CARLA MUELLER , Applicant

CARNES CO INC, Employer

UNITED STATES FIRE INS CO, Insurer

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, except that it makes the following modifications:

1. Delete the tenth, eleventh, and twelfth paragraphs (the last three paragraphs) of the ALJ's Findings of Fact, and substitute:

"The applicant sustained an occupational disease causing injury. October 4, 2000, the applicant's last day of work, was her first wage loss from a physical incapacity to work from the disease, and so her `date of disability' fixing her `date of injury' under Wis. Stat. § 102.01(2)(g).

"As a result of the work injury, the applicant sustained permanent partial disability at 20 percent compared to permanent total disability. She is thus entitled to 200 weeks of permanent partial disability at the weekly rate of $184 (the statutory maximum for injuries in 2000), for a total of $36,800.00. As of July 11, 2003, 129 weeks 3 days totaling $23,828.00 have accrued; 70 weeks 3 days totaling $12,972.00 are unaccrued.

"The applicant agreed to a fee fixed under Wis. Stat. § 102.26 at 20 percent of the permanent partial disability awarded. The future value of the fee is thus $7,360.00 of which $4,765.60 is currently accrued and $2,594.40 is unaccrued. Deducting an interest credit of $120.89 for the advance payment of the unaccrued portion of the fee results in a present value for the entire fee of $7,239.11. That amount, plus costs of $625.00 shall be paid to the applicant's attorney within 30 days.

"The amount payable the applicant within 30 days is $18,437.40 which equals the accrued permanent disability award ($23,828.00), less the accrued fee ($4,765.60), and less the attorney's costs ($625.00). The amount remaining to be paid in monthly installments of $797.33 as it accrues after 2003, is $10,377.60, which equals the unaccrued award ($12,972.00) less the fee ($2,594.40) thereon.

"This order shall be left interlocutory to permit awards of compensation for medical expenses incurred prior to the hearing, if necessary. Because the applicant may require additional treatment to cure and relieve the effects of her work injury, this order shall also be left interlocutory to permit additional awards for temporary and permanent disability that may arise after the date of hearing."

2. Delete the ALJ's Interlocutory Order and substitute the second, third and fourth paragraphs of the commission's Interlocutory Order set out below.

NOW, THEREFORE the Labor and Industry Review Commission makes this

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

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Carla Mueller, Eighteen thousand four hundred thirty-seven dollars and forty cents ($18,437.40) in disability compensation.

2. To the applicant's attorney, John D. Neal, the sum of Seven thousand two hundred thirty-nine dollars and eleven cents ($7,239.11) in attorney fees and Six hundred twenty-five dollars ($625.00) in costs.

Beginning on August 11, 2003, and continuing on the eleventh day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred ninety-seven dollars and thirty-three ($797.33) cents per month until the additional amount of Ten thousand three hundred seventy-seven dollars and sixty cents ($10,377.60) is paid in disability compensation.

Jurisdiction is reserved for further orders and awards as may be necessary, consistent with this decision.

Dated and mailed July 8, 2003
muellca . wmd : 101 : 9  ND § 3.42  § 8.28 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The applicant has emphysema and asthma. She worked for the employer from July 29, 1998 to October 4, 2000, operating a plasma cutter (1) to cut sheets used in ventilation systems. The applicant contends that exposure to airborne fine particulates at work is causally related to her lung conditions and her resulting permanent disability. The employer and its insurer (collectively, the respondent) concede that the employment exposure aggravated her pre-existing lung condition temporarily, but assert that the underlying condition, and any permanent disability from that condition, is related to the applicant's cigarette smoking rather than her employment exposure.

The main issue in this case is the nature and extent of the disability caused by the work exposure beyond the temporary disability from the short-term exacerbation of the applicant's underlying asthma condition conceded by the employer. Both sides have submitted expert medical opinion.

The applicant relies on Dr. Wilmeth's practitioner's report dated November 15, 2000, which is at exhibit C. For a description of the work exposure causing the applicant's disability, she refers to her treatment note of November 15, 2000, which of course describes operation of the plasma cutter. She indicated a diagnosis of 

Asthma with significant aggravation from workplace exposures.
New diagnosis of emphysema with probable association with workplace exposures as well.

She felt it was "unclear at this time" whether an event directly caused the emphysema, but did indicate that work exposure aggravated, precipitated, and accelerated the asthma beyond its normal progression, and also marked the occupational disease causation box. She declined to rate permanent disability as of her November 15, 2000 practitioner's report, and actually expected some improvement with continued removal from exposure.

