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OCCUPATIONAL INJURY OR DISEASE UNDER WISCONSIN WORKER’S COMPENSATION LAW
By: Gregory A. Pitts
Schoone, Leuck, Kelley, Pitts & Knurr, S.C.
6800 Washington Avenue
P.O. Box 085600
Racine, WI 53408-5600
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Workers often sustain an injury or contract a disease arising out of their employment for which the employer and worker’s compensation insurer deny worker’s compensation benefits, on the grounds that the worker cannot identify a specific traumatic event that caused or precipitated the injury or disease. Such a denial may be contrary to fact and law. It is not always necessary for the worker to be able to identify a specific event or date of injury, in order for the claim to be compensable. The purpose of this essay is to explain the concept of “occupational injury or disease,” for which worker’s compensation benefits may indeed be awarded.
A person who works in a coal mine, cement factory, foundry, or motor vehicle manufacturing plant, and as a result of the dirty, dusty, oily air, contracts a lung disease would never be able to identify a specific traumatic event that caused the condition, or a specific date of injury or disease. A person who works over a long period of time performing heavy physical labor in the construction industry, manufacturing industry, or other material handling industry, and as a result of heavy lifting contracts a pathologic condition of the neck, back, shoulder, hip or knee may not be able, with any degree of certainty, to identify a specific traumatic event that caused the condition, or a specific date of injury or disease. Even a sedentary person who works at a computer, in assembly, or any other occupation requiring repetitive hand movements, and a result contracts carpal tunnel syndrome, cannot with any degree of certainty identify a specific traumatic event that caused the condition, or a specific date of injury or disease.
All of the above examples involve potential “occupational injury or disease” that may be fully compensable under Wisconsin worker’s compensation law.
Although the majority of employers and insurers fully recognize and understand the concept of occupational injury or disease, there are still some ignorant or unscrupulous employers and worker’s compensation insurers that will routinely deny what should be classified as occupational injury or disease claims, on the sole ground that the worker is unable to identify a specific traumatic event that caused or precipitated the injury or disease. When such a situation occurs, it is incumbent on the worker to obtain the assistance of legal counsel to educate the employer and insurer, and proceed with the claim. An attorney can be instrumental in identifying the issue, gathering the medical proof necessary to prevail, and prosecuting the claim through the worker’s compensation system.
Frequently, the problem in obtaining benefits begins with the health care provider, who is sometimes unaware of the worker’s history of exposure to the factors that caused or precipitated the injury or disease, or is oblivious to the law that allows recovery of worker’s compensation benefits for occupational injury or disease. In lung disease cases, it is all too easy for the doctor to make the easy diagnosis of “asthma”, without having to obtain the detailed history necessary to arrive at a more definitive diagnoses of any of a number of well-recognized occupational lung diseases. In cases involving musculoskeletal conditions, the doctor often does not even consider the possibility of an occupational disease when there is no single traumatic event that caused the condition. An inquiry on a form submitted by the worker’s compensation insurer may be erroneously answered as “not a work injury,” simply because there is no date of injury known. A lawyer’s involvement is often necessary to educate the doctor on what is an occupational disease, so that the doctor can make the correct diagnosis, and explain its cause. If the complete patient work history and law is explained to the doctor, often it becomes quite obvious that the claim is indeed quite compensable.
The U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, commissioned a comprehensive study of the relationship between occupational exposure and musculoskeletal disease. The 1997 DHSS (NIOSH) Publication No. 97-114, entitled "Musculoskeletal Disorders and Workplace Factors, A Critical Review of Epidemiologic Evidence for Work-Related Musculoskeletal Disorders of the Neck, Upper Extremity, and Low Back," is an authoritative treatise that conclusively establishes the link. See http://www.cdc.gov/niosh/97-141pd.html This study concludes as follows: "A substantial body of credible epidemiologic research provides strong evidence of an association between [musculoskeletal diseases] MSDs and certain work-related physical factors when there are high levels of exposure and especially in combination with exposure to more than one physical factor (e.g., repetitive lifting of heavy objects in extreme or awkward postures)."
II. What is an Occupational Disease?
An occupational disease is a compensable condition under Wisconsin worker’s compensation law. Specifically, it is identified in the Worker’s Compensation Act of Wisconsin under the definition of “injury” in §102.01(c) as follows; “‘Injury’ means mental or physical harm to an employee caused by accident or disease.” In this context, the word “disease” is used to represent the types of injuries, disabilities, or conditions that are not the result of a singular accident or trauma. Occupational diseases are not as easily recognized as accidental injuries. For example, an employee may fracture an arm or tear a ligament if something falls on him at work. This type of injury is considered an accidental injury and establishes an accurate date of injury and causation. These factors are not so explicit in an occupational disease case. The two types of claims have been distinguished in many cases, all in accordance with the explanation offered in Zabkowicz v. Industrial Comm. 264 Wis. 317, 322, 58 N.W.2d 677 (1953):
[A]n accidental injury is an injury that results from a definite occurrence or mishap, while an occupational disease is acquired as a result of the employment over an appreciable period of time.
Examples of occupational illnesses include allergies, lung disease, heart disease, or any form of an orthopedic pathology involving the neck, back, shoulder, hip, or knee. The most notable example is in the case of a respiratory disease that is developed over a lengthy period of time while working in a polluted environment. There is no specific accident that causes a respiratory disease, but rather the continued exposure to air pollutants in the workplace that progressively damages the respiratory system. Rathjen v. Industrial Comm., 233 Wis. 452, 460, 29 N.W. 618 (1940) explained as follows:
An occupational disease, as that term is used in the act, is a disease like silicosis, which is acquired as the result and an incident of working in an industry over an extended period of time.
