovered" to the extent a recovery is a prerequisite to finding additional or later dates of disability under Zurich. In discussing what constitutes "recovery," the commission has previously held:

"The commission concludes that the meaning of the term `recovery' in occupational disease cases is intertwined with the factual circumstances to which it is applied. An individual may 'recover' in an occupational disease process by reaching a healing plateau and returning to work after sustaining one of a series of traumatic injuries, or after sustaining a period of disability due to work exposure. In Zurich, the employee recovered after the latter. In such cases, until the occupational disease process has reached completion there is no occupational disease date of injury, and the acute injuries and recoveries merely represent contributory elements in the occupational disease process. Based on the particular facts and circumstances of the applicant's case, the commission finds that his acute injuries, disabilities, and periods of recovery prior to November 6, 1991, were contributory elements in his occupational back disease process. His occupational back disease process did not reach completion until November 6, 1991.

"In other cases, an occupational disease process may reach completion and liability for compensation become fixed. However, subsequent work exposure may change the nature of the occupational disease or accelerate it. Such change or acceleration would constitute a new occupational disease, and one could call the period between the first and second occupational diseases a `recovery' period."

Bruendl v. Simplicity Mfg. Co. Inc., WC Claim no. 91070786 (LIRC, November 25, 1996). That case, dealing with repeated back injuries ultimately resulting in an occupational back, suggests some fluidity in dealing with what is "recovery."

A fluid approach seems particularly apt where, as here, there is no real disability in the sense of physical incapacity from work until the last day of work. The commission notes that if a date of disability were to be based on employer-required medical examinations without any real incapacity from work, it seems only fair to be relatively lax in determining what constitutes a "recovery." In other words, even assuming dates of disability injury resulting from compensated time off work for treatment in 1983-84, 1991, 1994, or early 1997, the applicant "recovered" in the sense that he returned to work. The last day of work would also be the final date of disability assuming the employment remained causative to the last day.

Was the applicant's employment at Stainless Foundry in this case causative up to his last day of work? In its brief, Virginia Surety asserts that the there is no medical proof that the applicant's employment during Virginia Surety's policy was materially causative to the progression of the applicant's condition. However, the commission concludes that the applicant's continued employment, up to his last day of work, remained a material contributory causative factor in the progression of his disease.

Treating doctor Rasansky stated his restrictions are due to the entire course of employment. See exhibit B. Even IME Levy did not completely rule out effect of subsequent work; he merely said the early exposure was enough to cause the disease. While that may be true, that is not the same as saying that the subsequent exposure had no effect on the disease's progression. As of 1990, anyway, treating Dr. Shultz did not expect the development of future complaints beyond the applicant's then nondisabling silicosis, assuming the applicant wore a respirator. Indeed, the medical experts uniformly recommended the applicant wear a respirator, even after he had developed simple silicosis, suggesting that continued exposure to silica dust would still be harmful. Nonetheless, as Dr. Rasansky observed in April 1997, the applicant was not always able to wear his respirator mask when he worked.

Dr. Levy's opinion, of course, does suggest that the applicant may have been well on the road to permanent total disability when he lost work time to undergo treatment in the years before his last day of work. However, the commission cannot conclude that the insurers on the risk for those years are liable for some part of the permanent total disability compensation awarded here, even if prior dates of disability were found. Disability may not be apportioned among prior employers or prior insurers, even when the prior employer or insurer was on the risk for employment which contributed to, or in part caused, the occupational disease. The supreme court has held:

"Judicial construction of [Wis. Stat. § 102.01(2)(f), now (2)(g)] has imposed the entire liability upon the last employer whose employment caused disability resulting from the disease, without contribution for prior employers whose employment also caused the disease. The liability of each employer's insurers is determined in the same manner. If a single employer has successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred."

Travelers Ins. Co. v. ILHR Dept., 85 Wis. 2d 776, 782 (1978).

The rule prohibiting the time-of-disability insurer from obtaining contribution from prior insurers has been explained as not working injustice against any individual insurer or carrier because the law of averages will equalize the burden. Employers Mut. L. Ins. Co. v. McCormick, at 195 Wis. 415-16. The continuing viability of the no-apportionment rule, at least in cases of successive Wisconsin employment, has been recognized in General Casualty, supra, at 165 Wis. 2d 174, note 4. Indeed, Wis. Stat. § 102.175(1), which permits apportionment, does so only in cases of accidental injuries. Beyond that, the commission does not read any expert medical opinion, including Dr. Levy's, to establish how disability could be apportioned. (4)

Moreover, it could be argued that the requirement that the continued occupational exposure be causative, in the sense that it must contribute to the progression of the condition, applies when attempting to determine which of successive employers is liable but not to successive insurers of a single employer. In Travelers Ins., the court held that the entire liability was placed on the last employer whose employment caused the disease, but went on to state that if "a single employer has successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred." Id., at 85 Wis. 2d 782. (5)  As explained in the body of this decision, the applicant's disability in this case occurred with his last day of work, at least that is when his permanent total disability occurred.

Finally, the Fund, particularly, urges the commission to adopt the "last injurious exposure" rule as a means of determining the liable insurer in cases of successive insurers for the liable employer. In the part of his treatise discussing the rule, Professor Larson hypothesizes three solutions to the successive insurer problem:  hold the first insurer liable, hold the last insurer at risk at the time of injury liable, or make the insurers share liability. 9 Larsons Workers Compensation Law, § 153.01 [1] and [2]. The second possible solution, the one preferred by Professor Larson, gives rise to the "last injurious exposure" rule.