Dr. Wilmeth also provided a letter report dated October 12, 2001, in response to inquiries from the applicant's lawyer. She states:

"It is my opinion that Ms. Mueller's workplace exposures have either caused or aggravated both her asthma and her emphysema. Ms. Mueller has a history of asthma since early childhood with periods in which there [were] prolonged improvement and then recurrence of asthma. Her asthma had been quite stable as an adult then recurred after her employment at Carnes. It is my opinion that the workplace exposures were the key aggravating factor in the worsening of both her symptoms and objective test results in relationship to the asthma. Ms. Mueller's childhood asthma and mild problems as an adult had been quite stable despite her long-term smoking up until her employment at Carnes commenced. The specific types of exposures as detailed in the toxicology review of November 15, 2000 were known to be potentially associated with aggravation of asthma. Therefore, the occurrence of aggravation at this time was scientifically consistent and chronologically consistent with development of her symptoms during her employment rather than related to the cigarette smoking.

"Ms. Mueller was first diagnosed with emphysema in October 2000. At that time she had been employed as a plasma cutter at Carnes since July 29, 1998. In her work she was exposed to extremely high levels of ultra-fine particulates. These very tiny particles known as ultra-fines are inhaled deep in the lung tissue to the alveolar (breathing) portions of the lung where they can exert their effect. The Material Safety Data Sheet review indicated that many of the types of materials found in these ultra-fine particulates are known to be associated with fibrosis or scarring of deep lung tissue. Cigarette smoking is also known to be associated with scarring in the deep parts of the lung tissue. Ms. Mueller has a 17 year history of one to one and one-half pack per day smoking. Smoking is known to cause emphysema though it is not expected the findings or damage would yet have occurred in a 34-year old individual. It would be my opinion that both the cigarette smoking and the exposure to ultra-fine particulates were both factors in the development of emphysema in such a young individual. Because of her age and the rarity of the ability to diagnose even early emphysematous changes in this age group, it would be my opinion that the workplace exposure is a primary factor and the cigarette use is a significant aggravating factor."

Exhibit C, letter from Wilmeth to Neal dated October 12, 2001.

Dr. Wilmeth went on to opine that the applicant reached an end of healing on or about January 15, 2001. She rated the permanent partial disability for the asthma at 10-25 percent to the body as a whole, due to testing that showed a mild obstructive pattern. She also related a 10 to 25 percent permanent partial disability to the whole body for the emphysema, citing her diffusing level for carbon monoxide, which was also affected by smoking. She gave a 25 percent permanent partial disability to the body as a whole for both conditions combined.

Dr. Wilmeth further opined that the applicant was restricted from work exposure to pulmonary irritants, known as pulmonary allergens, or pulmonary toxicants. This meant the work environment, whether factory or office, must be clean. Finally, noting that the applicant's asthma condition did not require a medication regimen to maintain normal baseline health, but does now, Dr. Wilmeth opined the need for ongoing medication was work related.

In a follow-up letter to the respondent's attorney, Dr. Wilmeth explained her opinion on causation to be that the permanent disability for both the asthma and the emphysema are primarily related to the workplace exposures with the cigarette smoking being an additional contributing factor but not the primary factor. She explained further, that the 25 percent permanent partial was 20 percent related to work exposure and 5 percent to smoking. Exhibit 1, January 2, 2001 letter from Wilmeth to Ochowicz.

The employer relies on the medical report of its independent medical examiner, James W. Sehloff, M.D., who works in Dean Clinic's pulmonary medicine and critical care departments. His diagnosis, after examination, was COPD (2)  with asthmatic bronchitis, emphysema, and chronic tobacco abuse. Regarding causation, the doctor states:

"Dr. Wilmeth felt that the patient suffered from her work exposure at Carnes Company leading to aggravation of her asthma. I again feel she had underlying COPD secondary to tobacco abuse which was temporarily aggravated by work exposures, however, I don't feel there is any permanent functional disability related to her work exposures, and that her disability is related to her ongoing tobacco abuse. I don't feel that her permanent work restrictions are related to work exposure but are related to her underlying COPD."

Finally, the respondent relies on a report from Dr. Donovan, the applicant's treating doctor. He states:

"1. I can't say for sure if she sustained any permanent disability from Carnes.
2. There is no question if she continues to smoke she will continue to be symptomatic and her lung disease will progress irrespective of her employment at Carnes."

Exhibit 2, Donovan practitioner's report dated January 15, 2002.

2. ALJ decision; parties' briefs

The ALJ found for the applicant. He explained that Dr. Donovan's opinion -- that he could not say for certain if the applicant sustained any permanent disability from his employment with the employer -- does not contradict Dr. Wilmeth's opinion. He also explains that Dr. Sehloff did not specifically deny that the work exposure was a material contributory factor in the onset or progression of the applicant's condition. The ALJ explained, too, that Dr. Donovan's "second statement" in his January 2002 practitioner's report that the applicant's condition would continue to progress from smoking irrespective of her employment did not matter if work played a role in its progression as well. Accordingly, the ALJ found causation, and awarded temporary total disability from October 4, 2000 to the January 15, 2001 plateau date, as well as 20 percent permanent partial disability.

