I.
Introduction
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 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 ruled that a “worn out back” is
equivalent to a disease compensable under
the statute,
Wisconsin Ins. Sec. Fund v. LIRC,
2005 WL 2665336 (Ct. App. 2005), and that a
hernia also 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.
See DWD for form WKC-16-B, and other
forms. 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.
Id. at 570.
Brown
loosened the criteria for applicants by
stating that there is no burden upon the
employee to show that there was an unusual
exertion at the time of the breakage, but
only that such breakage occurred during the
course of employment.
The facts in Lewellyn, however, were
not supportive of a “breakage,” which is
defined as “a herniation, or letting go,
with an obvious and mechanical or structural
change in the body.” Larson, Law of
Workmen’s Compensation (1952), p. 519, sec.
38.20. There were two disputing
doctors’ opinions regarding whether an
actual herniation has occurred. In
fact, testimony was given by one doctor who
explained that the work could not have
caused the disability. Thus, the court
established the following standards to help
facilitate the decision making in
occupational disease cases.
(1)
If there is a definite “breakage” (a letting
go, a structural change, etc. . . .) while
the employee is engaged in usual or normal
activity on the job, and there is a
relationship between the breakage and the
effort exerted or motion involved, the
injury is compensable regardless of whether
or not the employee’s condition was
preexisting and regardless of whether or not
there is evidence of prior trouble. . . .
(2)
If the employee is engaged in normal
exertive activity but there is no definite
“breakage” or demonstrable physical change
occurring at that time but only a
manifestation of a definitely preexisting
condition of a progressively deteriorating
nature, recovery should be denied even if
the manifestation or symptomization of the
condition became apparent during normal
employment activity. . . .
(3)
If the work activity precipitates,
aggravates and accelerates beyond normal
progression, a progressively deteriorating
or degenerative condition, it is an accident
causing injury or disease and the employee
should recover even if there is no definite
“breakage.” . . .
Id. at 58-59.
The court in Lewellyn
decided that the employee fell into the
second category, and as a result should be
denied benefits under the act. The court
ruled that there was substantial and
credible evidence to support LIRC’s
decision, and therefore it should stand as
such.
Subsequently, in
Shelby Mutual Ins. Co. v. DILHR, 109
Wis.2d 655, 327 N.W.2d 178 (Ct. App 1982),
the court found compensable an occupational
back injury as falling within the third
category established in Lewellyn.
In Shelby Mutual, the employee
sustained several work related back injuries
throughout his twelve years at West
Milwaukee, which required heavy lifting.
Records indicated he never had any problems
with his back before working at West
Milwaukee. He had multiple traumatic events
at work that caused him repeated and
continuous back problems. While he was
at home on vacation one day he sustained a
severe back injury. The court ruled
that repeated back injuries may be
compensable as an occupational injury. This
case has been often cited as the landmark in
Wisconsin for occupational back cases.
The Court of Appeals
reexamined Lewellyn and Shelby
Mutual in
Wisconsin Ins. Sec. Fund v. LIRC,
2005 WL 2665336 (Ct. App. 2005).
There, the employee sliced and stacked
blocks of cheese in a factory for many
years. Ultimately, he developed a
herniated disc requiring two surgeries to
correct. Although the claimant failed
to identify any specific traumatic events
while working, he was awarded worker’s
compensation benefits as having suffered an
occupational back injury. His treating
physician had opined that his back had “worn
out” as a result of the strenuous and
repetitive work, which was a material
contributory causative factor of his low
back pathology. The court clarified
that the three standards established in
Lewellyn are applicable only where a
preexisting condition is present.
Shelby Mutual involved a series of prior
traumatic incidents. In
Wisconsin Ins. Sec. Fund, the claimant
had no preexisting condition, nor any prior
traumatic incidents. Nevertheless, the
court found his claim compensable as an
occupational injury, and concluded as
follows:
In sum, we conclude that a compensable
occupational disease injury may occur when
an injury is caused by job activity over a
period of time, regardless whether there are
identifiable traumatic injury-causing
events.
