Virginia Surety Co., Inc. v. LIRC

• Decision Date: 22 October 2002
• Docket Number: No. 02-0031.,02-0031.
• Citation: 2002 WI App 277,258 Wis.2d 665,654 N.W.2d 306
• Parties: VIRGINIA SURETY CO., INC., and Stainless Foundry & Engineering, Inc., Plaintiffs-Appellants, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, TIG Insurance Company, State of Wisconsin Work Injury Supplemental Benefit Fund, and Thomas McGaw, Defendants-Respondents, STAINLESS FOUNDRY & ENGINEERING, INC., Defendant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 665

2002 WI App 277

654 N.W.2d 306

VIRGINIA SURETY CO., INC., and Stainless Foundry & Engineering, Inc., Plaintiffs-Appellants,¹ v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, TIG Insurance Company, State of Wisconsin Work Injury Supplemental Benefit Fund, and Thomas McGaw, Defendants-Respondents, STAINLESS FOUNDRY & ENGINEERING, INC., Defendant.

No. 02-0031.

Court of Appeals of Wisconsin.

Oral argument October 1, 2002.

Decided October 22, 2002.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christine K. Nelson of Nelson, Connell & Kramer, S.C., Brookfield. There was oral argument by Christine K. Nelson.

On behalf of the defendant-respondent, Wisconsin Labor and Industry Review Commission, the cause was submitted on the brief of Jeffrey J. Shampo, Madison. There was oral argument by Jeffrey J. Shampo.

On behalf of the defendant-respondent, TIG Insurance Company, the cause was submitted on the brief of Michelle L. Danielson of Halling & Cayo, S.C., Milwaukee. There was oral argument by Roland Cafaro.

On behalf of the defendant-respondent, State of Wisconsin Work Injury Supplemental Benefit Fund, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen M. Sobota, assistant attorney general. There was oral argument by Stephen M. Sobota. On behalf of the defendant-respondent, Thomas McGaw, the cause was submitted on the brief of Michael H. Gillick of Murphy, Gillick, Wicht & Prachthauser, Milwaukee. There was oral argument by Michael H. Gillick.

Before Fine, Schudson and Curley, JJ.

¶ 1. FINE, J.

Virginia Surety Company, Inc., and its insured, Stainless Foundry & Engineering, Inc., appeal from an order of the trial court affirming a decision by the Labor and Industry Review Commission that determined that Virginia Surety was the worker's compensation carrier liable for occupational disability payments to Thomas McGaw for the silicosis-based disability he developed during his employment for Stainless Foundry & Engineering, even though Virginia Surety's policy became effective on July 1, 1997, less than two months before McGaw was forced to stop working because of his disability. The issue presented by this appeal is whether employer-required medical examinations for an occupation-caused condition that ultimately results in the employee's disability set the "date of disability" as that term is used in the governing statute, WIS. STAT. § 102.01(2)(g)2, when those examinations cause the employee some "wage loss" but the employee does not otherwise miss work until the disability ripens into a physical incapacity to work. As material here, § 102.01(2)(g) provides that, under the worker's compensation law, "`time of injury', `occurrence of injury', or `date of injury' means: . . . 2. In the case of disease, the date of disability." The Commission held that McGaw's "date of disability" was the date when he could no longer work and not when he underwent employer-required medical examinations. We affirm.

I.

¶ 2. McGaw started to work for Stainless Foundry & Engineering in 1954, when he was eighteen. With the exception of two years in the armed forces, he worked continuously for Stainless Foundry until August 25, 1997, which was his last day of work. During most of that time he was a grinder and was exposed to sand and dust resulting from grinding stainless steel castings. This exposure resulted in his silicosis, which, all parties agree, produced his work-preventing disability. According to the Commission's findings that are not disputed on this appeal, "prior to his last day of work in August 1997, [McGaw] never missed any time [from work] because of the symptoms from his condition." But McGaw was hardly symptom free. Indeed, the record before the Commission reveals that as early as 1983 his x-rays were abnormal.

¶ 3. In October of 1983, McGaw was examined at the direction of Stainless Foundry & Engineering by Richard G. Harbecke, M.D., because, as noted in his medical records, McGaw's then most recent routine employer-administered x-ray "was felt to show more abnormalities than in the past." The record indicated, however, that McGaw "has had essentially no symptoms." Dr. Harbecke concluded that McGaw "has simple early silicosis, and that there is no more serious process going on." Dr. Harbecke also noted: "At this point, I think the dust control measures that [McGaw] has described are adequate, and [I] do not feel he has to be prohibited from working." In November of 1983, Mc-Gaw underwent a bronchoscopy as part of Dr. Harbecke's evaluation "with transbronchial lung biopsies," which showed "chronic interstitial pneumonitis without granulomas or typical changes expected with silicosis although silicosis could still not be ruled out." Although at oral argument, Virginia Surety pins the bronchoscopy as McGaw's "date of injury" because he had to be in the hospital, McGaw was, again, reported to be "asymptomatic." Dr. Harbecke wrote to Stainless Foundry & Engineering in March of 1984 that McGaw had "early, nondisabling silicosis."