The respondent appeals. In its initial brief, the respondent noted that Dr. Wilmeth was the only doctor to assess permanent disability, and that treating doctor Donovan expressly declined to assess any permanent partial disability from the work exposure. The respondent also pointed out the applicant's repeated refusal to stop smoking. It argues, too, that the applicant herself testified that her symptoms from the work exposure have resolved. Finally, the respondent contended that the medical expenses were paid in error, as the applicant had agreed prior to hearing to withdraw her claim for the expenses, though the matter would be left interlocutory.

Regarding the main issue of the extent, if any, of permanent partial disability, the applicant points out that Dr. Donovan had on two occasions (his notes of October 4, 2000, and October 11, 2000) associated the applicant's condition with employment. She suggests, as did the ALJ, that his reluctance to assign permanent partial disability to the work exposure may have been due to his frustration with the applicant's efforts to stop smoking.

Finally, the respondent's reply brief discusses at length Dr. Wilmeth's reliance -- in the explanation in her November 15, 2000 treatment note (incorporated by reference in her practitioner's report) about how plasma arc cutting produces ultrafine particles -- on statements from another expert, Dr. Domgala, whom she contacted on the issue. Dr. Domgala, of course, neither has testified nor submitted a report in this matter.

3. Discussion.

While the applicant's testimony suggests her symptoms from her work exposure have resolved, she is not a doctor. The record, particularly Dr. Wilmeth's letter report of October 12, 2001, clearly shows that during her employment with the employer the applicant's asthma has progressed to the point that she needs medication to maintain a baseline status where she did not before. There are also objective findings consistent with loss of lung function during that time. None of the doctors contend her condition has not worsened since she began working for the employer, even though her more acute symptoms -- shortness of breath, coughing, fatigue -- may have lessened since she stopped working (as Dr. Wilmeth anticipated in her practitioner's report at exhibit C.) See transcript, pages 53-54, 55.

The commission also cannot credit the respondent's argument that Dr. Wilmeth's opinion is flawed, because her November 15, 2000 treatment note relies on hearsay from another doctor (Domgala) with respect to the ultrafine particles produced by plasma arc cutting. Experts may rely on material that is itself hearsay, if it is customarily relied upon by experts in reaching their opinions. Wis. Stat. § 907.03. Thus it has been held that:

"Expert opinions can be based on facts made known to the expert before the trial. Section 907.03, Stats. If the facts are of a type reasonably relied upon by the expert in forming opinions, the facts need not be admissible in evidence. Id. The expert's opinion can address the ultimate issues of the case. Section 907.04, Stats. Where the premises leading to the expert's conclusion are attacked as inadequate, it is the duty of opposing counsel to draw out the data that led to the expert's opinion. Rabata v. Dohner, 45 Wis. 2d 111, 135, 172 N.W.2d 409, 421 (1969). [Emphasis added.]"

Klingman v. Kruschke, 115 Wis. 2d 124, 127 (Ct. App. 1983).

The commission also considered the applicant's failure to quit smoking. However, work exposure need not be the sole cause of a condition for the employer to be held liable under the worker's compensation act, but rather only a material contributory cause. See Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (1978).

In sum, the record establishes that the applicant was exposed to ultrafine particles in the arc cutting process. Dr. Wilmeth's reports clearly and persuasively explain how this exposure can be damaging, and can play a causal role in the development of emphysema and asthma. Further, the applicant's asthma condition has worsened during her employment, and she has early emphysema at an age that Dr. Wilmeth testified without contradiction is young (34 years) even in a smoker. In addition, the medical records include testing showing loss of pulmonary function which is a recognized basis for assessing permanent disability. Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 402, 167 N.W.2d 431 (1969). The commission therefore affirms the ALJ's findings regarding permanent partial disability.

In its response brief, the applicant agrees that it had agreed to withdraw its claim for medical expenses, and also stated that the employer conceded and paid the temporary total disability for the period claimed. The applicant and the respondent thus agreed that both the medical expense and temporary disability awards could be deleted from the order, provided jurisdiction for past medical expenses is reserved based on the conceded injury. The commission has amended the ALJ's decision to reflect this agreement.

cc: 
Attorney John D. Neal
Attorney Robert P. Ochowicz

Appealed to Circuit Court.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) As explained by Dr. Wilmeth, an occupational medicine specialist, plasma arc cutting uses a high voltage current to cut through heavy thicknesses.

(2)( Back ) Chronic obstructive pulmonary disease. 

uploaded 2003/07/14