2005 WL 2665336 at ¶ 16.
Thus, the law is now clear that a back
injury may be compensable as an occupational
injury, despite the existence or absence of
a preexisting condition or prior traumatic
events.
IV. The
Standard of Review
The standard of review of law is another
topic worthy of consideration in
occupational disease cases. A worker’s
compensation hearing is held before an
Administrative Law Judge (ALJ). Any
decision by an ALJ can be appealed.
The appeal process starts with a petition
for review of the facts and the ALJ’s
decision by the Labor and Industry Review
Commission (LIRC). From there, an
appeal is brought before the Circuit Court,
followed by the Court of Appeals and then
the Supreme Court. Claimants must be
aware of the standard of review of law that
is exercised throughout the appeal process.
Pursuant to Wis. Stats.
§102.23(6), LIRC’s decision must be
“supported by credible and substantial
evidence.” Moreover, any decision LIRC
renders will be afforded a level of
deference by the Circuit Court, Court of
Appeals or the Supreme Court. The level of
deference depends on LIRC’s familiarity,
expertise, and experience with the issue at
hand. The court will afford either
great weight deference, due weight
deference, or issue a de novo
review of the facts.
V. What
is a “Date of Injury?”
Worker’s compensation benefits are based on
a specific date of injury. The date of
injury for purposes of occupational diseases
is usually a legal fiction. As explained
throughout this essay, there is in fact no
specific event or date that would in common
parlance be considered the onset of an
occupational injury. Nevertheless, the
law requires that a date of injury be
established by artificial means, so that the
insurer on the risk on that particular day
can be identified and held responsible for
payment of the claim.
Any temporary or permanent disability
payments begin to accrue on the fictional
date of injury. Establishing the
appropriate date of injury is critical to
the worker’s compensation proceedings, but
it is not always easily determined.
The Worker’s Compensation Act defines the
date of injury under Wis. Stats.
§102.01(2)(g), as follows:
Except as
provided in s. 102.555 with respect to
occupational deafness, “time of injury”,
“occurrence of injury”, or “date of injury”
means:
1.
In the case of accidental injury, the date
of the accident which 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 whose employment caused
disability.
The
court helped to clarify this statute in
Kohler Co. v. DILHR, 42 Wis.2d 396, 167
N.W.2d 431 (1969). In this case, the
employee was diagnosed with silicosis and
emphysema arising out of his employment in a
hot, dry, and dusty work atmosphere.
He had worked there for more than 50 years.
The court described his disease as
occupational.
An
occupational disease is a process, usually
extending over a considerable span of time.
It has a beginning, relevant on the issue of
causation. It has a progression but
his can vary in individual cases.
There can be a steady deterioration, swift
or slow but uninterrupted. There can
be improvement and relapse. There can
be recovery and reoccurrence. . . . On a
claim for benefits for permanent disability,
most important is the question, “When did
the occupational disease ripen into a
disabling affliction?”
It is when the
disability occurred that determines employer
liability not the circumstances of leaving
the employment. It is what his
condition was, not why or how he left the
job that is important.
Id. at 404.
Even a back injury sustained while off work
can constitute an occupational disease if
there is credible evidence of repeated back
injuries while in the course of employment,
as in Shelby Mutual.
The date of injury in an occupational
disease case is established when the disease
has progressed to the point when it has
disabled the employee or prevented him or
her from continuing the customary duties of
the job. In
North River Ins. Co. v. Manpower Temp. Serv.,
212 Wis.2d 63, 568 N.W.2d 15 (Ct. App.
1997), the employee worked for the Manpower
Temporary Service for about six weeks, and
was assigned to Freedom Plastics, Inc.
Despite doing repetitive manual tasks that
stressed the nerves in his hand, he did not
miss work or have any doctor visits.
After six weeks, he was hired by Freedom
Plastics as its employee. On the first
day of work while employed by Freedom, he
performed the same repetitive hand movements
that had caused him pain before while
working as Manpower employee. He
reported that his hand hurt. On the
second day of work for Freedom, he was
transferred to an easier job. On the
day of work for Freedom, the employee had a
doctor visit for carpel tunnel syndrome, and
later filed a worker’s compensation claim.
The court ruled that the injury occurred
while working for Freedom, thus holding
Freedom liable for compensation.
Freedom argued that Manpower was responsible
because of the fact that the employee had
only worked one day doing repetitive hand
work for Freedom. The court ruled that
the evidence supported LIRC’s determination
that Buczko did not suffer a disability
while employed by Manpower because his
carpal tunnel syndrome had not yet
progressed to the point where it ripened
into a disabling affliction.
The point when a condition ripens into a
disabling affliction is to be considered the
date of injury or disability for purposes of
worker’s compensation.
VI.
Establishing a Date of Disability
The date of disability does not necessarily
have to be the last day worked for a
particular employer. In fact, there
may be multiple dates of disability in some
cases. As the Supreme Court decided in
Zurich Gen. Acc. & Liab. Ins. Co. v.
Industrial Comm., 203 Wis. 135, 233 N.W.
772 (1930), an employee who sustains an
occupational disease has not been limited to
one date of injury for the same employer.
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 a subsequent exposure.
Id. at 147.
When there
is a period of temporary disability and a
recovery, the original date of injury is fixed
only with respect to the period of temporary
total disability. If the employee has a
subsequent date of injury with a new period of
disability for the same or different employer,
the benefits of the Worker’s Compensation Act
may be invoked again. However, no
apportionment of liability is allowed between
insurers on the risk for more than one date of
disability. If it is found that there are
two separate dates of disability, each with
subsequent recovery and causal relationship to
employment, it remains LIRC’s decision to
determine which insurer is liable. The
insurers will not be able to apportion their
respective liability, as decreed by Employers
Mut. L. Ins. Co. v. McCormick, 195 Wis. 410,
217 N.W. 738 (1928). In this case, the court
noted that liability is imposed on the insurer
on the risk on the date of disability,
notwithstanding any other previous employers or
insurers between the first injury and the date
of disability. Wis. Stats.
§102.175(1), which allows apportionment of
liability in accidental injury cases,
conspicuously neglects to include occupational
disease cases.
Since
occupational disease cases evolve over the
course of time, the employee may have multiple
doctor visits and time off work at different
stages of the development of the disease.
This scenario can create a dispute between
parties as to the date of disability. In
Robert Larson v.
Steelwind Industries, W.C. Claim
No. 1997053715 (LIRC September 24, 1999),
LIRC affirmed an administrative law judge’s
decision that an employer for whom an employee
had begun working one year before his carpal
tunnel syndrome was treated surgically, was
responsible for all worker’s compensation
benefits, even though the employee had been
treated for the condition seven years earlier
while working for a different employer.
The LIRC decision states, in pertinent part, as
follows:
Moreover, the
commission has consistently held that there may
be multiple dates of injury in cases of
continuing work exposure, so that if additional
exposure causes additional disability, a new
date of injury is tied to the later exposure.
See Zurich General Accident & Liability v.
Industrial Commission, 203 Wis. 135, [233
N.W.2d 772] (1930); Eisner v. Wis.-Pak,
WC Claim no. 87-044815 (LIRC, February 14,
1991); and Neal & Danas, Workers Compensation
Handbook, section 3.4 (4th ed.,
1997).
In occupational
disease cases, the last employer whose
employment contributed to the disease as of the
date of injury is liable for the injury, on the
theory that the risk will even out over time.
Employers Mut. Liab. Ins. Co. v. McCormick,
195 Wis.2d 410, 415, [217 N.W. 738] (1928).
As [the employer] points out in its brief, as
little as one day’s work can be sufficient
contribution to an occupational disease
condition to result in liability for an
employer. North River Ins. Co. v. Manpower,
212 Wis.2d 63, [568 N.W.2d 15] (Ct.App. 1997).
Id. at 4.
