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


MICHAEL J VERBA, Applicant

MINIATURE PRECISION COMPONENTS, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996056345


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing in this matter on December 8, 1997. The ALJ issued his findings of fact and interlocutory order on January 20, 1998. The employer and insurer (collectively, the respondent) filed a timely petition for review with the Workers Compensation Division on January 26, 1998.

Prior to the hearing, the respondent conceded jurisdictional facts, and an average weekly wage of $760. The issues in dispute before the ALJ, and now before the commission, include: whether the applicant sustained a compensable injury on or about September 18, 1996 arising out of and occurring while performing services growing out of his employment with the employer; if such an injury is established, the nature and extent of disability therefrom; and the respondent's liability for medical expenses.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1968. He began working for the employer as a product designer in 1996.

The applicant began to have respiratory problems shortly after starting work for the employer. He had a constant cough, with wheezing and shortness of breath. His lungs crackled. The symptoms came on gradually, and when he was away from work for extended periods, he would notice that the symptoms went away. He began treating with B. Boran-Ragotzy, M.D., for this condition on September 10, 1996. Dr. Boran-Ragotzy recommended a Prednisone inhaler which did not help.

The applicant testified his last day of work with the employer was September 15, 1996. (1) This date appears borne out by Dr. Boran- Ragotzy's note of September 16, 1996 which was dictated on September 18, 1996 (exhibit 6, page 2), as well as Dr. Boran- Ragotzy's "Return-to-Work" slip dated September 12, 1996 (exhibit D.) After the applicant stopped working, his symptoms slowly resolved.

The applicant eventually came under the care of Jordan Fink, M.D. Dr. Fink diagnosed TDI (2) respiratory sensitivity due to workplace exposure, and recommended he avoid further exposure to TDI in the work place. Exhibit B. In more detail, Dr. Fink explained that the applicant suffered from

"an inflammatory pulmonary disorder with features of both hypersensitivity pneumonitis and asthma. This illness was related to his workplace and most likely due to ... [TDI] exposure... It is my opinion TDI is causative; however, other workplace environmental irritants may have played a role.... Mr. Verba has healed as of 12/19/96 when his pulmonary functions were normal. With avoidance of inhalation of TDI or other irritants, he should remain healed."

Exhibits A.

The applicant asked the employer if he could return to work in December 1996, but was not allowed to return. About that time, the applicant terminated from employment by Ron Hardwick. At the hearing, Mr. Hardwick acknowledged that no work was available to the applicant within the doctor's restrictions.

However, Mr. Hardwick testified TDI was not present at the Walworth plant where the applicant worked from April through September 1996, and is not now present at the Walworth plant. The employer also offered testimony from an industrial hygienist, Carol Chojnacki, employed by the insurer who performed quality testing in October 1996. In a report dated December 2, 1996, she concluded that "[the applicant's] work environment was free from dangerous chemical concentrations and not the source of a `lung disease'." Exhibit 7. However, Ms. Chojnacki tested the air quality only at the applicant's desk, not in other areas of the employer's plant where the applicant worked routinely. Moreover, Ms. Chojnacki did not test for TDI based on the employer's assertions it was not present.

In this case, however, the evidence about whether the applicant was actually exposed to TDI is relatively unimportant. That is because the employer's own IME admits that exposure to a substance in the employer's work place has caused the applicant to become permanently sensitized to that substance.

More specifically, in a letter to the respondent's attorney dated November 18, 1997, independent medical examiner Stuart A. Levy, M.D., explained that his diagnostic impression was:

"The development of cough, wheezing, dyspnea, fever, arthralgia, and myalgia when working at Miniature Precision Components, which gradually disappeared without recurrence after leaving work accompanied by initially abnormal pulmonary function studies, and the finding of transient rales on physical examination is consistent with development of hypersensitivity to an agent in the workplace, manifested by asthma and possibly hypersensitivity pneumonitis.

"The history of chronic recurrent sinusitis preceding his employment at Miniature Precision Components suggests that the work exposure exacerbated this pre-existing condition.