Courts have even ruled that a hernia may be considered an occupational disease in some instances. In the case of Marathon Paper Mills Co. v. Industrial Comm., 203 Wis. 17, 233 N.W. 558 (1930), the employee experienced acute pain from a hernia one day while attempting to lift a heavy paper roll. The employee had performed this type of strenuous lifting for twenty years before noticing the hernia. The court upheld the decision of the Industrial Commission that there is such a thing as an occupational hernia, so long as there was a long series of years that contributed to the development of a hernia and it was a result of the occupation.
In Kroger Grocery & Bakery Co. v. Industrial Comm., 239 Wis. 455, 1 N.W.2d 802 (1942), the question before the court was whether dermatitis could be considered an occupational disease. The employee obtained a contact dermatitis from working with a cleaning compound to which he happened to be allergic. The court ruled that the dermatitis should be considered an occupational disease, and stated, “any disease that is caused by an employee’s work becomes compensable.” Id. at 456. This court expanded the definition of a compensable disease as used in the Worker’s Compensation Act of Wisconsin to include even minor, temporary illnesses.
Until 1919, the legislature did not provide for compensation for occupational diseases. Since then, however, there have been several attempts to implement relief through the statutes by expanding the definitions of injury and the liability of employers. Today, liability will be imposed on the employer if there is credible and substantial evidence to show that, “the accident or disease causing injury arises out of the employee’s employment.” Wis. Stats. §102.03(1)(e). Although this statute is authoritative and seems unambiguous, it continues to be the subject of most occupational disease claims because of the difficulty in determining whether a condition arose out of employment. This controversy is especially apparent in claims involving a degenerative disease, such as arthritis, where the employee one day becomes disabled and believes the condition is a result of his work duties. The obvious defense is that the employee’s disability is completely natural and a result of his degenerative disease.
III. Causation is the Key
The law allows for recovery of worker’s compensation benefits if the an employee’s work was any one of the following: (1) the sole cause of the condition; (2) a substantial factor in aggravating, precipitating, and accelerating beyond normal progression a pre-existing condition, or (3) a material contributory causative factor in the onset or progression of the condition.
Establishing causation is the most important part of an occupational disease case. This is not an easy task to accomplish. In order to be entitled to compensation under worker’s compensation law, one must prove that the condition arose out of employment. This should not be misconstrued to encompass conditions of natural origin that just happen to become problematic at work. This notion was expressed in Joseph Schlitz Brewing Co. v. DILHR, 67 Wis.2d 185, 226 N.W.2d 492 (1975). The court in this case said that if an employee had a pre-existing degenerative condition, and subsequently had an employment accident that aggravates the pre-existing condition, the injury is not necessarily compensable. The basis for this ruling is that the employment accident must not only aggravate the condition, but it must also aggravate the condition beyond its normal progression.
The WKC-16-B form is a legal document that addresses this crucial issue. This form is also known as the “Practitioner’s Report on Accident or Industrial Disease in Lieu of Testimony.” This report is to be completed by a licensed medical provider, and is received in evidence in all hearings. It can be filled out on behalf of any party to a worker’s compensation case. Opinions expressed by the doctor are to a reasonable degree of medical probability.
Question 11 on the form asks whether “the event . . . directly caused the disability.” In the absence of a specific traumatic event, this question is often answered no by the doctor.
Question 12 on the form is particularly important for an occupational disease claim. It reads:
If not directly, is it probable that the event . . . caused the disability by precipitation, aggravation and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond normal progression?
Question 13 on the form follows up by asking:
If the patient suffers from a condition caused by an appreciable period of work place exposure. . . was that exposure either the sole cause of the condition, or at least a material contributory causative factor in the condition’s onset or progression?”
In occupational disease cases, this is usually the question that should be answered affirmatively in order for the worker to prevail.
Medical opinions from the worker’s doctors do not ensure compensability. Most often the respondent employer or insurer will provide a medical report from an independent medical examination (IME) that contradicts the opinions of the primary care physician. The respondents are entitled to have the claimant submit to an IME, performed by the respondents’ doctor of choice. This is required under Wis. Stats. §102.13. When a dispute exists over the cause of the illness and its relationship to the claimant’s employment, the issue becomes a matter of law.
In the case Lewellyn v. ILHR Dept., 38 Wis.2d 43, 155 N.W.2d 678 (1968), the court constructed a standard that continues to be used today when confronting the issue of causation. Here, the employee was working on an assembly line at Briggs & Stratton Corporation, where she had worked a full year prior to the incident, when she experienced severe pain in her back and was not able to stand up straight for several minutes. The company physician diagnosed her with a degenerated disc that became disabling while at work, but he concluded that such disability was not caused by her work. The Labor and Industry Review Commission (LIRC) decided that the disability was not caused or aggravated by the work activity. The question the Supreme Court had to address was whether recovery should be allowed when a preexisting condition becomes manifest or symptomatic during normal work activity and the activity bears some relationship to the manifestation. The court looked at Brown v. Industrial Comm., 9 Wis.2d 555, 101 N.W.2d 788 (1960), which involved a bricklayer who sustained a herniated disc while reaching on the job. The court in that case explained its ruling for the employee as follows:
The fact, that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer, does not relieve the employer from liability. An employer takes an employee “as is” and if he is suffering from disease predisposing to “breakage” and an exertion required by the employment causes the “breakage” at the moment of exertion, the employer is liable under the act.
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