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

JOHN E MILLS, Applicant

BIEHN CONSTRUCTION INC, Employer

NORTH RIVER INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-061360


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 19, 2001. Biehn Construction, Inc. and North River Insurance Company submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the applicant sustained an occupational injury arising out of and in the course of his employment with Biehn Construction, Inc.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Delete the first full paragraph on page 5 of the administrative law judge's decision. All the other findings and conclusions made by the administrative law judge are affirmed and reiterated as if set forth herein.

Now, therefore, this


ORDER

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application is dismissed.

Dated and mailed April 25, 2002
millsjo . wmd : 185 : 8  ND § 3.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In his petition, the applicant asserted that because he had disabling symptoms in his wrists while employed at Biehn Construction, and because he went to the emergency room after work hours in response to these symptoms, a date of injury while employed with Biehn Construction was established.

An occupational disease is a process which normally extends over a considerable span of time, involves a period of "progression" in which symptoms may manifest themselves to varying degrees, and ultimately "ripens" into a disabling affliction. Kohler Company v. ILHR Dept., 42 Wis. 2d 396, 400-01, 167 N.W.2d 431 (1969).

Because of the difficulty in determining when the occupational disease ripens into a disabling condition, Wisconsin case law has consistently held that a date of disability occurs when the employee first suffers a wage loss through lost work time due to the effects of the occupational disease. General Casualty Company of Wisconsin v. LIRC, 165 Wis. 2d 174, 181, 477 N.W.2d 322 (Ct. of App. 1991); Montello Granite Company v. Industrial Commission, 227 Wis. 170, 186-88, 278 N.W.2d 391 (1938).

The fact that the applicant had developed symptoms during his employment with Biehn Construction leads to the inference that, at that time, his occupational disease process was in the progression stage. However, the fact that he never missed any work while at Biehn, due to the effects of the disease, leaves no doubt that he did not have a date of disability during such period of employment. This is true even though when the applicant was seen by the emergency room physician after work hours on June 22, 1999, that physician applied splints to both wrists and indicated that the applicant should return to work the next day with the restriction that he try to refrain from heavy lifting. This medical treatment does not change the fact that the applicant did return to work, and did not miss any work due to the occupational disease until September 29, 1999, when he was employed with Dahlman Construction. The credible medical evidence demonstrates that his heavy demolition work with Dahlman Construction caused the occupational disease to ripen and led to a first date of disability while employed with that employer. Accordingly, the claim against Biehn Construction must be dismissed.

The commission deleted that paragraph in the administrative law judge's decision which discussed the hypothetical case involving a date of disability occurring at Biehn Construction. This paragraph constituted surplusage because there was no date of disability at Biehn Construction.

cc: 
Attorney Thomas M. Domer
Attorney Timothy J. Schumann


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