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


GEORGE HOPPE, Applicant

AMPCO METAL MFG INC, Employer

FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92027782


An administrative law judge for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, 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 August 31, 1995
hoppege.wsd : 101 : 8 ND 3.4 5.38

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

MEMORANDUM OPINION

Petitions for review have been submitted both by the employer and insurer Fire & Casualty Insurance Company of Connecticut (collectively, Fire & Casualty) and by the applicant. Fire & Casualty asserts that the administrative law judge erred in finding a February 15, 1991 date of injury and asserts that the date of injury was in 1989, before Fire & Casualty came on risk. The applicant asserts that the administrative law judge erred in failing to award benefits for permanent disability or, alternatively, for failing to award benefits under sec. 102.565, Stats.

1. Date of injury.

The first issue is the date of injury: was it sometime in 1989 or 1990, when the applicant saw medical practitioners for evaluation of his pulmonary system, including symptoms of dyspnea? Or was it not until the applicant's last day of work, February 15, 1991? Since different insurers were on risk during these periods, the issue ultimately will decide which insurer is liable.

The statutes define "date of injury" in sec. 102.01 (2)(g), Stats., as meaning:

"1. In the case of accidental injury, the date of the accident that caused the injury.

"2. In the case of disease, the date of disability, or if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer for whose employment caused the disability."

Since this case involves a disease rather than an accidental injury, it is the second part of the definition that is relevant.

The commission and the department have consistently held that the day of disability may be the first day of lost wages because of the disability, and that includes wages, sick leave or vacation time lost for a doctor's visit. General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 179-81 (Ct. App., 1991). Stated another way, the date of disability has consistently been interpreted by the commission to be the first date of wage loss through lost work time attributable to the effects of the occupational disease. Adams v. Cub Foods, claim no. 91-074342 (LIRC, March 31, 1993).

On the other hand, a doctor's visit concerning a condition that is not, or has not yet become, an occupational disease may not be determinative. For example, an injured worker may have a pre-existing degenerative disease not caused by work, but claims a work injury compensable under ch. 102, Stats., for the precipitation, aggravation, and acceleration of that pre-existing disease beyond its normal progression by work activity. The underlying degenerative condition alone is not a compensable disability. Thus, prior treatment for the pre-existing degenerative condition which has not yet been aggravated into a work injury does not determine the date of injury. See, for example, Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982). The commission has followed this reasoning in rejecting arguments that a doctor's visit prior to the last day of work must necessarily determine the date of injury in Terry Melvin v. Best Line Inc., case nos. 93044101 and 94037949 (LIRC February 8, 1995) and Dale Norenberg v. Miron Construction Company Inc., case no. 94033753 (May 25, 1995).

In this case, the administrative law judge found the last day of work to be the date of injury because the "conclusive diagnosis of silicosis" was first made in September 1992 by Dr. Schlueter and because the applicant continued to be exposed to dust and silica until his last day of work for the employer in February 1992. The administrative law judge was clearly correct in finding that Dr. Schlueter made the first conclusive diagnosis of silicosis in September 1992. Drs. Knight and Baldwin raised the possibility of silicosis or early silicosis, but their notes also indicate uncertainty about the diagnosis. Indeed, the primary reason that Dr. Baldwin referred the applicant to Dr. Schlueter in March 1992 was that Dr. Schlueter was the expert who could make the conclusive diagnosis.

However, the fact that the diagnosis of silicosis was conclusively made in September 1992 alone is not determinative. Rather, the important date is the first date that the applicant missed work or lost wages because of an occupational disease, even if the occupational disease is not conclusively diagnosed until later. Thus, if worker sees a doctor about a condition that is not determined to be an occupational disease until later, the office visit might still be the date of injury if it may be said that the then-undiagnosed occupational disease was the reason for the visit.

In this case, Dr. Schlueter did not opine in his September 28, 1992 report that the applicant had silicosis going back to 1989 or 1990, only that he had developed it as of September 25, 1992. Further Dr. Knight's practitioner's report states that she has treated the applicant since 1985, not that he has had silicosis since that time. As noted above, Dr. Baldwin stopped short of diagnosing silicosis with any degree of medical certainty in 1989 and 1990. Rather, his reports are read to indicate that in the absence of progression of symptoms, no such diagnosis could be made.

In short, the commission would have to infer that the applicant's medical appointments were in fact related to disability from silicosis, an inference which in the absence of a definite doctor's opinion might be characterized as an exercise of cultivated intuition. Stated another way, given the medical records in this case, the commission, like the administrative law judge is left with a legitimate doubt as to whether the applicant had a compensable occupational disease prior to his last day of work. Leist v. LIRC, 183 Wis. 2d 450, 457-58 (1994).

2. Compensable permanent disability?

a. PPD generally.