In
Joan Calkins v.
Penda Corp., WC Claim No.
1991050282 (LIRC August 31, 1999), LIRC
made a finding that the last of a series of back
injuries was the date of injury for purposes of
an occupational back claim, and said as follows:
The date of injury
for [the employee’s] disability from
occupational disease resulting in her loss of
earning capacity claim is September 1, 1992.
[She] was able to work without restriction until
that date. Further, her condition was not
static or unchanging with the prior incident in
August 1991. Indeed, she was able to
return to work at full duty after that incident,
though she had some residual symptomatology.
Thereafter, her condition continued to worsen
with continued work exposure until she was
unable to continue work after the incident on
September 1, 1992.
Id. at 5.
In
Kenneth Rothenberger v. Murray Manufacturing,
WC Claim No. 19950511612 (LIRC January 29,
1999), LIRC held, in an occupational lung case,
that the date of injury was the last day of work
for the last employer whose employment
contributed to the disability. This last
date was when work restrictions affecting
continued employment were imposed, and the
employee could not continue. The fact that
he had undergone treatment for the lung
condition nine years earlier for two different
employers, and had stopped working for a third
different employer whose employment had
contributed to the condition five years earlier,
did not convince LIRC that the date of injury
for purposes of the occupational disease was at
any time sooner than the date when the employee
became disabled from work.
In
Dale Noremberg v. Myron Construction Co., Inc.,
W.C. Claim No. 94033753 (LIRC May 25, 1995),
LIRC affirmed the findings and order of an
Administrative Law Judge holding that the date
of a knee injury was the last day of work for
the employer, rather than a date five or six
years earlier when the employee had worked for a
different employer and first sought treatment
for the knee. LIRC’s decision stated:
Id. at p. 2.
In
Terry L. Melvin v. Bestline, Inc.,
W.C. Claim. No. 93044101 and 94037949
(LIRC February 8, 1995), LIRC affirmed an
Administrative Law Judge’s findings of fact and
interlocutory order that the applicant’s date of
a back injury was the last date of his
employment for the employer, rather than a date
two years earlier, when he had missed work for a
back problem. Following the original date
off work, the applicant had returned to work and
had continued performing his normal duties, and
had experienced only occasional flare-ups and
intermittent pain until the symptoms prevented a
return to work. LIRC’s decision stated:
Read in context,
then, General Casualty [Co. of Wisconsin v.
LIRC, 165 Wis. 2d 174, 477 N.W.2d 322 (Ct.
App. 1991)] does not mean that the first
occasion that a worker sees a doctor about a
condition that later develops into, or later is
determined to be, an occupational disease must
necessarily be the date of injury. Thus,
simply seeing a doctor prior to the last day of
work does not automatically rule out the last
day as the date of injury. In Shelby
[Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655,
327 N.W. 178 (Ct. App. 1982)], for example, the
applicant saw a doctor about his back on several
occasions before his last day of work, but the
court affirmed the finding that the last day of
work was the date of injury.
VII. More
Information
Occupational disease cases now constitute a
substantial percentage of worker’s compensation
claims in Wisconsin. Extensive exposure to
air pollutants in automobile factories, years of
hard physical labor in factories, and other
mental or physical problems that result from
workplace exposure are entirely compensable
under the Worker’s Compensation Act.
Pursuant to Wis. Stats.
§102.17(4), there is no statute of limitations
for occupational disease cases. This means
that no one can be barred for not filing within
a certain number of years after the date of
disability. Occupational diseases develop
over time and are not as easily recognized as
accidental injuries. These types of
injuries are not as sudden or traumatic as an
accidental injury, but are just as genuine and
worthy of compensation.
For more information on
occupational diseases and worker’s
compensation law click the following links:
All 50 States’ Worker’s Compensations
Agencies:
Workplace Injury and Illness Summary:
Occupational and Environmental Medicine
Resources:
Wisconsin
Labor and Industry Review Commission Decisions
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