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

MARK MURPHY, Applicant

BADGER MINING CORP, Employer

ZURICH AMERICAN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 2003-028125, 2004-012733


Zurich American Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 28, 2005. Briefs were submitted on behalf of Zurich American, Phoenix Insurance Company, and the applicant. At this stage in the proceedings a compensable occupational disease (silicosis) has been conceded by Badger Mining Corporation, Zurich American, and Phoenix Insurance. At issue is the occupational disease date of injury, which controls whether Zurich American or Phoenix Insurance is the liable insurer.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's ultimate finding that the date of injury was September 7, 2001. However, the commission substitutes the following findings for those made by the administrative law judge:


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is October 24, 1959, was employed by the employer from 1979 to 1980, and again from 1981 to 2001. His last day of work was September 7, 2001, when he voluntarily left his employment to accept a position with a different employer. Between 1979 and 1986, when Phoenix Insurance was on the risk, the applicant worked in the quarry and on a drill rig. During this period he was exposed to silica sand and dust. In 1986, he transferred to the employer's repair shop to work as a mechanic, and subsequently was promoted to a manager's position. He was not exposed to significant amounts of sand or dust as a mechanic or as a manager.

The employer required the applicant and his coworkers to undergo biannual physicals that included a chest x-ray. In September 1986, the applicant underwent one of these employer-sponsored x-rays, and afterwards he received a written report indicating that the results were abnormal. The report also advised him to see a doctor. The applicant saw Dr. Anthony Racki, who took another chest x-ray and performed pulmonary function tests on November 14, 1996. Dr. Racki then referred the applicant to a pulmonary specialist, Dr. Peter Jerome.

Dr. Jerome first saw the applicant on December 4, 1996. He recounted the applicant's work history, described abnormal chest x-ray findings dating back to 1992, and also described the applicant as "fairly asymptomatic." Dr. Jerome also noted that pulmonary function tests obtained on November 14, 1996, showed a forced vital capacity of 74 percent and a diffusion capacity of 96 percent of predicted normal. He scheduled the applicant for a bronchoscopy that included lung biopsies, and performed this procedure on December 23, 1996. The applicant took a day of vacation to have the procedure, and used his own medical insurance to pay for it. Phoenix Insurance Company was still on the risk at this time.

Dr. Jerome wrote a letter to Dr. Racki dated January 8, 1997, in which he described abnormal biopsy results that revealed foreign body silica and mixed dust reaction. He expressed concern over the applicant's "...progressive pulmonary infiltrative process and some decline in lung function tests, leaving him with a moderate impairment at this point." He was concerned that in addition to pulmonary silicosis the applicant might have sarcoidosis, and prescribed a trial of Prednisone for the possible sarcoidosis. Dr. Jerome saw the applicant again on February 5, 1997, and in addition to the Prednisone prescription, advised the applicant to take multivitamins and additional Vitamin E. On April 2, 1997, he prescribed Colchicine to be taken with the Vitamin E, and began to taper the applicant off the Prednisone, being satisfied that there was no sarcoidosis. On October 8, 1997, Dr. Jerome noted the applicant was feeling well, that the diagnosis was pulmonary silicosis, and that the applicant should continue the Vitamin E and Colchicine. Dr. Jerome opined that the applicant's silicosis is work-related.

The applicant's pulmonary silicosis progressed, but he continued his employment with the employer until quitting on September 7, 2001. The symptoms of his silicosis did not interfere with his ability to work. Zurich American Insurance Company was on the risk on September 7, 2001. At Zurich's request, Dr. James Sehloff examined the applicant on March 31, 2004. In his report dated April 27, 2004, Dr. Sehloff diagnosed work-related pulmonary silicosis and opined that the December 1996 bronchoscopy was the result of the work exposure.

At issue is whether the occupational date of injury should be December 23, 1996 (the date of the bronchoscopy) or September 7, 2001 (the last day of work). The administrative law judge found it was the latter. She found that the case was on point with Virginia Surety Co., Inc. v. LIRC, 2002 WI App 277, 258 Wis. 2d 665, 654 N.W.2d 306, and also found that on December 23, 1996, the applicant "was not experiencing any pulmonary disabilities." Zurich petitioned and argues that the case is distinguishable from Virginia Surety, primarily by the fact that the applicant went to Dr. Jerome and underwent the bronchoscopy of his own accord, and not as part of an employer-sponsored treatment. Zurich also argues that the evidence demonstrates the applicant did have respiratory symptoms, and that was one of the reasons he chose to undergo the bronchoscopy in December 1996.

On cross-examination, the applicant admitted that in 1996 he had experienced some shortness of breath upon exertion, although it did not interfere with his ability to work. Dr. Jerome did not assess any physical restrictions as a result of the December 1996 bronchoscopy, but he did begin medication and regular monitoring of the applicant's condition. Therefore, the ALJ's finding that in November 1996 the applicant was "not experiencing any pulmonary disabilities" was inaccurate.

In Virginia Surety, the applicant received all his medical treatment (including a bronchoscopy) at the direction of the employer, or on follow-up with the employer's physicians. This is significantly different from the applicant in the case at hand. Because of his own concern over the abnormal x-ray, the applicant chose to go to his own physicians, and chose to take a day of vacation to undergo the bronchoscopy recommended by Dr. Jerome. One of the reasons given by the court for affirming the commission in Virginia Surety was that it would be wrong to allow an employer to "convert a non-disabling silicosis into a disabling condition with a single 'date of disability' simply by requiring a medical examination, an x-ray or other diagnostic tests." Id. at 681. That concern over the employer's manipulation of the date of disability is not applicable to this case, in which the applicant is the one who independently chose to miss work to have a bronchoscopy.

However, the Virginia Surety court also focused on the determinative question of when the occupational disease "ripens into a disabling condition." Id. at 680. In deciding whether the disease has "ripened," the court noted that it has looked at whether there is an "actual physical incapacity to work rather than a medical or pathological disability which results in no wage loss." Id. After reviewing the circumstances of the applicant in Virginia Surety, the court approved of the commission's "distinction between non-incapacitating symptoms on the one hand and incapacity to work on the other." Id.

In December 1996, the applicant did have minor respiratory symptoms associated with his developing, work-related silicosis. However, these symptoms had not interfered with his physical ability to perform his work, and were therefore "non-incapacitating" as that term applies to occupational disease. His silicosis did not ripen into a physically incapacitating disease simply because he chose to miss work to undergo treatment in the form of a diagnostic procedure. Had his respiratory symptoms at that time been interfering in any way with his physical ability to perform his work for the employer, this would be a different case.

Zurich American asserts that the applicant's circumstances are analogous to those of the worker in General Casualty Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 477 N.W.2d 322 (Ct. App. 1991). Zurich notes that the worker in that case, Steven Schrock, left work to visit his physician for back pain. Zurich attempts to equate that action with the applicant's decision to miss work for his bronchoscopy. However, Schrock's back pain interfered with his physical ability to work, prompting him to leave work and to seek medical treatment. He experienced a physical incapacity to work. The applicant experienced respiratory symptoms that concerned him and his physician, but which did not affect his physical ability to work. The essential distinction is between a disease that has interfered with the physical ability to work and resulted in lost work time (incapacitating); and a disease that has not interfered with the physical ability to work, but for treatment purposes merely resulted in lost work time (non-incapacitating). (1)

In each case, before finding an occupational disease date of disability the fact finder must first determine whether the evidence demonstrates that the disease affected the individual's physical ability to work. It is clear that in the applicant's case his silicosis never had such effect while he was employed with the employer, but that such employment caused his silicosis, thus making his last day of work for the employer his occupational disease date of injury. (2)

Dr. Jerome credibly opined that as a result of the applicant's occupational disease, he has to date sustained 40 percent permanent partial disability to the body as a whole. This amounts to 400 weeks of compensation at the applicable rate of $184.00 per week, for a total of $73,600.00. As of the hearing date, Zurich American Insurance Company had paid $33,800.00 towards permanent partial disability, and Phoenix Insurance Company had paid $16,156.40 towards the same. However, correspondence in the file from Phoenix Insurance's counsel alleges that Phoenix Insurance paid substantial additional sums towards permanent partial disability subsequent to the hearing date. There is no indication as to whether Zurich American Insurance has also paid additional sums. The commission is therefore unwilling to attempt to calculate the exact sums still owed the applicant and his attorney, or the exact amount Zurich American Insurance must reimburse to Phoenix Insurance. The commission will remand the matter to the department for calculation of these exact amounts, which should be accomplished with the full and immediate cooperation of all the parties.

Zurich American is also liable for reasonably required medical expenses as set forth below in the commission's Interlocutory Order. Jurisdiction will be reserved for future medical treatment and/or disability attributable to the applicant's occupational silicosis.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The commission's Findings and Interlocutory Order are substituted for those of the administrative law judge, whose ultimate finding of an occupational silicosis with a date of injury on the applicant's last day of work, is affirmed.

Within 30 days from this date, Zurich American Insurance Company shall pay to Berlin Memorial Hospital, the sum of One hundred thirty-seven dollars and seventy-two cents ($137.72); to CHN RAD, the sum of Forty-one dollars and fifteen cents ($41.15); to FVCC, the sum of One hundred thirty dollars and thirty-seven cents ($130.37); to Peter Jerome, M.D., the sum of Two hundred ninety dollars and fifty-two cents (290.52); to Radiology Associates of Fox Valley, the sum of Four dollars and ninety cents ($4.90); to Unity, the sum of One thousand thirty-four dollars and four cents ($1,034.04); to New England Insurance, the sum of Two hundred eighty-three dollars and sixty cents ($283.60); and to the applicant as reimbursement for medical expenses he paid out of pocket, the sum of Two thousand one hundred forty dollars and twelve cents ($2,140.12).

The matter is remanded to the department solely for calculation of the exact amounts due the applicant and his attorney, and due as reimbursement from Zurich American Insurance to Phoenix Insurance, in accordance with the commission's findings.

Phoenix Insurance Company is not liable for any compensation, including medical expense, attributable to the applicant's occupational disease injury. Phoenix Insurance is dismissed from this proceeding, except for the reimbursement due to it from Zurich American Insurance.

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

Dated and mailed January 26, 2006
murphma . wpr : 185 : 8 ND § 3.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney John D. Neal
Attorney Edward W. Stewart
Attorney John A. Griner IV



Appealed to Circuit Court.  Affirmed September 1, 2006.  Appealed to the Court of Appeals.  Affirmed, unpublished summary disposition, July 25, 2007.  Petition for Supreme Court review filed August 24, 2007.

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Footnotes:

(1)( Back ) As explained in Montello Granite Company v. Industrial Commission, 227 Wis. 170, 186, 278 N.W. 391 (1938):

This court has consistently held under the Workmen's Compensation Act that in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results while the employer-employee relationship exists between the parties.

(2)( Back ) See Wis. Stat. § 102.01(2)(g)2.

 


uploaded 2006/02/03