Conradt v. Mt. Carmel School, 94-2842

Decision Date27 September 1995
Docket NumberNo. 94-2842,94-2842
Citation197 Wis.2d 60,539 N.W.2d 713
Parties, 104 Ed. Law Rep. 872 Donna F. CONRADT, Plaintiff-Appellant, v. MT. CARMEL SCHOOL, Fireman's Fund Insurance Company and Labor and Industry Review Commission, Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Walter W. Stern of Union Grove.

On behalf of the defendants-respondents, Mt. Carmel School and Fireman's Fund Insurance Company, the cause was submitted on the brief of Andrew J. Quartaro of Peterson, Johnson & Murray, S.C. of Milwaukee.

On behalf of the defendants-respondents, Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, Attorney General, and Lowell E. Nass, Assistant Attorney General.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

BROWN, Judge.

Donna F. Conradt is a former school teacher who unsuccessfully claimed before administrative tribunals and the trial court that she had a workplace sensitivity entitling her to worker's compensation. We address all of the issues she raises, but two stand out. The first is whether Wisconsin should join those states giving more weight to a treating physician's testimony than a nontreating physician's. The second is whether we should require a credibility conference between the administrative law judge (ALJ) and the Labor and Industry Review Commission (LIRC) whenever credibility is a substantial element of the case, even where LIRC affirms the ALJ. We hold that Wisconsin law rejects the "treating physician rule" and also rejects the requirement of a credibility conference when there is an affirmance. We decide the other issues against Conradt as well and affirm in total.

Conradt claimed before the ALJ that she was forced to retire from her position as a grade school teacher for Mt. Carmel School, a parochial elementary school, on February 2, 1990, because of allergy problems and multichemical sensitivities caused by the workplace. She averred that the carpeting of her classroom smelled of mold, musk and dampness as a result of ongoing leaks in the roof occurring between 1978 and November 1, 1987, when repairs were completed. She asserted that during this period, exposure to mold from the carpeting caused an allergic reaction to her lungs, throat, ears and sinuses and that it caused headaches.

Conradt further asserted that even after the roof was repaired, she continued to experience problems, even though she moved to a different classroom in August 1989. She complained that the chemical air fresheners placed throughout the building, carpet freshener placed in all of the carpeting and fragrance cakes placed in the bathroom only exacerbated her problems. She also claimed that the roof continued to leak despite the repairs.

She testified that in 1988 and 1989, she went to her general practice physician because of these symptoms and that this physician treated her with antibiotics. She testified further that she then decided to go to an allergist, Dr. G. Botka-Wunder, who treated her in 1989 and 1990. Then, because Conradt believed that she was receiving too much medication and yet was not getting relief, she thereafter began seeing Dr. Robert T. Marshall, a clinical ecologist who, after testing, prescribed antigens that she was to insert under her tongue. During her treatment with Marshall, she still did not feel that she was getting better and therefore sought a "second opinion" from Dr. Theron Randolph, another clinical ecologist. She went to Randolph on one occasion.

Conradt submitted a WC-16-B form completed by Marshall. By means of that form, Marshall opined that Conradt had a multichemical sensitivity disability. He defined this as a disorder where there are below toxic levels of different chemicals that, when added together, create a negative physical reaction which eventually may break down the immune system.

Conradt also submitted a WC-16-B form of Randolph. Randolph concurred with Marshall that Conradt's symptoms were due to the work exposure at Mt. Carmel School because of multichemical sensitivity. He opined that Conradt was 100% disabled.

In addition to the opinions of Marshall and Randolph, Conradt also submitted a WC-16-B form of Botka-Wunder, whom she described as a "classic" allergist as opposed to Marshall and Randolph who were practitioners of "clinical ecology." Botka-Wunder corroborated the work-related nature of Conradt's exposure to various substances at work which, she opined, aggravated Conradt's preexisting sinus infections. She further opined that mold and fragrance in the air at work created multiple chronic upper respiratory problems and significant reactions with mold antigens and respiratory bacteria antigens.

