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


GARY YENCH, Applicant

UW OSHKOSH, Employer

UW SYSTEM, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 90029552, 89076285


The administrative law judge issued his findings of fact and interlocutory order in this case on September 2, 1994, following a hearing on February 16, 1994 and the closing of the record on August 22, 1994. The self-insured employer submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the employer and the applicant submitted briefs.

This case arises on the applicant's timely request, under sec. 102.16 (1), Stats., for review of a previously-confirmed compromise agreement between the parties.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties, and substitutes for the Findings and Order of the administrative law judge the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case arises on a request to reopen a compromise. The compromise at issue settles two applications filed by the applicant: (1) a back injury on December 7, 1989; and (2) a claim for contact dermatitis with an April 13, 1990 date of injury.

The employer conceded some liability for the back. It paid about $2,350 in temporary disability and $10,625 in permanent partial disability on a rating of 8.5 percent to the whole body. Thereafter, the applicant and the employer settled both claims for an additional $29,500.

The compromise agreement (Exhibit 1) was drafted by the applicant's attorney. It listed the dates of injury for both the back and contact dermatitis claims, and described the issue in dispute as the employer's liability for "further permanent partial disability, medical expense or retraining benefits pursuant to Wis. Stats. 102.61 . . ." The agreement goes on to say the $29,500 settlement "is a full and final settlement of any and all liability the respondent employer, its agents. . . may have including but not limited to ch. 102 of the Wis. Stats.," except that medical expenses would remain open for three years.

The compromise agreement was signed by the applicant, his attorney and the employer on August 13, 1991. It was approved by ALJ Andrew Roberts on September 11, 1991. The applicant filed a timely application for review of compromise on June 29, 1992.

The department has the authority to set aside a previously-approved compromise agreement, upon application by either party made within one year from the date of approval. Section 102.16 (1), Stats. The commission has consistently held that compromises should not be reopened absent gross inequity, important newly-discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, claim No. 87037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., claim No. 85060165 (LIRC, February 5, 1990); and John A. Danielson v. Land O Lakes, claim No. 92001626 (LIRC, May 25, 1995). Compromises are not lightly set aside because a compromise of a worker's compensation claim under sec. 102.16 (1), Stats., encompasses qualities of comprehensiveness, finality and risk. Indeed, the supreme court has stated that "[b]y using the word 'compromise' we usually mean that we assume the risk of a mistake for which otherwise one would be entitled to a different result." C.F. Trantow v. Industrial Commission, 262 Wis. 586, 589 (1952).

The applicant argues the compromise should be reopened because when he settled, no doctor had opined he would have permanent disability from his skin condition that essentially prevents him from working. Indeed, he asserts the compromise was intended to settle permanent disability for the back only, and not potential permanent disability for his skin condition.

In 1990, before he signed the compromise agreement, the applicant treated with Morris Meister, M.D. Dr. Meister diagnosed the applicant's skin condition as atopic skin with the tendency for dyshidrotic flares on his hands, whether or not the applicant was working with chemicals. However, the doctor also noted contact dermatitis, which is a rash that occurs with chemical exposure and then usually goes away. He opined the applicant's disability was caused by aggravation, acceleration and precipitation of a preexisting condition at work or by occupational disease.

Dr. Meister stated that he did not believe the work exposure caused permanent disability. However, he did state the applicant could not tolerate working as a janitor, and that he should be retrained in a position that would allow him to avoid excessive exposure to cleaning solutions, coolants, dust or perspiration. The doctor opined that the applicant could return to work almost immediately if he were retrained, and opined that he would likely experience more rashes, particularly if exposed to chemical irritants. See practitioner's resport dated September 18, 1990.

The applicant also saw Derek J. Cripps, M.D., in August 1990. Dr. Cripps opined that the applicant had atopic skin, meaning he could develop a skin condition with a dermatitis rather easily. He did not think the applicant had a work-related problem, but noted with his atopic background, any irritant chemical would be likely to aggravate his dermatitis.

The applicant was evaluated by the Division of Vocational Rehabilitation (DVR) of the Department of Health and Social Services in October 1990. The evaluator noted that the applicant had developed a skin allergy in 1987 when working with oil as a saw blade sharpener (apparently with another employer.) The DVR evaluator reported that the allergy redeveloped because of chemicals the applicant used as a janitor for the employer. He reported that the applicant's "skin doctor" (evidently Dr. Meister) recommended he "find a new line of work outside the janitorial area." The evaluator also reported the applicant was taking prescriptions for his skin allergies. DVR eventually recommended vocational retraining in an individualized written rehabilitation program (IWRP) dated January 22, 1991.

