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


RICHARD TYLER, Applicant

CITY OF ELROY, Employer

WAUSAU UNDERWRITERS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996062796


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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

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

Dated and mailed: July 29, 1998
tyler.wsd : 101 :  ND 3.41

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his application for hearing, the applicant claims disability from a severe case of shingles and post-herpetic syndrome, triggered by stress from the applicant's job as the employer's police chief. On appeal, the parties cite two recently-decided court of appeals decisions Milwaukee County v. LIRC, 205 Wis. 2d 255 (Ct. App., 1996) and UPS v. Lust, 208 Wis. 2d 306 (Ct. App., 1997).

In Milwaukee County, Ms. Neal was summoned to her supervisor's office where her job performance was criticized. She left the office and became dizzy and fell to the floor. She was hospitalized for four days prior to her release on a diagnosis of vasovagal syncope and hypertension. Ms. Neal claimed compensation for resulting disability and medical expense, and submitted an unrebutted opinion from a medical expert in support of her claim. The court of appeals held that the commission erred by failing to apply the "unusual stress test" applicable in cases of non-traumatic mental injury (1), as the commission failed to grasp the psychogenic nature of Ms. Neal's injury.

In Lust, Mr. Lust claimed stress from his job caused him to suffer a type of herpes zoster condition known as Ramsay-Hunt syndrome. The court of appeals affirmed the commission's conclusion and found that Mr. Lust's disability from the herpes zoster condition was compensable, even though the commission also specifically found that the unusual stress test did not apply. The Lust court distinguished the previously-decided Milwaukee County decision, stating the Milwaukee County case involved physical symptomology from an emotional injury, while Mr. Lust had suffered an actual physical injury from stress in the workplace. The Lust court noted that even the Milwaukee County court implied that actual physical injuries from mental stress fall outside the reach of the unusual stress test. Concluding that Mr. Lust had sustained an actual physical injury, rather than mere physical symptoms from a mental injury, the court found his injury to be compensable even in the absence of the unusual stress test.

In support of his claim, the applicant in this case offers the expert medical opinion of Lea G. Cornell, M.D. Dr. Cornell explains that the applicant had a latent herpes zoster virus in his system as a result of a nonwork-related, long-resolved episode of chickenpox. The doctor opined that job stress over time was the material causative factor in the progression and onset of the applicant's condition, by precipitating, aggravating and accelerating the preexisting dormant herpes zoster virus into becoming an active and progressive condition commonly called shingles.

As a result of the active shingles condition, the doctor explained, the applicant developed lesions on his scalp and into the orbit of his eye. The condition threatened the applicant's eyesight, and caused him to be hospitalized. The condition has left the applicant with post herpetic syndrome, which is manifested by severe pain in the scalp even though the physical eruptions have healed. The pain remains, the doctor explained, as a result of nerve inflammation or damage caused during the active stage of the virus.

The doctor also explained that, while the pain is controlled by medication, stress at work continues to aggravate or inflame the nerves causing pain. The doctor also reported that he allowed the applicant to attempt to return to work part-time, but the reduction in hours really has not helped. Accordingly, he concluded that the applicant's health requires he be removed permanently from the stressful environment of law enforcement, and that he avoid any stressful work environment. Stressful employment, the doctor explained, creates the risk of another outbreak of shingles which could destroy his eye.

The doctor also described the applicant's depression, caused as a result of his pain from the shingles and his removal from duty. The doctor opined the health care expenses in the applicant's WC-3 form were reasonable and necessary. He rated permanent disability on a functional basis at ten percent compared to disability to the body as a whole, not counting the effects of the depression.

ALJ Endter found for the applicant relying on Lust. She concluded that the applicant sustained a non traumatic mental injury by aggravating a preexisting condition beyond its normal progression. She awarded temporary disability, but ordered it paid to the employer as a credit against the sick time it paid. The ALJ also ordered payment of medical expenses, and left her decision interlocutory with respect to permanent disability. She did not order payment of an attorney fee, however, because no disability compensation benefits were actually paid to the applicant.

The ALJ also noted that the applicant did not prove unusual stress. Nonetheless, based on the Lust decision, which is very close on the facts, she concluded the applicant did not have to prove unusual stress, and so could prevail on a simple causal connection between the job stress and the shingles. This connection, of course, was provided by Dr. Cornell's unrebutted medical opinion.

Both parties appeal.

The respondent contends that the ALJ erred in not denying benefits based on School District No. 1 and the unusual stress test. The respondent argues that Lust was incorrectly decided and that the commission should therefore follow Milwaukee County instead.

In essence, the respondent argues that Lust mixes apples and oranges, by treating the physical symptoms from the mental stress as a separate injury. Under the respondent's argument, the effects of the active herpes zoster virus are merely "symptoms" of the stress and not a separate "condition;" the injury is the mental stress and should remain noncompensable unless the stress is unusual or extraordinary. In other words, the respondent asserts that all mental injuries have certain physical symptoms: sleeplessness, loss of appetite, dizziness, etc. Indeed, the very diagnosis of mental illness depends on observation of these symptoms. It is illogical, the respondent concludes, to compensate mental stress claims when the physical symptoms are disabling, and not compensate them when they are not.

However, this is not a case where a doctor has diagnosed "sleeplessness" or "loss of appetite." Rather, the only medical expert to offer an opinion in this case has diagnosed the condition of herpes zoster. Under these circumstances, the commission may not conclude that the herpes zoster condition is merely a symptom of depression and not a separate diagnosable condition, Leist v. LIRC, 183 Wis. 2d 450, 461-62 (1994). In other words, the medical record in this case establishes that herpes zoster is not a symptom of depression, but rather a condition (like depression) caused by mental stress. Indeed, the unrebutted opinion of Dr. Cornell separates the disability caused by the depression from the disability caused by the post herpetic syndrome.

Finally, to the extent Milwaukee County may be read to require application of the unusual stress test even where the mental stress causes a physical "injury" as opposed to a "symptom," the court of appeals has expressly disavowed that reading in its subsequent decision in Lust. (2) The commission's function is to follow the holdings of the court of appeals, not to presume to correct them. While the respondent believes the court of appeals' final word in Lust is unsatisfactory and no doubt wishes to preserve that argument for the purposes of future appeal, the commission must apply Lust unless the court of appeals or supreme court announces a new or clarified rule.

In its reply brief, the respondent also argues that this case is distinguishable on the facts from Lust because the applicant here had no previous outbreak of shingles. For this reason, the respondent argues, the applicant does not have a pre- existing progressively degenerative condition. However, the pre- existing condition, as Dr. Cornell explained, is not the full- blown active herpes zoster condition, but the dormant herpes zoster virus remaining from the chickenpox exposure. Again, Dr. Cornell's opinion is not rebutted. Leist, supra. (3)

The respondent responds that it was precluded from presenting contrary medical evidence by the ALJ's refusal to postpone the hearing. However, while the applicant waited until the eleventh hour to submit his treating doctor's expert medical opinion, it was timely under Wis. Stat. 102.17(1)(d). As the ALJ pointed out, however, the Lust decision was issued a year before the hearing. The respondent could have demanded Dr. Cornell's treatment notes and scheduled an independent medical examination before receiving Dr. Cornell's practitioner's report on form WC-16B.

Finally, the applicant's attorney argues he should receive fees on the temporary total disability that the insurer is required to pay to the employer for credit against sick time. Fees are an issue generally left to the department's discretion. See Wis. Admin. Code 80.43. Moreover, since the applicant received payment for his lost time from another source (and it is that source that the insurer is required to reimburse), this situation is analogous to the payment of medical expenses. The administrative code provides that no fees are paid on medical expenses. Wis. Admin. Code 80.43 (2).

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a difficult case because there are two court of appeal decisions which would suggest different results for this case.

The first case is Milwaukee County v LIRC, 205 Wis. 2d 255 (Ct. App., 1996) which found that Mrs. Neal's claim was not compensable. Mrs. Neal claimed that stress from a supervisor's criticism of her performance caused her to have tightness across her chest and she fainted. She was treated at the hospital for chest pain, chest pressure and high blood pressure. She was diagnosed with vasovagel syncope and hypertension. She was also treated for anxiety attacks and sleeplessness. The court required the applicant to meet the School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974), test which requires that mental injuries nontraumatically caused must have resulted from situations of greater dimensions than day-to-day emotional strain and tension which all employees must experience.

The second case is UPS v Lust, 208 Wis. 2d 306 (Ct. App., 1997) which did not apply the unusual stress test. It only required the applicant to show that there was a physical injury caused by the emotional stress. The requirement is that the work activity precipitate, aggravate, and accelerate beyond normal progression a progressively deteriorating or degenerating condition. This is the Lewellyn v. ILHR Department, 38 Wis. 2d 370 (1974), test. It is often referred to as the Lewellyn 3 test. This is applied to a preexisting degenerative condition or disease which is accelerated beyond its normal progression. The facts of the case involved a UPS delivery driver who developed depression and also had Ramsay-Hunt syndrome, a type of shingles or herpes zoster which affects the ears. The employe had symptoms of weight loss, nightmares, nervousness and shaking. He was hospitalized for depression and anxiety. The court made mention of the Milwaukee County case and said that "Implicit in this language is the conclusion that actual claims of physical injury fall outside the reach of School District No. 1. Because Milwaukee County speaks only to physical injury claims based on physical symptomatalogy of mental injury, it does not bear upon this case."

I have difficulty seeing that Milwaukee County and Lust are different cases. I would apply Milwaukee County and the School District No. 1 unusual stress test to this case. The stress that the applicant encountered included working longer hours because one officer quit and the replacement did not work out. He had a bad criminal investigation where a baby was immersed in hot water. The city's main street was dug up for road work and he had to be on constant duty during the city's annual fair. The Governor attended the fair so there was need for additional security. This is not enough to reach the School District No. 1 standard of unusual stress for a law enforcement officer. The administrative law judge also noted that the applicant did not meet the unusual stress standard.

This case presents some problems because the respondent prepared to litigate the case as an unusual stress case under Milwaukee County and School District No. 1. At the hearing the administrative law judge ruled that the Lust case was decided in early 1997 so the respondent had ample time to get an independent medical report prior to the hearing. The applicant submitted his medical opinion 18 days before the hearing which is timely. The respondent asked for a postponement to get an independent medical opinion but that request was denied. Therefore there is only one medical opinion.

The medical opinion presented by the applicant's doctor found that the applicant's work caused his injury under both the Lewellyn 3 standard and also as an occupational disease. The Merck Manual, Fourteenth edition, says " Herpes Zoster an acute CNS infection involving primarily the dorsal root ganglia and characterized by vesicular eruption and neuralgic pain in the cutaneous areas supplied by the peripheral sensory nerves arising in the affected root ganglia. Etiology, Incidence, and Pathology- Herpes zoster is caused by the varicella-zoster virus that causes chickenpox. It may be activated by local lesions involving the posterior root ganglia, by systemic disease, particularly Hodgkin's disease, or by immunosuppressive therapy. It may occur at any age but is most common after age 50. Inflammatory changes occur in the sensory root ganglia, the posterior horn of the gray matter, the meanings, and the dorsal and ventral roots."

The applicant's doctor says "reactivation can occur at any time and can be triggered by illness, immune suppression, dehabilitation, advancing age (age greater than 70) and/or stress." The doctor then says does not have any of the first four so stress caused his reactivation.

I have trouble with the applicant's doctor's position because I have never heard of shingles as an occupational disease. He does not explain how shingles is a "deteriorating or degenerative condition that is precipitated, aggravated and accelerated beyond its normal progression." Since shingles is caused by a virus it is not like multiple sclerosis, Parkinson's disease or lupus. While a person may have some permanency due to scarring from shingles, once the attack is over the person usually has immunity. I think this is really the kind of case that the Milwaukee County case would have applied the unusual stress test.

Therefore, I would reverse and deny benefits in this case because I would find that the applicant did not have unusual stress.

Pamela I. Anderson, Commissioner

cc: ATTORNEY CHARLES E HANSON
HALE SKEMP HANSON SKEMP & SLEIK

ATTORNEY MARK W PARMAN
STILP AND COTTON


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Footnotes:

(1)( Back ) School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974).

(2)( Back ) The Lust holding is consistent with the approach advocated by the pre-eminent commentator on workers compensation, Professor Arthur Larson. In his text, Larson treats mental-mental injuries as analytically separate from mental- physical injuries. He reports that mental-mental injuries are subject to an unusual stress test in some jurisdictions including Wisconsin. Larson, Workers Compensation Law, 42.25 (f) (MB, 1997.) On the other hand, Larson describes mental-physical injuries as uniformly compensable, Larson, 42.21 (a) and (d).

(3)( Back ) The dissenting commissioner relies, to a large extent, on a discussion of herpes zoster in the Merck Manual, 187-88 (14th ed., 1982). However, neither party introduced the Merck Manual into evidence as a learned treatise or otherwise. Consequently, the commission is not inclined to view the manual as a evidence supporting a denial of benefits in the face of Dr. Cornell's report. Leist suggests that in order to rely on a medical text as basis for legitimate doubt with respect to a claim for benefits, the medical text must be evidence in the record. Id., at 183 Wis. 2d 460-61. Beyond that, while the Merk Manual does state that most patients recover from herpes zoster without residua, Dr. Cornell had the beneift of actually examining the applicant to determine whether he fit that general rule. The dissenting commissioner also questions Dr. Cornell's opinion because the dissenting commissioner has never heard of shingles as an occupational disease. However, in Lust the shingles-variant, Ramsay-Hunt syndrome was found compensable on the theory that work stress aggravated a preexisting condition beyond its normal progression which is essentially the same opinion given by Dr. Cornell in this case.