The rule, as described by Professor Larson, assigns liability to the insurer whose time at risk coincides with the time of causation, or places full liability on the carrier on the risk at the time of the most recent injury that "bears a causal relation" to the disability. In such cases, assuming the two injuries are not entirely separate, there is no apportionment even though the disability following the second injury is less severe than it would have been had it not been for the first. 9 Larsons Workers Compensation Law, § 153.02 [1] and [2].

However, the last injurious exposure rule does not seem to be a simple substitute for determining the date of disability; rather it is used to identify the liable insurer once that date has been set. Indeed, Professor Larson states:

"[O]ccupational disease cases typically involve long periods of exposure during which the disease is latent or even nonsymptomatic. In the search for an identifiable instant in time that can be used to determine when the `injury' occurred for the purposes of determining which year's statute to apply, and who is the liable insurer for the purposes of the last injurious exposure rule, the date of disability is frequently chosen. Once the date of disability is determined, the determination of which insurer is liable is accomplished by simply searching backward to find the last time when the claimant was exposed to the disease-causing substance."

Larson, supra, at § 153.02[6][b].

The commission declines formally to adopt the last injurious exposure rule as a way to determine which is the liable insurer, at least in this case. Travelers and Employers Mut. L. Ins. Co. v. McCormick suggest that only the insurer on the risk on the date of disability may be held liable. Adopting some other rule, at least under the facts of this case, might run against already-announced court holdings.

The commission acknowledges that Virginia Surety may perceive unfairness in the result in this case. It must bear all the liability, even though employment while other insurers were on the risk contributed to the applicant's disability. Moreover, Virginia Surety was only on the risk for a very brief period of the applicant's long term causative exposure. Nonetheless, the courts have held that the law of averages will even out the apparent unfairness in these cases. See Employers Mut. Ins. Co. v. McCormick, supra, and North River Ins. v. Manpower Temp. Services, 212 Wis. 2d 63 (Ct. App. 1997).

cc: 
Attorney Michael H. Gillick
Attorney Christine K. Nelson
Attorney Michelle L. Danielson
Attorney Stephen M. Sobota

Appealed to Circuit Court. Affirmed November 28, 2001. Appealed to Court of Appeals. Affirmed October 22, 2002.  [Court of Appeals decision]

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(1)( Back ) In Northwestern A & C v. Industrial Commission, 21 Wis. 2d 554 (1963), the commission used a March 5, 1961 date of injury, the worker's last day of work with an employer, despite finding that the applicant had silicosis in 1956, and despite six weeks of lost work time in that year for "pneumonia" that was subsequently determined to be the effect of the ongoing silicosis. Id., at 21 Wis. 2d 557-58. That case, then, used a last day of work for the date of disability for the purposes of permanent total disability compensation, despite clear evidence of six weeks of lost wages for treatment from the condition several years earlier.

(2)( Back ) An explanation of the law changes leading to current Wis. Stat. § 102.01(2)(g) is at Green Bay Drop Forge Co v. Industrial Commission, 265 Wis. 2d 38, 45-48. Essentially, in 1919, the WC law was modified to include "occupational diseases." However, the change to include occupational disease did not change the part of the statute requiring that liability exist only where at the time of the accident, the worker be performing services growing out of employment. The courts interpreted "the time of the accident" to mean the date of disability from the occupational disease, which required wage loss. If no date of disability was shown until after the applicant stopped working for the employer whose employment caused the silicosis condition, the result was a noncompensable claim, as the worker was not performing services at the time of injury or accident. The court deplored this result, and so the legislature changed the definition of "time of injury" in 1933 to include the date of the accident or in the case of disease, the last day of work for the employer whose employment caused disability. This 1933 amendment, in turn, led to confusion about whether there could be a date of disability in occupational disease cases which preceded the last day of employment, if disability and wage loss were shown. The court held that it could, as the 1933 amendment was meant to supplement, not replace, the prior rule fixing the date of injury on the date of disability. See Wagner, supra. The current definition in Wis. Stat. § 102.01(2)(g), which makes it clear that the "last day of work" definition of date of injury in occupational diseases applies when the date of disability is after the cessation of all work contributing to the disease, was apparently enacted to address this point.

(3)( Back ) In Zurich, the court concluded that the subsequent exposure, which was out-of-doors, was not causative. Consequently, there was only one date of injury.

(4)( Back ) The commission has in the past, most notably in on Eisner v. Wis.-Pak, WC Claim no. 87-044815 (LIRC, February 14, 1991), found multiple dates of injury based on inability to work and then assigned liability based not on the actual disability as it existed on those dates, but on a medical opinion apportioning parts of subsequent-arising disability to different periods of prior employment punctuated by those dates. After reviewing the statute and relevant case law, the commission concludes it engaged in prohibited apportionment in Eisner. The commission will no longer follow the reasoning in that decision which purports to authorize such apportionment.

(5)( Back ) While the court stated that the liability of each employer's insurer is to be determined "in the same manner" as the liability of employers, the commission reads that sentence to mean that a single insurer is held liable. 

uploaded 2001/05/25