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


SUSAN CAROL LESICA, Applicant

FAMILY HEALTH PLAN, Employer

UNITED STATES INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96022864


The administrative law judge issued his findings of fact and interlocutory order in this case on July 18, 1997, following a hearing on March 25, 1997. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $314.16. At issue at the hearing was whether the applicant sustained an injury growing out of her employment while performing services growing out of or incidental to her employment and, if so, the nature and extent of disability and liability for medical expenses is also at issue. Before the commission, the dispute centered on whether it was appropriate to award permanent partial disability on the basis of functional impairment and, if so, the extent of that impairment.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked for the employer, Family Health Plan Clinic, as a medical technician from January 1983 to July 1987 when she left to raise her child. She returned to work for the employer in January 1995. Prior to her return to work she did not have symptoms of latex sensitivity or contact dermatitis.

In March 1995, the applicant began experiencing symptoms of shortness of breath and wheezing. She did not work on a regular basis after April 7, 1995. In December 1995, the applicant began treating with Kevin Kelly, M.D., a specialist in immunology. He noted symptoms of wheezing, nasal congestion, throat tightening rhinorrhea, and throat and ear itching. Dr. Kelly performed skin testing which revealed a latex allergy. He noted that the applicant began experiencing symptoms outside of the workplace, for which he prescribed a Proventil inhaler.

Dr. Kelly diagnosed latex allergy and occupational rhinitis and asthma. He testified that the applicant's job with the employer would involve contacting or inhaling latex. He noted powdered latex gloves were used at the employer's institution, and that the vast majority of latex exposure is from gloves. He testified that work was a precipitating cause and contributed to her condition.

In a form practitioner's report dated February 26, 1996, Dr. Kelly opined that the applicant's condition was caused by an appreciable period of workplace exposure. In that report, he rated permanent partial disability for persistent respiratory symptoms at five percent compared to permanent total disability. He noted her off duty problems were only occasional and so justified a five percent rating, but that her condition could change. He opined her prognosis was guarded due to the likelihood her sensitization was permanent, and the possibility her condition could progress into anaphylaxia.

In a subsequent report on February 28, 1997, Dr. Kelly reported that the applicant had significantly limited her activities outside the home because of reactions to latex. As a result, she was stable with intermittent reactions and respiratory symptoms. Noting the significant limitation on movement outside the home, he increased his disability rating to 25 percent. At the hearing he explained that her condition at the time of the hearing was different than when he rated five percent permanent disability because she had developed considerable reactivity in her body.

The respondent submits the report of S.R. Hirsch, M.D., who examined the applicant in November 1996. He diagnosed allergic rhinitis, early bronchial asthma, latex hypersensitivity, and possible sinusitis. He opined that the applicant's employment in 1995 could be sufficient to develop a permanent sensitization to latex. However, he thought due to relatively rapid departure from the sensitizing work environment, her degree of sensitivity was relatively small. He rated permanent partial disability at five percent and opined that the applicant had a better prognosis than most cases of latex hypersensitivity because of her earlier recognition of her symptoms and her successful treatment of her atopic symptoms.

The record establishes that the applicant has sustained an injury arising out of her employment with the employer, while performing services growing out of or incidental to that employment. IME Hirsch all but agrees with Dr. Kelly's conclusion that the applicant's disabling condition was caused by occupational exposure to latex at the employer's workplace. The commission therefore adopts as credible Dr. Kelly's opinion that the applicant has developed a latex allergy, as well as occupational rhinitis and asthma, from an appreciable period of work place exposure to latex while working for the employer.

The commission cannot, however, adopt Dr. Kelly's increased rating of functional impairment to twenty-five percent compared to permanent total disability. Dr. Kelly's explanation is that her condition worsened from causing only intermittent or occasional off-duty symptoms to causing off-duty symptoms so severe that she had to restrict significantly her activities outside of her home. He thus concluded she had increased reactivity. This explanation, of course was based largely on the applicant's complaints of an increase in her symptoms in July 1996. However, the applicant's hearing testimony does not support the conclusion that her condition dramatically worsened in July 1996. Moreover, Dr. Kelly does not persuasively explain the degree of his increased functional impairment rating, a five- fold increase from five to 25 percent compared to disability to the whole body.

The commission nonetheless finds that the applicant's condition has in fact worsened since Dr. Kelly first rated permanent partial disability, as the doctor opined it might. However, given the record at the hearing, the commission concludes that the applicant's current permanent partial disability on a functional basis is ten percent compared to permanent total disability, or five percent more than the original rating given by both medical experts.

Because of the applicant's delay in seeking medical attention, she is entitled to temporary total disability only for the three-day period from December 27, 1995 to January 1, 1996 (both days exclusive). At two-thirds of her average weekly wage of $314.16, the applicant's weekly compensation rate for temporary total disability is $209.44 per week. Three days (or one-half week) of temporary total disability therefore equals $104.72.

The applicant is also entitled to 100 weeks of permanent partial disability. At the statutory maximum of $164 per week for injuries sustained in 1995, this equals $16,400, all of which is accrued.

The total amount in disability compensation awarded under this order, then, is $16,504.72. The applicant agreed to an attorney fee of twenty percent of additional amounts awarded under Wis. Stat. 102.26. The fee equals $3,300.94, and shall be deducted from the applicant's total award. The amount remaining to be paid to the applicant within thirty days is $13,203.78.

The applicant also incurred the following reasonable and necessary medical treatment expense to cure and relieve the effects of the work injury: from Froedtert Hospital, the sum of $2,031.74, of which the insurer paid $1,842.81 (1) and the applicant paid $188.93; from Drug Emporium for various prescription expenses, the sum of $362.40, all of which the applicant has paid out of pocket; and for medical mileage, the amount of $98.28.

Because the applicant may need further medical treatment to cure and relieve the effects of the work injury, and may file a claim for additional compensation, this order shall be left interlocutory.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within thirty days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Susan Carol Lesica, Thirteen thousand two hundred three dollars and seventy-eight cents ($13,203.78) in disability compensation.

2. To the applicant's attorney, Charles Rustin, Three thousand three hundred dollars and ninety-four cents ($3,300.94) in fees.

3. To the applicant, the sum of Five hundred fifty-one dollars and thirty-three cents ($551.33) for reimbursement of out-of-pocket medical expense and Ninety-eight dollars and twenty-eight cents ($98.28) for medical mileage.
Jurisdiction is reserved for such other findings and orders as may be warranted consistent with this order.

Dated and mailed: March 5, 1998
lesicca.wrr : 101 : 5  ND 5.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ pointed out that the determination of the extent of disability depended to a large degree on credibility of applicant's description of her symptoms. The ALJ explained that he found the applicant's testimony about her symptoms to be credible. The commission in no way disputes the ALJ's impression of the applicant's demeanor. However, for the reasons set out in the body of this decision, the commission was left with legitimate doubt about Dr. Kelly's increased permanent partial disability award of 25 percent.

On appeal, the respondent asserts that this case is analogous to the Wagner-Butler cases, and that therefore an award for permanent disability may not be made on an estimate of functional impairment, but only on a vocational analysis. Alternatively, the respondent asserts that, if the commission were to consider an estimate of functional disability to be appropriate, the commission should reduce the award to five percent compared to permanent disability to the body as a whole.

The commission acknowledges that, under the Wagner-Butler (2) doctrine, it is inappropriate to base permanent disability on a functional rating. The distinguishing feature of the Wagner-Butler line of cases is that work exposure causes a permanent sensitization to a workplace chemical where no sensitization existed before, and which only arises at the employer's work place or at a similar place of work. In Wagner, for example, the injured worker developed a contact dermatitis from long term exposure to coolants, cutting oils and cyanides. The dermatitis would recur whenever Wagner was exposed to the substances, but clear when he would eliminate his exposure to them. Thus, there was no way to measure functional permanent disability for residual symptoms when Wagner was off-duty. (3)

The supreme court recognized that to require permanent residual disability, in the sense of a disability that remained off-duty, in these types of cases would result in failing to compensate a worker for a very real and permanent effect on his ability to earn wages. Consequently, the court concluded the injured worker should be compensated by actual wage impairment of wages, expressed as a percentage of the 1,000-week base for unscheduled permanent disability under Wis. Stat. 102.44 (3). Under the Wagner-Butler doctrine, then, a person is entitled to compensation for the impairment to his wage-earning ability if work caused a permanent sensitization to a substance to which he was not permanently sensitized before, but because the condition "clears" off duty permanent disability cannot be measured in terms of permanent impairment of function.

In this case, the applicant does not merely have a permanent sensitization to latex which occurs only when she is exposed to latex at work. Rather, both doctors acknowledge she has asthma that remains symptomatic when she is exposed to latex in her off- duty life. Because she has a permanent functional disability that never "clears" but remains symptomatic even when exposed to latex off-duty, the Wagner-Butler analysis does not apply. Indeed, the commission has so held in prior latex sensitivity/asthma cases. Donna Schaefer v. County of Walworth, WC claim no. 96024272 (LIRC, January 14, 1998), and Brenda Joyce Woodhull v. Kimberly Kind, DDS, WC claim no. 94033581 (LIRC, October 30, 1997).

cc: ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY CHARLES L RUSTIN


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Footnotes:

(1)( Back ) Based on ALJ Mitchell's order and the applicant's handwritten note in exhibit C, the commission assumes that the named insurer paid this amount.

(2)( Back ) Wagner v. Industrial Commission, 273 Wis. 553 (1956), mandate modified 273 Wis. at 567a (1957) and Butler v. DILHR, 57 Wis. 2d 190 (1973).

(3)( Back ) On the other hand, if permanent disability may be measured objectively, such as by pulmonary function tests in cases of emphysema and silicosis, then the Wagner-Butler doctrine does not apply. Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 406 (1964).