Occupational Injury or Disease Under Workers Compensation

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 conditionbeyond 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?”

Emphasis added. Id. at 400.

Respondents argued that the benefits were barred by the employee’s voluntary retirement.  They relied on the statute that defined the date of injury as the last day of work for the last employer whose employment caused the disability.  Here, the employee worked for the same company his whole life.  The court stated:

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.  SeeZurich 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).

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:

This inquiry as to the date of disability thus cuts two ways.  The date of disability is not the first time an occupational disease is diagnosed; there must be lost work time as well.  By the same token, the date of disability does not occur the first time a worker misses work due to any disability to the affected body part.  Rather, the disability must be due to occupational disease itself, separate from disability from any one of the series of early accidental injuries causing a condition which later ripens into occupational disease.  Shelby Mutual Ins. Co. v. DILHR, 109 Wis.2d 655, [327 N.W.2d 178] (Ct.App.1982); [other citations omitted].

Id. at 4.

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:

The applicant had a pre-existing degenerative non-work condition, osteoarthritis of both knees.  The work injury compensated under Ch. 102, Stats., is the precipitation, aggravation, and acceleration of that condition beyond its normal progression by work activity; the underlying degenerative condition alone is not a compensable disability.  Thus, prior treatment related to the pre-existing degenerative condition does not necessarily determine the date of injury.

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.

Id. at 5.

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: