BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


LLOYD D. EISNER, Applicant

WIS-PAK, INC., Employer

UNITED STATES FIRE INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 87-044815


United States Fire Insurance Company ("USF"), one of the insurers herein, submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on November 2, 1989. Applicant, and Home Indemnity Company ("Home"), the other insurer herein, submitted answers to the petition. At issue is whether or not at the time of the alleged injury the applicant was performing services growing out of and incidental to his employment, whether the injury arose out of this employment, nature and extent of disability, liability for medical expense, and relative liability (if any) of the two insurers.

The Commission has carefully reviewed the entire record in this matter and hereby makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on June 3, 1925. He began work with Wis-Pak, Incorporated on June 5, 1978. His job title was that of a packer operator. He operated a packing machine which packed soda pop cans. The operation of the machine itself required little effort on the applicant's part. However, his position also required him to put rolls of plastic film in the machine. Each roll weighed between 80 and 90 pounds. Applicant lifted five to ten rolls a day. He was also required to lift stacks of trays that weighed 30 to 40 pounds. The stacks of trays were stacked on pallets. There were 75 to 100 trays in a stack, and 2,250 trays to a pallet, so there were 20 to 30 stacks to a pallet. Applicant emptied six to eight pallets a day. On occasion the applicant was also required to bend down to go under the conveyor, where the clearance above the floor was only three feet.

On March 9, 1983, applicant sought medical care for back pain which radiated into his left leg. It had come on gradually over a period of approximately two weeks. Bed rest was prescribed, and applicant stopped working at that time. His condition was not improved by bed rest, and on March 22, 1983 he was admitted to Watertown Hospital where he stayed until March 27, 1983. He was again admitted to Watertown Hospital on April 21, 1983 and was discharged from the hospital on April 29, 1983. He did not return to work until May 21, 1983. After a recheck on June 30, 1983, he did not seek medical care relating to his back again until the following year.

In 1987 applicant experienced further back problems, and he lost time from work beginning on July 28, 1987. On that day he went to Watertown Hospital. On August 28, 1987 he underwent a decompressive foraminotomy and hemilaminectomy at the L4-5 level. He returned to work on November 2, 1987, and worked four hours a day until November 6, 1987. From November 16, 1987 to November 20, 1987 he worked six hours a day. On November 23, 1987 he resumed his full-time duties.

Applicant still endures pain at the end of the day which lasts from four to five hours. At work he occasionally has to sit down to relieve his back pain.

Dr. Harvey M. Wichman reported that in his opinion the applicant at the present time has permanent partial disability of ten percent as compared to permanent total disability, based on a diagnosis of long-standing hypertrophic osteoarthritis and subsequent lateral recess stenosis. Dr. Javid has also diagnosed applicant's problem as including bilateral recess stenosis of L4-5. Dr. Stiehl concludes that applicant suffers from long-standing degenerative arthritis and lateral recess stenosis. Dr. Berglund concludes that applicant suffers from underlying hypertrophic atrophy with associated stenosis. Dr. Stiehl was of the opinion that with respect to the applicant's permanent partial disability, half was due to work exposure up to the loss of work in 1983, and the other half was due to the work exposure from 1983 until 1987. It is concluded based on these opinions that applicant suffers from an occupational disease of his back which was caused by his work for respondent. It is therefore found that the applicant has sustained an injury while performing services growing out of and incidental to his employment and that said injury arose out of his employment, within the meaning of section 102.03 (1), Stats. He had a date of injury on March 9, 1983 when he ceased working due to his back problem. He also had a date of injury on July 28, 1987 when he ceased working again because of his back problem. USF was the worker's compensation carrier for the employer on March 9, 1983 and Home was the worker's compensation carrier for the employer on July 28, 1987.

As a result of the aforementioned occupational disease, the applicant was disabled from working during and is entitled to temporary total disability benefits for the period from July 28 to November 22, 1987, a period of 13 weeks and four days. He is also entitled, for the same reason, to temporary partial disability benefits for the period from November 2 to November 6, 1987, during which time he worked four hours a day, and the period from November 16 to November 20, 1987, during which period he worked six hours a day.

