JEFFREY MATTEK, Applicant
VILLAGE OF STURTEVANT, Employer
EMPLOYERS INSURANCE OF WAUSAU, 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 makes the following:
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on September 25, 2003. The employer and its insurance carrier (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability, liability for medical expense, and average weekly wage attributable to the conceded work injury of June 21, 2000.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is August 18, 1959, began his association with the employer in 1996 as a volunteer firefighter. As of May 14, 1998, he was hired as a part-time, paid firefighter. He also worked for the employer as a part-time emergency medical technician. The applicant was one of the firefighters fighting a warehouse fire on June 21, 2000. That fire gave off a great deal of smoke, but the applicant wore an air mask when he actually fought the fire, which he would do for 15 minutes before resting for 15 minutes. He rested at a site about 100 yards from the fire, and did not wear his mask at those times. When the wind would blow his direction he would be exposed to the smoke. The applicant did not notice a breathing problem until he was home in bed that night, at which time he found it hard to breathe and had a dry cough. He was first able to see a physician, Dr. Lawrence Tolson, on June 28, 2000.
Dr. Tolson took a history of the exposure and the onset of symptoms consistent with the applicant's description of the event. The applicant denied any history of asthma but Dr. Tolson indicated that an underlying asthma needed to be ruled out. Dr. Tolson attempted to complete spirometry testing but could not because of the applicant's persistent coughing. He gave the applicant a restriction of no exposure to smoke, and the employer allowed the applicant to stay in the fire station and receive his pay when scheduled for duty. Dr. Tolson administered spirometry testing on July 5, 2000, and found moderate restrictive and obstructive components. He referred the applicant to Dr. Steven Johnson, a pulmonary disease specialist.
Dr. Johnson first saw the applicant on August 8, 2000. The applicant again gave Dr. Johnson a history of the symptom onset consistent with what occurred on June 21, 2000. He denied any history of asthma or bronchitis. Dr. Johnson ordered pulmonary function studies which showed mild obstructive airway disease, and Dr. Johnson diagnosed reactive airways dysfunction syndrome (RADS). Dr. Johnson's clinic note dated October 24, 2000, indicated the applicant had never had any prior pulmonary problems whatsoever, which is not accurate. Dr. Johnson prescribed medication as well as no exposure to smoke, and continued to treat the applicant. The applicant lost his job as a firefighter in February 2001, due to his restriction against smoke exposure. Dr. Johnson completed a WKC-16-B dated October 25, 2002, in which he attributed direct work causation for the applicant's RADS to the incident of June 21, 2000. He assessed 50 percent permanent partial disability due to the applicant's bronchial hyperactivity and symptomatic responses to irritants.
At respondents' request, Dr. Stuart Levy, a pulmonary specialist, examined and evaluated the applicant on May 27, 2003. He noted that the applicant had been treated for a respiratory tract infection in October 1994, with a diagnosis of severe bronchitis. His physician treated him with antibiotics and an Azmacort inhaler. A cough recurred in December 1997, but a chest x-ray was negative. In November 1998, the applicant experienced difficulty breathing, chest tightness, and coughing. A respiratory infection was diagnosed and treatment included Prednisone, Azmacort and Proventil inhalers. It is inferred that the problem resolved because there is no record of further treatment until June 28, 2000.
Dr. Levy opined that the 1994/1998 treatment showed a history of asthma or hyperreactive airways, and indicated that these are the only conditions that improve with prescriptions of anti-inflammatory medication such as Prednisone, Azmacort, and Flovent. Dr. Levy further opined that the June 2000 work exposure caused a temporary aggravation of the applicant's preexisting condition, and that respiratory testing on October 31, 2000, indicated the applicant had completely recovered by that date. Dr. Levy assessed five percent permanent partial disability attributable to the preexisting condition, "primarily due" to the requirement that the applicant take medication for it. He agreed with the restriction against exposure to smoke, but attributed this to the preexisting condition.
In response to Dr. Levy's opinion, Dr. Johnson wrote a letter dated June 16, 2003. Dr. Johnson pointed out that the 1994 and the 1998 treatments were for respiratory infections, and opined that the simple act of placing patients on bronchodilators does not mean that they have asthma. Dr. Johnson also points out that pulmonary function studies performed by Dr. Levy in May of 2003 were abnormal by Dr. Levy's own standards.
Dr. Levy responded in a letter dated June 17, 2003. He opined that the applicant's 1994 and 1998 symptoms were similar to those experienced on June 21, 2000, and noted that they responded to bronchodilators and steroids, and thus were consistent with an asthmatic condition for hyperactive airways. Dr. Levy further wrote that "by today's standards" the applicant's hyperactivity was not detectable by Methacholine challenge on October 31, 2000. In summary, he opined that the applicant's history is consistent with hyperreactive airways or asthma that became symptomatic in 1994, with subsequent exacerbation in 1997 and 1998, and again in June 2000.
