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

GRIF A KENAR, Applicant

GREAT LAKES DART MFG INC, Employer

TRAVELERS INDEMNITY CO OF CT THE, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1999-026162, 2002-036061

Petitions for commission review were submitted by each set of respondents alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 27, 2003. Great Lakes Dart Manufacturing, Inc./Travelers Indemnity Company constitute one set of respondents and Wil Surge Electric, Inc./Maryland Casualty Company constitute the other set. At issue is liability between these sets of respondents for the applicant's disability and medical expense first incurred with a laminectomy performed on November 8, 2001. The administrative law judge found an occupational back injury occurring on November 8, 2001, and apportioned liability equally between the two sets of respondents.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birth date is March 20, 1968, was employed in the receiving department for Great Lakes Dart Manufacturing (Travelers Insurance). He sustained a conceded low back injury while lifting a heavy box on January 1, 1998. After conservative treatment failed Dr. Charles Klein performed a discectomy and laminotomy at L5-S1 on January 8, 1999. The surgery had a good result and the applicant returned to work, at first with temporary limitations and then without restriction. Five percent permanent partial disability was conceded and paid.

In July of 2000, the applicant quit his employment at Great Lakes Dart and began an electrical apprenticeship at Lemberg Electric. In October of 2000, he switched employment from Lemberg to Wil Surge Electric (Maryland Casualty), again performing apprenticeship duties. In April 2000, he began experiencing low back and bilateral leg pain with no specific incident of injury. His electrical apprenticeship work required climbing, crawling, bending, and occasional heavy lifting. He went to see Dr. Klein on May 1, 2001, and indicated he had recently developed low back and leg pain. Conservative treatment again failed and Dr. Klein performed a second surgery at L5-S1 on November 8, 2001. Dr. Klein removed recurrent herniated disc fragments, and the applicant again had a good post-surgical result.

In a letter dated December 12, 2001, Dr. Klein indicated that it was his opinion that the disc reherniation should be related back to the original work injury of January 1, 1998.

At the request of Travelers Insurance, Dr. Mark Aschliman examined and evaluated the applicant on May 13, 2002. Dr. Aschliman opined that the applicant's symptoms and surgery in 2001 were caused by the 1998 injury and surgery, by his work activities as an electrician, and by his underlying degenerative lumbosacral spondylosis.

The commission agrees with the administrative law judge's factual inference that Dr. Aschliman credibly implicated both the traumatic injury of January 1, 1998, and the work exposure at Wil Surge Electric, in determining medical causation for the applicant's reherniation which began to manifest itself in April 2000. The applicant's L5-S1 disc was compromised by the injury and surgery of 1998, and his work exposure at Wil Surge was the precipitating reason for the reherniation. However, from the standpoint of legal causation Wil Surge Electric hired the employee "as is," with a weakened disc that at the time of hire was not disabling. His occupational exposure at Wil Surge was at least a contributory causative factor in the onset and progression of the L5-S1 reherniation and consequent surgery and disability. Accordingly, the reherniation constituted an occupational back injury with the first date of missed work being the occupational date of injury. This occurred on November 8, 2001.

Wis. Stat. § 102.175(1), provides for apportionment of liability between two or more "accidental injuries" which have each contributed to a disability, but under Wisconsin law there is no apportionment between an occupational disease and a traumatic injury. As stated in Travelers Insurance Company v. ILHR Department, 85 Wis. 2d 776, 782, 271 N.W.2d 152 (1978):

"Sec. 102.01(2)(f), Stats., [currently Wis. Stat. § 102.01(1)(g)2.] provides, 'Time of injury,' 'occurrence of injury,' or 'date of injury' means . . . in the case of disease the last day of work for the last employer whose employment caused disability . . .' Judicial construction of this provision has imposed the entire liability upon the last employer whose employment caused the disability resulting from the disease, without contribution from prior employers whose employment also caused the disease. The liability of each employer's insurer is determined in the same manner. If a single employer has had successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred." (emphasis added).

Wil Surge Electric and Maryland Casualty Company are therefore fully liable for the applicant's surgery on November 8, 2001, and all disability and medical expense incurred as a result of the occupational back injury of November 8, 2001. The outstanding medical expenses have not been computed as of the date of hearing, and therefore this order will be left interlocutory with respect to them. The applicant should submit proof of these medical expenses to Maryland Casualty Company, and thereafter immediate payment should be made subject to any appropriate objections concerning reasonableness or necessity. Dr. Klein tentatively assessed five percent permanent partial disability, which is the minimum for a laminectomy, and this results in 50 weeks of compensation at the applicable rate of $184.00 per week for an accrued total of $9,200.00. Jurisdiction will also be reserved with respect to the possibility of additional disability and/or medical expense.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Wil Surge Electric, Inc.,/Maryland Casualty Company shall pay to the applicant the sum of Nine thousand two hundred dollars ($9,200.00). As soon as the applicant submits proof of reasonably required medical expenses to Wil Surge Electric, Inc./Maryland Casualty Company, they shall also make payment of those expenses.

The application as it relates to Great Lakes Dart Manufacturing, Inc. and Travelers Indemnity Company of Connecticut is dismissed.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed December 23, 2003
kenargr . wrr : 185 : 8 ND § 3.4   § 3.37 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission had no disagreement with the administrative law judge's findings relative to any factual determination, including assessment of the credibility of the applicant, who was the only witness at the hearing. Rather, the reversal of his decision apportioning liability was based on application of the applicable law.

cc: 
Attorney John A. Griner
Attorney Patrick J. Mitchell

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