An issue is presented whether USF is responsible for any part of the benefits and medical expense payments determined herein. Generally, in the case of occupational disease, the insurance carrier on the risk at the time of a date of injury (such as is established by time lost from work) will be held responsible for all compensation due, without contribution from other insurance carriers on the risk during earlier periods of workplace exposure that contributed to the occupational disease. However, there can be multiple dates of injury in occupational disease cases. Thus, there may be time lost from work due to the effects of an occupational disease, the employe may then return to the same employment and work for a further period of time, during that subsequent period of time the work exposure may make a significant new contribution to the disease process, and another loss of time from work and corresponding date of injury may then occur. In effect, a second, discrete period of exposure has constituted a further and additional disease process. This was recognized in Zurich General Accident & Liability Ins. Co. v. Ind. Comm., 203 Wis. 135, 147 (1930), in which the court stated, with reference to occupational disease,

"...if the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, then it will be necessary for the Commission to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by subsequent exposure."

The court's recognition, that subsequent disability after a second period of exposure may arise from the earlier period of exposure or from the second period of exposure, is implicit recognition that the subsequent disability may arise from both. As the court held in Zurich General, it is necessary for the Commission to make a determination as to this. In some cases, this may result in division of liability. However, this is not apportionment of liability for occupational disease between successive insurers during a single period of work exposure not interupted by temporary disability and treatment. Rather, it is a recognition of relative responsibility between insurers on the risk for and liable for the effects of separate periods of exposure punctuated by intervening periods of disability.

Thus, in this case, Home is liable for the effects of all the exposure subsequent to the 1983 date of injury. USF is liable for the effects of all the exposure up to the 1983 date of injury. Based on the opinion of Dr. Stiehl, it is concluded that half of the accrued disability (temporary and permanent) and medical expenses were caused by the exposure prior to the 1983 date of injury, and that half was caused by the exposure after that point. The two insurers must therefore share liability on this basis.

With respect to temporary disability, the liability of USF is in effect for a renewed period of disability within the meaning of section 102.43 (7), Stats. Its liability, to properly take into account its 50 percent responsibility, is for 50 percent of the number of days and weeks of temporary disability occuring in 1987 with rates computed on the basis of section 102.43 (7). The admitted rate of pay of applicant in March 1983 was $377.23 per week, which would yield a temporary disability rate of $251.49 per week, which in turn was 85.54 percent of the maximum benefit rate at that time. The applicable rate for renewed period of disability in 1987 would therefore be 85.54 percent of the maximum benefit rate at that time ($338 per week) or $289.12 per week.

The liability of Home for temporary disability is for 50 percent of the number of days and weeks of temporary disability occuring in 1987 with rates computed on the basis of section 102.43 (1), Stats., subject to maximum limitations. Applicant's wage in 1987 was, according to the parties' stipulation, at the maximum. Therefore the applicable rate would be $338 per week.

USF's liability for the 13 weeks and four days of temporary total disability, one week of temporary partial disability when applicant worked four hours a day, and one week of temporary partial disability when applicant worked six hours a day, all subject to the rate of $289.12 per week, and reduced by 50 percent to reflect its liability, would be $2,125.78. During this period, however, the applicant's employer paid him $3,754 in temporary total disability payments; 50 percent of this, or $1,877, will be deducted from the amount of USF's liability, leaving a remaining liability for temporary disability of $248.78

Home's liability for 13 weeks and four days of temporary total disability, one week of temporary partial disability when applicant worked four hours a day, and one week of temporary partial disability when applicant worked six hours a day, all subject to the rate of $338 per week, and reduced by 50 percent to reflect its liability, would be $2,485.19. The sum of $1,877 (the other half of the $3,754 paid by the employer as TTD during this period) will be deducted from the amount of Home's liability, leaving a remaining liability of $608.19 for temporary disability."

USF's liability for the ten percent permanent partial disability found herein, subject to the 1983 injury rate of $90 per week, and reduced by 50 percent to reflect its liability, would be $4,500. Home's liability for the ten percent permanent partial disability found herein, subject to the 1987 injury rate of $117 a week, and reduced by 50 percent to reflect its liability, would be $5,850.

Thus, USF is responsible for $4,748.78 in disability payments (TTD, TPD, PPD), out of which an attorney's fee of 20 percent, or $949.76, will be protected, leaving a balance to be paid to applicant of $3,799.02. Home is responsible for $6,458.19 in disability payments (TTD, TPD, PPD), out of which an attorney's fee of 20 percent, or $1,291.64, will be protected, leaving a balance to be paid to applicant of $5,166.55.

USF and Home shall each reimburse the employer the amount of $1,877 for the TTD paid by the employer to the applicant.