Mt. Carmel offered the opinion of Dr. Jordan Fink, a professor of medicine and chief of the allergy-immunology division of the Medical College of Wisconsin. Fink discounted clinical ecology as a legitimate medical field. He further testified that he examined Conradt and tested her for antibodies. The tests were unremarkable. Additional tests were also found to be within normal limits. He also reviewed her medical history. He concluded that Conradt's condition was not allergy related and there was no work-related injury or disability.

Fink also commented on the symptoms that Conradt reported while working at Mt. Carmel. He said that, at some point in time, Conradt may possibly have had a condition called "mucosal irritation syndrome," otherwise known as "sick building syndrome." He indicated that it is entirely possible that her symptoms were related to the roof leaks "at the time she worked in the building." He testified, however, that this is not the same as an allergic reaction. He further stated that the condition is not disabling or permanent and that if the building is fixed, the condition goes away.

Mt. Carmel also presented documentary evidence to support its position that after the roof of the building was repaired, no further problems resulted. It submitted a report by the Kenosha County Department of Public Health dated January 19, 1990. The report indicated that the department inspected the school and took air samples on January 18 and 19, 1990, two years after completion of the roof repairs. The inspection revealed no problems with the air quality. Mt. Carmel also submitted a report from the Occupational Safety and Health Administration (OSHA) regarding an inspection of the school on February 13, 1990. While other violations of OSHA were found, the report did not indicate any potential exposure to harmful substances.

The ALJ found for Mt. Carmel. The ALJ stated in pertinent part as follows:

Based upon the record made at the hearing, I find the applicant's testimony of exposure to molds, chemicals and other conditions in an alleged "sick building syndrome" to be so far removed in time as to lack sufficient credibility to meet her credible and substantial evidence burden under the Worker's Compensation Act. I further find that the opinions of Dr. Fink regarding the applicant's condition to be more credible and adopt the same.

Conradt then appealed to LIRC, which adopted the findings of the ALJ. In doing so, however, LIRC phrased Conradt's theory as one of multiple chemical sensitivity rather than "sick building syndrome." Also, LIRC explained that it understood the ALJ's use of the phrase "so far removed in time" to mean that Conradt's "exposure to molds through a leaking roof ended a considerable time prior to the hearing and to her treatment with Drs. Marshall and Randolph." Additionally, LIRC did not specifically find that Conradt may have at one time had a workplace-related disability, ending when the building was repaired. Rather, LIRC simply wrote that it was not convinced that her work environment caused her to sustain any injury. Conradt appealed to the circuit court, which upheld LIRC. She now brings this appeal.

Conradt first argues that this state should adopt a rule that treating physicians be accorded special credibility. This rule, which she asserts is applied in a majority of states, is based upon the rationale that a treating physician has had nonlitigation-type contact with the patient. Therefore, the treating physician's diagnosis is usually not litigation related. On the other hand, an independent medical examiner hired by an employer or the employer's insurance company gives an opinion that is solely litigation related. Therefore, the reasoning goes, the administrative agency should not be allowed to disregard a treating physician's opinion in favor of the one time examiner without good and substantial grounds. One commentator has described the rule as follows:

The attending physician's testimony should be given more weight than that of a doctor who has not examined the claimant for purposes of treatment, and testimony of a specialist in the particular field should be given more weight than that of a general practitioner.

3 ARTHUR LARSON, THE LAW OF WORKMEN'S COMPENSATION § 80.24(b) (1992) (footnotes omitted).

Conradt acknowledges cases, including Manitowoc County v. DILHR, 88 Wis.2d 430, 437, 276 N.W.2d 755, 758 (1979), which state that LIRC is the "sole judge of the weight and credibility" of medical witnesses. But she argues that the Manitowoc case is not irreconcilable with the "treating physician rule." She argues that LIRC's authority to decide the credibility of witnesses would not be abrogated. Rather, "the Commission would simply need to suggest a reason, some evidence as to why the rule would not be applied in the individual case." She contends there is no case or statute prohibiting the adoption of the "treating physician rule" and posits instead that invocation of the "treating physician rule" would further Wisconsin's tradition of liberal application of the law in favor of...

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