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

DALE NORENBERG, Applicant

MIRON CONSTRUCTION COMPANY INC, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94033753

An administrative law judge (ALJ) for the Workers Compensation Division of the Department of Industry, Labor and Human Relations 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:

In the first sentence of the fourth full paragraph beginning on page 6 of the decision, substitute "$466" for "$46".

ORDER

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

Dated and mailed May 25, 1995
ND � 3.4  � 5.3

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The ALJ found that the applicant's 38 years of work as a mason and a mason/foreman aggravated, accelerated and precipitated his pre-existing bilateral osteoarthritic knee condition beyond normal progression. He fixed the date of injury at June 6, 1994, the applicant's last day of work. He awarded temporary total disability from June 6 to December 7, 1994, using the plateau date set by treating doctor Wells. He also awarded permanent partial disability at 50 percent for the right knee and 10 percent for the left knee, which worked out to 263.5 weeks by operation of the multiple injury multiplier.

a. Date of injury.

The employer and the insurer (collectively, the respondent) first argue that the applicant's date of injury for the right knee occurred when he sought treatment in 1987 or 1988 while he worked for another employer, Hutter Construction. This is based on the statutory definition of "date of injury" in sec. 102.01 (2)(g), Stats., as:

"in the case of disease, the date of disability, or if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer for whose employment caused the disability."

The commission and the department have consistently held that the day of disability may be the first day of lost wages because of the disability, and that includes wages lost for a doctor's visit. General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 179-81 (Ct. App., 1991).

The applicant had a pre-existing degenerative non-work condition, osteoarthritis of both knees. The work injury compensated under ch. 102, Stats., is the precipitation, aggravation, and acceleration of that condition beyond its normal progression by work activity; the underlying degenerative condition alone is not a compensable disability. Thus, prior treatment related the preexisting degenerative condition does not necessarily determine the date of injury. See, for example, Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982).

In this case, the record does not clearly establish whether the applicant actually lost wages to go to see a doctor in 1987-88. Further, the respondent's independent medical examiner, Dr. Chalos, opined that the applicant permanently aggravated his knee condition during the time that the applicant worked for Miron Construction due to the type of work the applicant did for Miron Construction. Dr. Chalos specifically found that work with Hutter Construction did not cause the need for the applicant's surgery.

On the other hand, Dr. Chalos did opine that the type of work the applicant did for both Hutter Construction and Miron Construction aggravated his bilateral knee condition. It is also true that treating doctor Wells opined that the arthritic condition was accelerated by the applicant's 30-plus years of masonry work. However, given Dr. Chalos' opinion that work at Miron Construction permanently aggravated the applicant's condition to the point surgery was necessary, the commission cannot conclude that the applicant's medical treatment in 1987-88 was the date of disability or date of injury for the right knee.

The closer issue is the respondent's second argument: that the date of injury occurred in February 1993, based on a doctor's visit with Dr. Welsch about bilateral knee problems in that month. Under this argument, Miron Construction remains liable, but before Liberty Mutual Insurance Company came on risk in April 1993.

Again, however, Dr. Chalos opined that the full course of the applicant's employment with the employer caused the disability, and no doctor opined that he had yet developed an occupational disease in February 1993. To conclude that the visits in February 1993, and certainly those in 1987-88, were indicative of disability "attributable to the effects of the occupational disease" instead of the underlying degenerative condition would be speculative. See Adams v. Cub Foods, claim no. 91-074342 (LIRC, March 31, 1993). The commission also notes that the applicant's condition continued to deteriorate after February 1993. In sum, the most certain and best- established date of injury is the one found by the ALJ: the last day of work.

b. Temporary total disability and "retirement."

The last issue is whether the ALJ properly awarded temporary total disability from June 6, 1994 to December 7, 1994. The respondent argues the applicant should not have been awarded temporary disability, pointing out that he "retired" on June 6, 1994, and has not worked since. The respondent cites General Motors Corporation v. LIRC and Hoff, court of appeals case no. 83-2378, district IV unpublished decision (April 25, 1985), to support its contention.

As the applicant points out, however, General Motors involved different facts. In that case, the applicant retired due to the permanent effects of a work injury for which he had been compensated. When he had been retired for nearly seven years, he suffered a period of renewed temporary total disability following surgery to correct a worsening of the old work injury. The applicant was 65 and drawing on a pension at the time. The court of appeals reversed the commission's award for a renewed period of temporary total disability.

The court of appeals noted that, under sec. 102.30, Stats., the fact that the applicant received a pension was not determinative. Rather, it denied temporary total disability on the bases that temporary disability is to replace lost wages; that the applicant had lost no wages due to his retirement; and that "[n]o evidence exists that he had a real possibility of obtaining other employment had he not become disabled."

In this case, the facts are otherwise. The applicant retired because of the work injury causing the temporary disability; it did not arise years later. The applicant had the surgery one month after his retirement; the doctors unanimously agreed he could not return to work following surgery; and his treating doctor reported that the then 58-year old applicant intended to work four more years were it not for the knee injury. If the applicant remains retired and has surgery for his right knee at some later point, one could argue he should not get temporary disability for that surgery under General Motors. However, General Motors does not preclude the award of temporary total disability for the left knee surgery, which in fact caused his retirement, under the facts of this case.

cc: ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

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