The next issue is the extent of disability. The administrative law judge awarded no permanent partial disability since Dr. Schlueter rated none and opined the applicant could return to foundry work with a breathing apparatus. While Dr. Knight opined the applicant had permanent disability, she did not rate it. Further, her report indicates that she thought he had permanent disability because he was having trouble finding work, not because of an expressed functional limitation. Thus, the administrative law judge reasonably concluded on this record that the applicant had no permanent disability on a functional basis.

The applicant argues that he had functional permanent disability based on the impairment of his health, citing his breathing problems and his inability to work at the level at which he used to work. While perhaps a physician might have rated permanent disability for this, the fact remains that none has yet. Because a permanent residual limit on ability to function is generally a prerequisite to a permanent partial disability award and because the applicant has established none at this point, the applicant ordinarily would not be entitled to compensation for permanent disability. 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).

b. The "Wagner-Butler" doctrine.

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 chemicals, 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.

In this case, Dr. Schlueter's opinion indicates that the applicant could develop ratable disability from the silicosis, but that he had not yet. This is different from a condition for which a functional disability simply may not be rated, as is the case with a "permanent sensitization" claim. The Wagner-Butler doctrine simply does not apply to this case.

c. Award under section 102.565, Stats.

If a worker is instructed not to return to work because of the silicosis even though permanent partial disability may not yet be rated for the condition, the worker might seem to be left without a remedy if the Wagner-Butler doctrine does not apply. However, sec. 102.565, Stats., does provide a remedy for such cases. That section provides:

"102.565 (1) When an employe working subject to this chapter, as a result of exposure in the course of his or her employment over a period of time to toxic or hazardous substances or conditions, develops any clinically observable abnormality or condition which, on competent medical opinion, predisposes or renders the employe in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employe to continue employment involving such exposure and the employe is discharged from or ceases to continue the employment, and suffers wage loss by reason of such discharge, or such cessation, the department may allow such sum as it deems just as compensation therefor, not exceeding $13,000. In the event a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment, and the employe has a history of such exposure, compensation as provided by this section shall not be allowed nor shall any other remedy for loss of earning capacity...."

This provision seems applicable, given Dr. Schlueter's opinion that the applicant should not return to the molding floor in order to prevent further progression of his work related silicosis. However, citing a recent court of appeals decision, the administrative law judge concluded that the applicant was not entitled to a recovery under sec. 102.565, Stats.

In General Castings Corp. v. Winstead, 156 Wis. 2d 752 (Ct. App., 1990), worker Winstead was laid off after 30 years of employment when the employer, a foundry, closed its plant. Mr. Winstead had been extensively exposed to fumes from molds and sand dust during his employment. At the time of his layoff, he had not sought treatment for silicosis, nor had he any reason to believe his employment as a foundry worker would be restricted. In fact he did not learn he had silicosis until after his layoff. After the layoff, his doctor advised him not to continue in foundry work. Because he followed his doctor's advice, Mr. Winstead suffered a wage loss. General Castings, at 156 Wis. 2d 754-55.

This commission awarded benefits under sec. 102.565 (1), Stats. General Castings appealed, arguing that the statute was not applicable. The court of appeals summarized Mr. Winstead's argument that the statute was in fact applicable as follows:

"Winstead argues that the phrase `ceases to continue the employment' refers to his employment as a foundry worker generally and not to his specific employment as a foundry worker with General Castings. Thus, he reasons that his medical inability to pursue foundry work after General Castings' closure -- not the closure itself -- was the event which `ceased' his employment within the meaning of the statute. We disagree."

General Castings, at 156 Wis. 2d 758.

The court held that the term "employment" referred rather to Mr. Winstead's specific job with General Castings. Since Mr. Winstead was discharged from that employment because the plant closed, not because of his silicosis, the court of appeals concluded that sec. 102.565, Stats., did not apply. It reversed this commission's award.

The applicant contends his case is distinguishable from the facts in General Castings. He points out that the employer in this case did not close down completely, and that prior to his discharge he had received treatment for the condition that was later conclusively diagnosed as silicosis. However, whether or not the employer closed its plant completely, the fact is that economic reasons, not the applicant's health, led to his discharge. Further, while the applicant received some treatment for lung problems before his discharge, the record does not definitely establish that the treatment was for silicosis, much less that he had reason to quit because of silicosis when he was laid off. If anything, Dr. Baldwin's notes prior to the applicant's lay off indicate he could have continued to work for the employer but for the layoff. On these facts, the administrative law judge correctly concluded that sec. 102.565, Stats., does not apply in this case given the holding in General Castings.

c: ATTORNEY KATHRYN L RYAN
QUARTARO RYAN & CASTAGNA

ATTORNEY BRUCE A RANTA
CUNNINGHAM LYONS & CABANISS SC

ATTORNEY RICHARD T MUELLER
MUELLER GOSS & DARNIEDER SC


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