After signing the compromise agreement in August 1991, the applicant began treating with Wayne H. Konetzki, M.D. In a note dated February 10, 1992, the doctor noted the applicant was suffering persistent eczema from work exposure which was not getting better. On April 3, 1992, Dr. Konetzki noted that prior to 1990, the applicant's skin problems would clear up while he was on vacation. Specifically, the skin problems completely cleared between December 1989 and March 1990 when he was off work because of his back injury. Almost immediately upon returning to work in 1990, the applicant developed a large flare-up of his dermatitis which persisted up to February 5, 1992, and beyond. Dr. Konetzki's notes consider this one continuous bout of dermititis, punctuated by a good period in January and February 1991. Dr. Konetzki considered the condition a work-related aggravation of a preexisting condition and noted that it would be possible for him to test the applicant to see if he were sensitive to chemicals he was exposed to at work.

The applicant also submits post-compromise practitioner's reports from Dr. Konetzki, dated August 10, 1992 and February 20, 1994, that diagnose atopic dermatitis. The reports indicate that exposure to chemicals in the applicant's janitorial job aggravated, accelerated and precipitated a preexisting condition of eczema, causing a permanent rash. Along with the rash, the applicant has recurrent infections, fissuring, splitting and weeping, making him unable to touch surfaces or fabrics with chemical residues. The doctor indicated he tried oral cortisone (a steroid), but that caused excessive mental symptoms. The doctor concluded that the applicant was unable to do most jobs, and assessed a permanent partial disability of 70 percent at both hands compared to amputation and 10 percent at both feet compared to amputation.

In his briefs and letters, the applicant contends his condition is so bad he cannot attend school or work. This is confirmed to some extent by Dr. Konetzki's practitioner's report which states that the applicant was unable to do most jobs.

The applicant argues his permanent disability and his inability to complete the retraining constitute important new evidence that justifies reopening the compromise. Specifically, he argues that his skin rash and eruptions turned out to be permanent, despite doctor's opinions at the time of the compromise suggesting it was contact dermatitis that would clear up. The change in diagnosis and prognosis, the applicant argues, is highly material since the applicant alleges his condition prevents him from completing the schooling he planned to take when he compromised.

However, before the compromise was signed, the applicant had been diagnosed by Dr. Meister as having contact dermatitis which prevented him from working as a janitor. Under the Wagner- Butler doctrine, a worker who suffers an occupational dermatitis that permanently sensitizes his skin so that the dermatitis will recur whenever he is exposed to chemicals may bring a claim to recover for impairment of wages caused by the permanent sensitization. Thus, at the time of settlement, the applicant had at least a potential claim for disability based on his permanent sensitization.

The commission appreciates that a permanent sensitization resulting in dermatitis only when exposed to certain chemicals is much different than the condition of having permanent disabling rashes and eruptions. It understands that the contact dermatitis condition the applicant may have thought he was settling turned out to be a much more disabling, always- present skin condition. However, Dr. Konetzki noted that the applicant's disabling bout of dermatitis caused by work began in March 1990 and continued through February 1992 and beyond. Thus, the applicant should have been aware that he had a potentially permanent condition when he signed the compromise in August 1991. Finally, of course, is the primary argument against reopening any compromise: the possibility that an injured worker's condition may worsen or improve or that the parties rely on a premature or inaccurate diagnosis is simply a risk of settlement.

Stated another way, the commission concludes that, prior to settlement, a reasonably prudent person would have had an expectation of a permanent disability from the skin condition in this case. Thus, the commission is not inclined to view the diagnosis by Dr. Konetzki as important newly-discovered evidence, or evidence of mutual mistake. Therefore, the application for review of compromise is dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application for review of compromise is dismissed.

Dated and mailed July 31, 1995
yenchga.wrr : 101 : 8  ND 10.5

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The presiding administrative law judge reopened the compromise. Specifically, he noted that when the applicant compromised his case, no doctor had yet opined that the applicant's condition would cause permanent disability, or at least cause the extent of permanent disability that it did. The administrative law judge also agreed that the "permanent disability" settled by the compromise referred to disability from the back injury, since no one contemplated permanent disability from the skin condition.

However, as stated above, the commission concluded that the medical record at the time of the compromise indicated a substantial likelihood of permanent disability from the skin condition. As a result, a post-compromise diagnosis of permanent disability is not "important newly-discovered evidence" sufficient to serve as a basis for reopening the compromise. Since this finding was not based on the credibility of any witness who testified, the commission did not confer with the administrative law judge under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: LOWELL E NASS
ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE


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