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


SHARON A GARR, Applicant

MILWAUKEE ELECTRIC TOOL CORP, Employer
(C/O ESSTAR INDUSTRIES)

TRAVELERS INDEMNITY CO OF ILLINOIS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93052431


The administrative law judge issued his findings of fact and interlocutory order in this case on September 8, 1995, following a hearing on August 14, 1995. 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, an average weekly wage of $546.60, and an August 9, 1993 compensable injury in the nature of an occupational disease. The respondent conceded and paid $364.55 in temporary total benefits from August 9 to 17, 1993.

The issues at the hearing were the nature and extent of disability beyond that conceded, liability for medical expenses, and whether the applicant was entitled to an interlocutory order on claims for vocational rehabilitation, unreasonable refusal to rehire, and future medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. The commission hereby affirms the administrative law judge's findings of fact and interlocutory order, except as modified herein:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first eight paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The ninth through sixteenth paragraphs of the administrative law judge's Findings of Fact are deleted, and the following substituted therefor:

"The next issue is liability for medical expenses. No itemization on form WC-3 was introduced at the hearing. The parties agreed that the applicant pays about $12 per month (a thrice monthly co-payment of $4) for prescription medications needed to combat the asthma, and that she has been making such payments from September 1993 until the date of the hearing. However, there is no evidence in the record to establish that work exposure caused the applicant to need to take the medication, or contributed to that need, particularly after her decrease in symptoms after she started working in August 1993. The applicant's claim for medical expenses must be denied on this record.

"The next issue is whether to issue an interlocutory order to reserve jurisdiction for a possible claim for vocational rehabilitation benefits under secs. 102.61 and 102.43 (5), Stats. The federal vocational rehabilitation laws require, as a pre-condition to receiving vocational rehabilitation services, that a person be an "individual with a disability." That term is defined to mean an individual who has a physical or mental impairment which constitutes or results in a substantial impairment to employment and who can benefit in terms of employment outcome from rehabilitation services. An "employment outcome" means entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market. 29 USC, secs. 701, 706 (5) and (8)(A), and 723. The state vocational rehabilitation laws, under which the division of vocational rehabilitation (DVR) operates, use substantially similar definitions. Section 47.01 (2) and (3), Stats. Given these definitions, the commission concludes that the vocational rehabilitation laws require some long term, if not permanent, impairment to employment as a prerequisite to receipt of vocational rehabilitation services.

"In this case, the applicant's underlying asthma condition may be viewed as a permanent disability that causes restrictions in her occupational choices and, as such, a permanent or long term impairment to employment. However, the impairment was not caused by a work injury or work exposure. On this record, the most that may be said is that occupational exposure or activity with the employer caused a temporary aggravation of the asthma condition, from which the applicant recovered without permanent disability or restrictions. The fact that the applicant's doctor imposed greater occupational restrictions after her recovery from the occupational exposure does not mean that the restrictions were caused by the occupational exposure. Rather, the additional restrictions were simply the result of Dr. Sherman gaining a better understanding of the underlying asthma condition.

"In sum, the applicant's underlying asthma condition may amount to a disability which qualifies her for vocational rehabilitation services. However, that does not resolve the threshold question of whether the employer is liable under sec. 102.43 (5) and 102.61, Stats. In this case, the "handicap" or "disability" causing DVR to certify the applicant for vocational rehabilitation services was not caused by work. The applicant's vocational rehabilitation claim is dismissed.

"In addition, the commission concludes from the record that the applicant will not sustain additional disability from the occupational exposure at issue here, given Dr. Sherman's opinion that she recovered without permanent disability from that exposure. This order is therefore final on the issues of permanent and temporary disability and medical expenses. Jurisdiction is reserved, however, on the applicant's unreasonable refusal to rehire claim against the employer."

The administrative law judge's Interlocutory Order is deleted and the second and third paragraphs of the Modified Interlocutory Order set out below are substituted therefor.

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

MODIFIED INTERLOCUTORY ORDER

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

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

1. To the applicant, Sharon A. Garr, Six hundred thirty-one dollars and eighty-six cents ($631.86) in temporary total disability benefits.

2. To the applicant's attorney, M. Nichol Padway, One hundred fifty-seven dollars and ninety-seven cents (157.97) in attorney fees.

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

Dated and mailed March 6, 1996
garrsh.wrr : 101 : 0  ND 5.39 5.32

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The main issue on review was whether the applicant was entitled to an interlocutory order as to vocational rehabilitation. The respondent's argument is that it should not have to pay for vocational rehabilitation without a finding of permanent disability, and there can be none in this case given the reports of both the independent medical examiner and the treating doctor. The applicant argues that the fact that her asthma is or would be continually exacerbated by occupational exposure is enough to allow her to qualify for vocational rehabilitation.

The administrative law judge accepted this argument. He conceded that vocational rehabilitation benefits under sec. 102.43 (5) and 102.61, Stats., are normally awarded only in cases of permanent disability, citing Neal and Danas, Worker's Compensation Handbook, sec. 5.13 (3d ed. 1990). However, the administrative law judge went on to say that nothing in the statutes requires permanent disability as a pre-condition to a vocational retraining award.

This, of course, is true. All that is required under sec. 102.61, Stats., is a receipt of "compensation." That term is defined under sec. 102.01 (1)(am), Stats., to mean "worker's compensation." Worker's compensation includes temporary disability benefits as well as permanent disability benefits. Theoretically, then, a worker who only receives temporary disability could qualify for retraining.

In fact, the department's rules state that in cases of no permanent disability or disability causing less than 100 weeks of PPD, it is presumed that no vocational retraining is necessary, in the absence of evidence to the contrary. Section IND 80.49 (3), Wis. Admin. Code. That rule was questioned by the court of appeals as contrary to the requirement under Massachusetts Bonding & Insurance Co. vs. Industrial Commission, 275 Wis. 505, 512 (1957) that vocational rehabilitation be paid in the absence of DVR abuse of discretion. (1) However, the rule does support the proposition that, in some cases, vocational rehabilitation might be appropriate even in the absence of permanent disability.

One such instance is illustrated by a recent LIRC decision in Steven Mand v. Quad Graphics, claim no. 93004055 (LIRC, January 18, 1995). In that case, no permanent partial disability had ever been rated, conceded or awarded or paid, but the applicant's doctor had imposed permanent restrictions which he related to the work injury. The commission allowed vocationa retraining benefits based on the permanent restrictions caused by the work injury, even though no permanent disability had actually been rated.

In doing so, though, the commission noted specifically that it read the relevant medical reports to state that work activity or exposure caused an injury giving rise to the restrictions. Mand, supra, slip opinion at 11. In this case, no such statement may be made. True, the applicant's sensitivity to certain airborne irritants became apparent following work exposure, and the exposure even caused temporary disability. However, no doctor has stated that the exposure either caused the applicant's asthma condition or made it permanently worse. Consequently, the commission cannot conclude the work exposure actually made necessary the restriction against working in places with chemical irritants. The underlying asthma condition did that.

Nor may the commission accept the argument that the possibility of chronic temporary disability if the applicant were to return to work makes the disability permanent and vocational retraining appropriate. Current law does provide an exception to the general 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 v. DILHR, 57 Wis. 2d 190, (1973). Under the Wagner-Butler doctrine, a worker who suffers a "permanent sensitization" to certain chemicals because of work exposure may be eligible for permanent partial disability based on wage loss, even though the effects of the sensitization completely clear 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 conditions like contact dermatitis (a permanent condition that does not permit a permanent functional disability rating) would be left without a remedy. The court in the Butler case makes it clear, however, that the doctrine applies only to those cases where the permanently 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.

Arguably, then, the Wagner-Butler doctrine should not apply to asthma cases which also involve pulmonary impairment. In any event, no doctor has opined that the exposure to chemical irritants caused the applicant to be permanently sensitized to airborne irritants when she was not before. Rather the applicant should avoid exposure to chemical irritants because it causes the symptoms of the otherwise-present asthma to be exacerbated.

In short, the commission does not believe it has the authority to award vocational rehabilitation benefits in this case because work exposure is not the cause of the condition for which vocational rehabilitation services are sought. The commission therefore dismisses the applicant's claim under sec. 102.43 (5) and 102.61, Stats.

The commission did not confer 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). Witness credibility and demeanor were not a factor in the commission's modifications, which involved primarily questions of law.

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

ATTORNEY M NICOL PADWAY
PADWAY & PADWAY LTD


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Footnotes:

(1)( Back ) Dane County Hospital and Home v. LIRC, 125 Wis. 2d 308, 324-26 (Ct. App., 1985).