"His pulmonary function is now normal and he is asymptomatic. From the records available to me, I would conclude that a healing plateau was reached on December 19, 1996. He is not now disabled and has not sustained any permanent complications or sequelae as a result of his employment at Miniature Precision Components. He does not now have asthma and I believe was sensitized to a specific agent at work responsible for his symptoms. I do not expect him to develop recurrent symptoms if he is not re-exposed to the same agent."

Exhibit 2, report of Levy, page 4. In short, both the respondent's independent medical examiner and the applicant's treating doctor agree that exposure to a chemical substance in the workplace has permanently sensitized the applicant to that substance to the point that he must avoid further exposure to the substance.

The commission is aware that Ms. Chojnacki opined that the applicant's work environment was free of dangerous chemical concentrations and not the source of a lung disease. However, in addition to the fact Ms. Chojnacki tested only at the applicant's desk and did not test for TDI, she is a certified industrial hygienist not a licensed medical professional whose verified report is admissible as evidence of cause of disability. Wis. Stat. 102.17(1)(d). Further, Dr. Levy specifically considered Ms. Chojnacki's report, but still opined the applicant was sensitized to a particular agent at the employer's workplace and suggested that symptoms would recur if the applicant were again exposed to that same agent.

This case does not raise the credibility issue posed when the treating doctor bases his opinion of work sensitization on exposure to a chemical that is not actually present, while the IME opines that work exposure did not cause permanent sensitization. Nor is this a case where a worker with pre- existing asthma merely experiences asthma or other symptoms at work when exposed to a common substance to which the worker has always been sensitive. (3)   Finally, neither Wagner, Butler, nor any other case of which the commission is aware requires that an applicant must prove exactly what chemical substance or substances cause the permanent sensitization when the employer's own medical expert agrees that some chemical substance present at the employer's workplace does.

In sum, the applicant has proven an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment, and which permits the payment of compensation for permanent disability under the Wagner-Butler doctrine. (4)   More specifically, the applicant sustained a condition caused by a material period of workplace exposure which was at least a material contributory factor in the onset or progression of the condition. The date of disability was his last day of work with the employer, on or about September 15, 1996. Wis. Stat. 102.01(1)(g).

The next question is the extent of disability sustained by the applicant. The applicant was temporarily totally disabled from September 18, 1996 (the date claimed in his application) through December 18, 1996 (the day before the doctors agreed he had recovered). The applicant is therefore entitled to temporary total disability for a period of 13 weeks, at the weekly rate of $494 for a total of $6,422. The applicant was paid $3,469.97 by some source for short-term disability under a non-industrial disability policy; that amount shall be offset against the award for temporary disability pursuant to Wis. Stat. 102.30(7)(a). The additional amount awarded to the applicant in temporary disability, then, is $2,952.03.

The next question is the extent of permanent partial disability. The supreme court has provided some guidelines on how to calculate PPD in Wagner-Butler cases. In Wagner, the court wrote:

"The measure of disability in terms of percentage is the percentage of wage loss he has sustained as a result of being unable to do work in a machine shop or industrial plant where he was earning $1.89 per hour. On this ... point we quote 2 Larson, Law of Workmen's Compensation, p.1, sec. 57.00 as follows:

`Compensable disability is inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant's qualifications and training. The degree of impairment depends on impairment of earning capacity, which in turn is presumptively determined by comparing pre- injury earnings with post-injury earning ability; the presumption may, however, be rebutted by showing that post-injury earnings do not accurately reflect claimant's true earning power.'"

Wagner v. Industrial Commission, 273 Wis. 553, 565-66 (1956). Similarly, the court in Butler directed the commission to:

"evaluate the claimant's disability in terms of actual wage loss, based on the extent of impairment of earning capacity. We further determine that the record is complete as to the claimant's wages before and after the date of injury and, therefore, a new hearing is not necessary."

Butler, at 57 Wis. 2d 197. See also Neal & Danas, Workers Compensation Handbook, 5.32 (4th ed. 1997).

The employer's vocational expert, Timothy Greenya, opined the applicant sustained a 20-25 percent loss of earning capacity. However, it is pretty clear his opinion rests largely on an estimate of wage loss. In the final paragraphs of his report, he notes the applicant would have made $17.75 per hour in 1997 (assuming the employer's "usual" five percent wage increase) had he continued working for the employer. Industrial designers in the general labor market earn $14.18, yielding a loss of 20.11 percent. Mr. Greenya added five percent for lost access to the labor market.

