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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 Search Page:
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