COURT OF APPEALS DECISION DATED AND FILED October 15, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2007AP864 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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County Concrete Corporation n/k/a Corporation, Central Processing Corp. and Insurance Company,
Plaintiffs-Appellants, v. Labor and Industry Review Commission and Susan Hoffman f/k/a Susan Gumieny,
Defendants-Respondents. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. County
Concrete Corporation, Central Processing Corporation and Zurich American
Insurance Company (County Concrete) appeal from a circuit court order affirming
a decision of the Labor and Industry Review Commission (LIRC) that Susan
Hoffman’s work activities on one day constituted an appreciable period of work
place exposure and was a material contributory causative factor in the
progression of her pre-existing neck condition.
We affirm because LIRC’s decision is supported by credible and
substantial evidence, and LIRC properly applied
¶2 It is undisputed that prior to starting employment with
¶3 Hoffman began employment with
¶4 Relying upon the opinions of Hoffman’s treating physicians, Lynn Bartl and Anthony Norelli, whom LIRC deemed credible, LIRC concluded that Hoffman’s showroom set up work constituted an appreciable period of work place exposure and was a material contributory causative factor in the progression of her pre-existing neck condition. LIRC concluded that Hoffman suffered a permanent partial disability on a functional basis of twenty percent and made various awards to Hoffman. The circuit court upheld LIRC’s decision.
¶5 On appeal,
The weight and credibility of the evidence are for LIRC to evaluate. We may not substitute our judgment for LIRC’s on issues of fact. We uphold LIRC’s findings of fact on appeal if they are supported by credible and substantial evidence in the record.
Bunker v. Labor & Indus. Rev.
Comm’n., 2002 WI App 216, ¶30, 257
¶6 The following evidence was before LIRC. In a June 8, 2004 WKC-16B practitioner’s report on accident or industrial disease, Dr. Bartl, Hoffman’s treating neurosurgeon, opined that “it is probable that the [showroom set up] event[1] caused the disability by precipitation, aggravation and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond normal progression.” In a June 11, 2004 WKC-16B report, Dr. Norelli, Hoffman’s physician, opined that “it is probable that the [showroom set up] event directly caused the disability;” he deemed not applicable the part of the report cited by Dr. Bartl regarding precipitation, aggravation and acceleration of a pre-existing condition. Dr. Bartl’s September 30, 2004 WKC-16B report reiterated the opinion expressed in the June 8 report. Dr. Bartl’s January 2005 report opined that the showroom set up work directly caused the disability but did not reiterate the precipitation and aggravation opinion expressed in her earlier reports. LIRC’s opinion accurately summarized these reports.
¶7
¶8 On review of the administrative law judge’s decision that Hoffman sustained a compensable disability due to her showroom set up activities, LIRC agreed that the opinions of Drs. Bartl and Norelli were more credible than the opinion of Dr. Aschliman regarding the causal link between Hoffman’s work and her disability. LIRC acknowledged that Hoffman’s work exposure was brief, one day, and that she previously had symptoms of a neck disorder. However, Hoffman had not been treated for that disorder for over a year before setting up the showroom and her condition became significantly worse after the showroom set up; she ultimately required surgery. LIRC noted that the showroom set up work required significant, repetitive exertion; the work was not “normal exertive activity.” LIRC concluded that Hoffman’s showroom set up work on March 5 “was an appreciable period of work place exposure that was a material contributory causative factor in the progression of her condition.”
¶9 Lewellyn
v. ILHR Dep’t., 38
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.”
¶10 Causation is a question of fact. Lewellyn, 38
¶11 Drs. Bartl and Norelli both attributed Hoffman’s disability to her showroom set up work, even if they did not agree with each other or, in Dr. Bartl’s case, with a prior opinion as to whether the work directly caused the disability or the work precipitated, aggravated and accelerated a pre-existing condition. LIRC resolved these inconsistencies as follows:
It is clear from the substance of their statements in the form reports and attached notes that they regarded the [showroom set up] work activity on March 5, 2004, rather than a single accidental event on that day, to be the cause of [Hoffman’s] disability. This is a sufficient basis for a finding of causation by occupational disease, or the related rule from Lewellyn which holds compensable injuries from work activity that precipitates, aggravates and accelerates a pre-existing degenerative condition beyond normal progression. (Emphasis in original.)
¶12 We conclude that the record contains substantial and credible evidence to support LIRC’s findings and conclusions that Hoffman’s showroom set up work “was an appreciable period of work place exposure that was a material contributory causative factor in the progression of her condition.”
¶13
The law does not require some minimum period of employment exposure or work activity as a matter of law before the exposure may become compensable. Rather, the question is whether the work exposure was a material contributory causative factor in the onset or progression of the disability under the “occupational disease” formulation, or the work activity precipitated, accelerated or aggravated beyond normal progression a pre-existing degenerative condition in the “Lewellyn 3” formulation. For the reasons explained above, the commission finds the opinions of Drs. Norelli and Bartl more persuasive than Dr. Aschliman’s opinion on this point.
LIRC had before it two opinions linking Hoffman’s showroom set up work activity to her disability. The law does not require more in this case.
¶14
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.
Lewellyn, 38
¶15 Finally,
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] LIRC found that in this report, Dr. Bartl referred back to an April 22, 2004 letter to Dr. Norelli thanking him for the referral and reciting that Hoffman’s symptoms began on showroom set up day.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3]
Our supreme court has always recognized the “natural and logical distinction” between occupational disease and industrial accident in worker’s compensation legislation. An occupational disease is “acquired as the result and an incident of working in an industry over an extended period of time.” An accidental injury is “an injury that results from a definite mishap;” “a fortuitous event, unexpected and unforeseen by the injured person.” As Professor Larson notes, however, “this contrast between accident and occupational disease is gradually losing its importance, and awards are frequently made without specifying which category the injury falls in.”