Although the respondent did not present a contrary opinion from another vocational expert, it asserts that Mr. Greenya's opinion must be discredited in light of the facts of the case. The applicant was earning $760 per week when he stopped working for the employer in late 1996 and expected a five percent raise in 1997 which would have brought his weekly wage to $798. He was unemployed until March 1997, when he found a job paying $660 per week with less fringe benefits. In October 1997, he obtained a job paying $740 per week, with fringe benefits that are not as good as he had with the named employer, but better than the second job. On the other hand, the employer points out that the applicant's subsequent jobs involved a 40 rather than a 45-hour week. (5)

Comparing the applicant's expected weekly wage for the employer in 1997 ($798) with his 1997 starting wage for his current employer ($740), yields an actual wage loss of 7 percent. Even factoring in the difference in fringe benefits, the commission must conclude that Mr. Greenya's estimate of 20 to 25 percent loss of earning capacity is too high.) A comparison of pre-injury earnings with post-injury earning ability, as required by Wagner, requires a lower award. The applicant is a relatively young man whose education, training and experience in mechanical design has enabled him to find relatively high-paying employment despite his permanent sensitization from the work injury. Considering the factors set out in Wis. Admin. Code DWD 80.34, Mr. Greenya's report, and the rest of the evidence in the record (6), the commission believes an award of 15 percent is appropriate.

The applicant is therefore entitled to 150 weeks of permanent partial disability which, at the weekly rate of $169 per week, totals $25,350. As of the September 8, 1998, however, only 90 weeks of permanent partial disability (totaling $15,210) have accrued; 60 weeks (totaling $10,140) remains unaccrued.

The applicant approved an attorney fee of 20 percent on additional amounts awarded under Wis. Stat. 102.26. The future value of fee thus totals $5,660.41 (20 percent of $2,952.03 plus $25,350). However, as of September 8, 1998, only the fee attributable to the additional temporary disability and first 90 weeks of permanent disability ($3,632.41) has accrued. The fee attributable to the remaining 60 weeks of permanent disability ($2,028) remains unaccrued. The unaccrued portion of the fee is thus subject to an interest credit of $81.00 for advance payment, bringing the present value of the fee to $5,579.41. That amount, plus legal costs of $545.75 shall be paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days for disability compensation equals $13,983.87. This equals the sum of the additional temporary disability ($2,952.03) plus the accrued permanent partial disability ($15,210), less the accrued attorney fee ($3,632.41) and less costs ($545.75).

The amount due the applicant as it accrues after September 8, 1998 equals $8,112. This equals the unaccrued permanent disability ($10,140) less the future value of the unaccrued fee thereon ($2,028). This remaining amount shall be paid to the applicant in monthly installments of $732.33 beginning on October 8, 1998.

The commission further finds that the applicant incurred the following reasonable and necessary medical expenses to cure and relieve the effects of the work injury: $1,730.25 from MHS Physicians Service, all of which was either paid by Mercycare or adjusted from the bill; $1,851.45 from Mercy Hospital, of which $1,299.12 was paid by Commercial Insurance and $552.33 was adjusted from the bill; from Medical College of Wisconsin Physicians and Clinics, $1,051.00, of which $416.80 was paid by Commercial Insurance, $48.00 was adjusted from the bill, and $586.20 remains outstanding. The applicant also incurred $149.76 in medical mileage.

Because the applicant may require further treatment from the work injury if he is re-exposed to the offending chemical agent, jurisdiction is reserved to permit future claims for medical expense and disability.

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 an reversed in part.

Within 30 days from the date of this Order, the employer and its insurer shall pay all of the following:

1. To the applicant, Michael J. Verba, Thirteen thousand nine hundred eighty-three dollars and eighty-seven cents ($13,983.87) in disability compensation.

2. To the applicant's attorney, James Meier, the sum of Five thousand five hundred seventy-nine dollars and forty-one cents ($5,579.41) in attorney fees and Five hundred forty-five dollars and seventy-five cents ($545.75) in costs.

3. To whomever paid the applicant's short term disability benefits under the non-industrial policy, Three thousand four hundred sixty-nine dollars and ninety-seven cents ($3,469.97).