The applicant incurred medical charges and prescription charges which were reasonable and necessary to cure and relieve him from the effects of his occupational disease. Of the total the applicant paid $217.94. Each insurance carrier will be ordered to pay applicant half of that amount, or $108.97. There is an unpaid balance due to the University of Wisconsin Hospital in the amount of $5,590.30. Each insurance carrier will be ordered to pay half that amount, or $2,795.15. There is an unpaid balance of $1,481.80 due the Watertown Memorial Hospital. Each insurance carrier will be ordered to pay half of that amount, or $740.90. There is a balance due to Affiliated Physicians of $3,740.50. Each insurance carrier will be ordered to pay half that amount, or $1,870.25.

NOW, THEREFORE, this

ORDER

That within 30 days from the date of this order, the United States Fire Insurance Company shall pay to the applicant the sum of Three thousand seven hundred ninety-nine dollars two cents ($3,799.02) and to the applicant's attorney, the sum of Nine hundred forty-nine dollars seventy-six cents ($949.76). The Home Indemnity Company shall pay to the applicant the sum of Five thousand one hundred sixty-six dollars and fifty-five cents ($5,166.55) and to the applicant's attorney, the sum of One thousand two hundred ninety-one dollars and sixty-four cents ($1,291.64). Each insurance carrier shall pay the sum of One hundred eight dollars and ninety-seven cents ($108.97) to the applicant as reimbursement for medical expenses paid by him. Each insurance carrier shall pay to the University of Wisconsin Hospital the sum of Two thousand seven hundred ninety-five dollars and fifteen cents ($2,795.15), to the Watertown Memorial Hospital the sum of Seven hundred forty dollars and ninety cents ($740.90), and to Affiliated Physicians the sum of One thousand eight hundred seventy dollars and twenty- five cents ($1,870.25).

Dated and mailed February 14, 1991; Amended March 14, 1991.
ND 3.4

Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

In its petition for review, USF argues that this case should be governed by the principle that the insurer on the risk at the time of an occupational back disease is responsible for all compensation due.  In this respect it cites the decision of the Commission in Uecker v. Hayes Manufacturing, Inc., (Claim Nos. 80-07000, 85- 23614, April 20, 1989) and asserts that the facts in that case were substantially similar to those in the instant case.  The Commission does not agree.   In Uecker, the employe suffered a definite industrial accident on December 18, 1979, which injured his back.  A definite traumatic incident, occurring at a definite time and place, was pinpointed.  That was not an occupational disease process.  Over five years later, when a different insurance carrier was on the risk, the employe first suffered a date of injury attributable to an occupational disease process when he lost time from work.  Thus, the Commission was not confronting a situation in which there were multiple identifiable occupational disease processes punctuated by dates of injury.  Additionally, it does not appear from the Commission's decision in the Uecker case that any medical expert offered any testimony or evidence that would have supported a conclusion that the disability from work occurring at the time of the subsequent insurer was the result, to the extent of any identified percentage, of the earlier industrial accident.  Thus, the instant case is not the same as Uecker.

As indicated above, the Commission has concluded that USF must share liability in this matter, not as a matter of apportioning between successive insurers on the risk during a single disease process, but as a reflection of USF's status as an insurer on the risk at the time of a date of injury from a disease process that was already ongoing.

cc:
Attorney Nancy R. Gruber, White and Gruber
Attorney Michael C. Frohman, Kasdorf, Lewis and Swietlik
Attorney John D. Neal, Stafford and Neal


Subsequent history:  This decision was overruled by the commission to the extent that it purported to authorize apportionment in occupational disease cases. See Kalies v. Brillion Iron Works (LIRC, May 22, 2001), McGaw v. Stainless Foundry & Engineering et al (LIRC, May 22, 2001) .

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Note regarding amendment:

The decision as it is reproduced here reflects corrective amendments made by the commission on March 14, 1991, which amendments affected the last sentence in the twelfth paragraph of the Findings Of Fact and the last sentence in the thirteenth paragraph of the Findings Of Fact, and which added what became the sixteenth paragraph of the Findings Of Fact. The commission also added the following NOTE to its Order amending the decision:

The Commission has amended its decision to correctly reflect the fact that the $ 3,754 paid by the employer to the applicant was intended to be in satisfaction of the employer's obligation for payment of TTD. As such, it was properly a liability of the insurers and should be reimbursed by them. The Commission views the absence of a response by the insurers' counsel to the letter of Attorney Neal dated February 18, 1991 as indicating that they did not object to the request he made in that letter that the Commission amend its decision, as it has done herein, to direct the insurers to make reimbursement to the employer.

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