¶ 4. In 1990, McGaw was re-examined—again at Stainless Foundry's direction. In a letter to McGaw, Dennis Schultz, M.D., reported that there were "old" "abnormal findings" on McGaw's x-rays, "which could be explained by past silica exposure." Dr. Schultz noted that while McGaw's breathing test was "mildly abnormal," which "could also be explained by silicosis," Dr. Schultz did "not expect [McGaw to] develop any complaints in the future." Among other things, Dr. Schultz opined that McGaw was "medically qualified to use a respirator at work," and Dr. Schultz did not recommend "any restrictions for [his] usual job, but would recommend that [McGaw] continue to avoid any significant silica exposures."

¶ 5. In 1991, McGaw was examined by Marc Rasansky, M.D., a pulmonary specialist, to whom Stainless Foundry referred him. Dr. Rasansky examined McGaw on December 2, 1991, and reported that McGaw "denie[d] any respiratory symptoms of any type." Nevertheless, Dr. Rasansky opined that McGaw's "[p]ulmonary function studies reveal mild restriction and mild obstruction" and that McGaw's x-ray "is most consistent with complicated silicosis." Dr. Rasansky recommended that Stainless Foundry move McGaw "to an area where he has no dust exposure whatsoever" because, in Dr. Rasansky's view, "continued exposure is dangerous." A January 1994 x-ray revealed that McGaw had lungs whose "[a]ppearance is certainly quite compatible with silicosis." ¶ 6. McGaw saw Dr. Rasansky again in early February of 1997. McGaw told him that he had never smoked and, although "[h]e gives a history of intermittent shortness of breath, and he states that he becomes tired at work," McGaw "denies shortness of breath at work." Dr. Rasansky reviewed McGaw's chest x-rays and opined in a March 1997 letter that McGaw's "entire picture is most consistent with progressive massive fibrosis, complicated silicosis and secondary underlying pulmonary hypertension." Dr. Rasansky was, however, less than sanguine. He wrote that McGaw seemed to minimize his ailment and, according to Dr. Rasansky, McGaw's "disease is going to be progressive with further development of this disability." He further noted:

I feel that [McGaw] grossly underestimates his degree of disability and symptoms. I consider him extremely ill but, as you can see from his pulmonary function studies, these studies do not totally reflect the severe underlying defect.

Since the patient is wearing his respirator and his area if [sic is?] well ventilated, one cannot adamantly insist that he discontinue work; however, I would insist that [McGaw] retires at age 62. He will clearly develop increasing and more progressive symptoms over the next several years.

As we have seen, Dr. Rasansky's fears were prescient, and McGaw had to stop working in August of 1997.

¶ 7. Dr. Rasansky saw McGaw again on June 24, 1997, and his handwritten notes of that examination reveal that he diagnosed McGaw as having: "Advanced Silicosis," "Progressive Massive Fibrosis," which Dr. Rasansky opined was secondary to the silicosis, and "Pulmonary hypertension." Dr. Rasansky wrote: "I feel he is impaired" secondary to the silicosis and advised that McGaw should "not work hot humid days." On July 10, 1997, Dr. Rasansky wrote a letter that summarized his June 24 findings:

Thomas McGaw has pulmonary fibrosis secondary to silicosis. There is evidence of progressive massive fibrosis on chest x[-]ray.

Although Mr. McGaw's pulmonary function studies are relatively preserved, I feel that his current dyspnea is totally on the basis of silicosis. I have asked Mr. McGaw not to attend work on hot, humid days. Furthermore, if he could be moved to a job outside of the plant where there is no dust exposure, I feel that his health would improve.

¶ 8. McGaw did not follow Dr. Rasansky's advice. He testified at the administrative hearing that he never missed any work because of his silicosis symptoms between June 24, 1997, when he saw Dr. Rasansky, and August 25, 1997, when he stopped working and that he "just struggled through" hot, humid days during that time.

¶ 9. Dr. Rasansky's findings were echoed in a September 1999 report by Stuart A. Levy, M.D., submitted by Virginia Surety. Dr. Levy examined McGaw in late August of 1999 at Virginia Surety's request. He concluded:

Mr. McGaw's employment at Stainless Foundry and Engineering was a material contributory causative factor in the onset and progression of silicosis. The work exposure did not aggravate or accelerate a preexisting condition. The onset of the condition of silicosis was a direct result of his work place exposure at Stainless Foundry and Engineering.

Dr. Levy also opined:

To a reasonable degree of medical probability, the exposure to silica between 1954 and approximately 1986, when measures taken by Stainless Foundry and Engineering became effective in reducing silica dust levels

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