4. To Mercycare, One thousand seven hundred thirty dollars and twenty-five cents ($1,730.25) for medical expense reimbursement with respect to the bill from MHS Physician's Service, minus any adjustments made by MHS Physician's Service to that bill.

5. To Commercial Insurance, One thousand seven hundred fifteen dollars and ninety-two cents ($1,715.92) for medical expense reimbursement.

6. To Medical College of Wisconsin Physicians and Clinics Five hundred eighty-six dollars and twenty cents ($586.20) for medical treatment expense.

7. To the applicant, One hundred forty-nine dollars and seventy-six cents ($149.76) in medical mileage.

Beginning on October 8, 1998, and continuing on the tenth day of each month beginning thereafter, the employer and its insurer shall pay the applicant the sum of Seven hundred thirty- two dollars and thirty-three cents ($732.33) per month until the further sum of Eight thousand one hundred twelve dollars and no cents ($8,112.00) has been paid.

Jurisdiction is reserved for such further findings and orders as are consistent with this decision.

Dated and mailed: August 31, 1998
verba.wrr : 101 : 8 5.32

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not confer with the presiding ALJ about witness credibility and demeanor as its modification involved only the credibility of the opinion of vocational expert Greenya who did not testify at the hearing. Hermax Carpet Marts v. LIRC, case no. 97-1119 (Wis. Ct. App., June 23, 1998)(publication recommended), slip op. at 5.

cc: ATTORNEY JAMES A MEIER
MEIER WICKHEM SOUTHWORTH & LYONS SC

ATTORNEY MICHAEL J HICKS
HILLS & HICKS SC


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Footnotes:

(1)( Back ) The synopsis of the hearing shows this as September 15, 1997; the commission infers the applicant simply misstated the year.

(2)( Back ) TDI is a chemical used in manufacturing: toluene di isocyanate.

(3)( Back ) Garr v. Milwaukee Electric Tool Co., WC case. no. 93052431 (LIRC, March 6, 1996). Nor does this case pose the situation, present in many latex allergy cases, where the exposure and sensitization to latex at work has residual, permanently disabling effects which remain off-duty. See Lesica v. Family Health Plan (WC case no. 96022864 (LIRC, March 5, 1998). In such cases, because permanent disability may be quantified in terms of functional permanent disability, a more tradition permanent disability analysis applies.

(4)( Back ) Some degree of permanent residual limitation on a worker's ability to function is generally a prerequisite to a permanent partial disability award. See, for example, Butler v. ILHR Department, 57 Wis. 2d 190, 195-197 (1973); Neal & Danas, Worker's Compensation Handbook, sec. 5.15 (3d ed. 1990); and How to Evaluate Disability under Wisconsin's Worker's Compensation Law, page 2. However, the law provides an exception to the rule that an applicant must have some permanent, ratable functional impairment as a prerequisite for a permanent disability award: the so-called "Wagner-Butler" doctrine. See Wagner v. Industrial Commission, 273 Wis. 2d 553 (1956) and Butler, supra, at 57 Wis. 2d 190. Under the Wagner-Butler doctrine, a worker who suffers a "permanent sensitization" to certain chemical substances (e.g., a condition such as a contact dermatitis) because of work exposure may be eligible for permanent partial disability based on wage loss, even though the contact dermatitis completely clears up when he is away from work. Although the worker has no ratable permanent disability on a functional basis, the fact he can no longer perform his work has a very real permanent effect on earning capacity. The court fashioned the Wagner-Butler doctrine based largely on a concern that otherwise workers with contact dermatitis (a permanent condition that does not permit a permanent functional disability rating) would be left without a remedy. However, the court in the Butler case makes it clear, however, that the doctrine applies only to those cases where the partially disabling occupational disease cannot be measured objectively. Indeed, in Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 406 (1964), the court specifically rejected a claim that the Wagner-Butler doctrine applied to a case of silicosis and emphysema. The Kohler court noted that a physician could rate functional impairment to pulmonary impairment as a result of the silicosis, so the condition could be measured objectively.

(5)( Back ) The applicant testified his current job was for forty hours and told his vocational expert that the job with the employer was for 45 hours.

(6)( Back ) See Wis. Stat. 102.17(7).