Wis.LIRC WC Decision: Fox, Anthony - September 25, 2002 - ND � 3.4 - Occupational Disease - date of injury - applicant worked only 11 days in last period of employment with employer, following which he had onset of (carpal tunnel) disability - date of injury is therefore LDW with last employer - last employer argued those 11 days could not possibly ahve been causative - argument rejected - fact that he worked only 11 days does not relieve last employer of liability - noted, that applicant had also worked extensively for that employer during earlier periods, which work was contributory

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

ANTHONY FOX, Applicant

MORRISON KNUDSEN CORPORATION, Employer

PHILLIP GETSCHOW, Employer

TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000025462

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed September 25, 2002
foxan . wsd : 175 : 3 ND � 3.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION
The employer, Getschow, contends in its petition for commission review the administrative law judge erred in determining that Getschow is responsible for the applicant's claim for occupational bilateral carpal tunnel syndrome. Getschow contends the applicant's employment with Morrison Knudsen should be found liable for the applicant's carpal tunnel claim. Getschow points to the fact the applicant's carpal tunnel symptoms worsened during his period of employment with Morrison Knudsen beginning on February 25, 2000, through April 6, 2000, and the applicant's subsequent brief period of employment with Getschow for approximately 11 days was not causative. The employer points to Dr. Gloss's report dated November 28, 2000, in which he indicated the applicant's date of a disability from work began on May 3, 2000, and he suffered an occupational work exposure as well as an aggravation beyond its normal progression due to his work for one month prior to April 7, 2000, which was the period the applicant was working for Morrison Knudsen.

However, the evidence does not indicate the applicant missed any work time due to a disability caused by his carpal tunnel syndrome while working for Morrison Knudsen. The applicant's first date of disability as found by Dr. Gloss was May 3, 2000. Wis. Stat. § 102.01(2)(g)2. defines "date of injury" in the case of a disease as the date of disability or, if that day occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused the disability. The "date of injury" employer is liable for the injury. The department's footnote states that compensation benefits may be recovered for a disability which occurs after the severance of the employer/employee relationship even though there was neither a wage loss nor time loss during the time that the employee was in service.

Getschow points to the fact the applicant only worked for the employer for 11 days in April 2000 after the worsening of his symptoms while working for Morrison Knudsen and that his work for Getschow during those 11 days could not possibly have been a causative factor in the nature and onset of his carpal tunnel syndrome which had already been diagnosed. However, the statute does not require the causative exposure be limited to simply the last 11 days the applicant worked with Getschow. The administrative law judge appropriately noted the applicant had worked for Getschow a substantial period of time during the last two years and over the course of his career as a boilermaker. Dr. Karr, who examined the applicant's records on behalf of Getschow, specifically noted the applicant's carpal tunnel syndrome was secondary to his work exposure as a boilermaker. This work exposure included work with Getschow on several occasions. In addition Dr. Foster specifically found that, if the applicant's work exposure with Morrison Knudsen was considered causative, so was his work exposure with Getschow during the latter part of April. However, Dr. Foster acknowledged the applicant's onset of carpal tunnel syndrome was due to his entire career as a boilermaker, which included a substantial amount of time working for Getschow.

The evidence indicates the applicant was suffering numbness and tingling and using splints during periods over the last two years which included periods in which he was working for Getschow among other employers. The administrative law judge appropriately noted that although the applicant's carpal tunnel syndrome was diagnosed prior to his last day of employment with Getschow he had worked for Getschow on a number of occasions over the last 10 to 15 years including two years prior to April 7, 2000, and therefore Getschow should be liable under the statutes since Getschow was the last employer whose employment contributed to the disability prior to the applicant's last day of work. Since the applicant's disability occurred after the cessation of all of his employment, under Wis. Stat.
§ 102.01(2)(g)2., the administrative law judge appropriately found Getschow to be liable for the applicant's carpal tunnel claim since the applicant's employment with Getschow over the years contributed to his disability and it was the last employer prior to the applicant's date of disability.

cc:
Attorney Michael B. Kulkoski
Attorney John A. Griner
Attorney Robert P. Ochowicz

Appealed to Circuit Court. Affirmed April 28, 2003.

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