The commission consulted with the administrative law judge, and he indicated that he did not encounter any credibility issues when observing the witnesses at the hearing held on June 17, 2003. Rather, he accepted the medical opinion given by Dr. Levy over the opinion given by Dr. Johnson. The commission found Dr. Johnson's opinion concerning causation to be credible.
While Dr. Levy concluded that the prescriptions for bronchodilators meant the applicant already had asthma in 1994 and 1998, Dr. Johnson credibly explained that the mere act of placing a patient on bronchodilators does not necessarily mean that the patient has asthma. (1) Indeed, the applicant was able to work as a fire fighter between 1996 and June of 2000 without any record of an asthmatic reaction to smoke exposure. After the exposure occurring on June 21, 2000, the applicant developed persistent respiratory difficulties, that was credibly diagnosed by Dr. Johnson as reactive airways dysfunction syndrome. This diagnosis is consistent with the spirometry testing done by Dr. Tolson on July 5, 2000, and by Dr. Johnson on October 31, 2000. Dr. Levy dismissed the 23 percent reduction revealed in flow rates during Methacholine challenge testing performed on October 31, 2000, but Dr. Johnson credibly described this as a positive result. Dr. Levy made no specific comment regarding the 57 percent increase in airway resistance Dr. Johnson measured on October 31, 2000, which Dr. Johnson also credibly attributed to obstructive airway disease.
Respondents pointed out that in his clinic note dated October 24, 2000, Dr. Johnson indicated that the applicant had never had any prior pulmonary problems, and that this was inaccurate given the treatments for respiratory infections and bronchitis in 1994 and 1998. However, it is clear that at least by the time he wrote his letter dated June 16, 2003, Dr. Johnson was fully aware of these prior treatments. Dr. Johnson specifically opined that those treatments did not support Dr. Levy's assessment of a preexisting condition.
With regard to the extent of permanent partial disability attributable to the applicant's lung condition, Dr. Johnson assessed 50 percent and Dr. Levy assessed 5 percent. The applicant must now avoid exposure to smoke and other lung irritants, but the evidence does not demonstrate that his lung capacities have been reduced to the severe extent of 50 percent as assessed by Dr. Johnson. Considering all of the evidence submitted, the commission finds that the applicant sustained a 10 percent permanent partial disability to his lungs as a result of the occupational lung injury. This amounts to 100 weeks of compensation at the applicable rate of $184.00 per week, for a total of $18,400.00, all accrued. The applicant's attorney is entitled to a 20 percent fee against this award.
The applicant claimed an additional period of temporary total disability from June 21, 2000 until November 3, 2000. The employer paid the applicant $2,350.00 for this period, which was the best estimate of both the employer and the applicant for what he would have earned had he been able to go out on calls during that period. Accordingly, there was no actual wage loss for the period in question and the claim for additional temporary total disability is dismissed.
The applicant argues that the administrative law judge erred in determining that the applicant's average weekly wage was $350.00. The judge computed this by multiplying 40 hours times the applicant's hourly rate of $8.75. The applicant argues that he should be presumed to be earning the wage of a full-time firefighter, pursuant to Wis. Admin. Code ch. DWD 80.30 and the interpretation of that code section found in City of Elroy and Heritage Mutual v. LIRC and John Sorenson, 152 Wis. 2d 320, 448 N.W.2d 438 (Ct. App. 1989). That case holds that volunteer firefighters are entitled to the presumption of maximum average weekly wage, unless it is shown that full-time, regular firefighters in the area are paid less than the maximum average weekly wage. But the applicant was not a volunteer firefighter on the date he was injured. He became a paid, part-time firefighter as of May 14, 1998. Accordingly, DWD 80.30 and the City of Elroy case are inapplicable. Pursuant to Wis. Stat. § 102.11(1)(a), the applicant's part-time wages are extended to full-time wages for purposes of computing average weekly wage, and that does result in an average weekly wage of $350.00.
The administrative law judge reserved jurisdiction concerning the issue of medical expenses, and that issue has remained unresolved. Accordingly, this order will be left interlocutory with respect to the issue of medical expenses attributable to the injury of June 21, 2000. Dr. Johnson indicated that the applicant may require additional medical treatment attributable to his lung condition, and the commission's order will also be left interlocutory with respect to such treatment and with respect to the possibility of additional disability, including possible loss of earning capacity or duty disability benefits.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are reversed. Within 30 days from this date respondents shall pay to the applicant the sum of Fourteen thousand seven hundred twenty dollars ($14,720.00); and to applicant's attorney, Israel Ramon, fees in the amount of Three thousand, six hundred eighty dollars ($3,680.00).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed October 15, 2004
matteje . wrr : 185 : 1 ND § 4.15
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Israel Ramon
Attorney Joseph G. Gibart
[Note: The decision is reproduced here as affected by a technical amendment, dated November 4, 2004, made to correct a typographical error in the applicable rate of compensation]
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