Walter Dedlow (Dec'd) Applicant
Kohler Co. Employer
Kohler Co., c/o Gallagher Bassett Services, Inc. Insurer
Claim No. 2016-010756
Wisconsin Workers Compensation
State of Wisconsin Labor And Industry Review Commission
July 26, 2019
Atty.
Mark D. Gustafson
Atty.
Peter Rank
Atty.
James W. Goonan
WORKER’S COMPENSATION DECISION AND REMAND
ORDER 1
Michael H. Gillick, Chairperson
Order
The
commission affirms in part and
reverses in part the decision of the
administrative law judge. Accordingly, the applicant is
entitled to an award of death benefits and burial expenses;
the commission remands this matter for a
decision as to the amount of benefits payable and any
appropriate allocation.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell,
Commissioner.
Procedural
Posture
In
April of 2016, the applicant’s son (the applicant)
filed a hearing application seeking compensation for an
injury and death, with a last date of injury of January 1,
2001. An administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker’s Compensation Hearings heard the matter on
August 13, 2018, and issued a decision dated September 7,
2018, finding a work injury of silicosis, but finding that it
was not a cause of the applicant’s death, and denying
death benefits. The applicant filed a timely petition for
review.
Prior
to the hearing, the respondent conceded jurisdictional facts
and the maximum wage for a date of injury of November 22,
2000, the last date the applicant actually worked. At issue
is whether there is a compensable work injury, causation of
death, medical expenses, burial expenses, and dependency.
The
commission has considered the petition and the positions of
the parties, and has independently reviewed the evidence.
Based on its review, the commission affirms the decision in
part and reverses the decision in part, and makes the
following:
Findings
of Fact and Conclusions of Law
1. The
applicant, who was born in 1935, worked for 46 years as a
mold maker in the respondent’s foundry. He was exposed
to sand and did not use a respirator.2 He retired in 2000 and died in 2015.
The applicant also smoked approximately ¼ pack of
cigarettes per day for 45 years, quitting in
2006.3
2. The
applicant’s work and medical records show that he
developed lung disease over time. The respondent’s
records show radiologic checks dating back to 1955. In 1987,
the applicant was first noted to have bullous emphysema at a
radiologic check done by the respondent.4 On May 4, 1996, x-rays showed
“Rather extensive lung disease most likely relating to
chronic interstitial fibrosis or other interstitial lung
disease along with COPD [chronic obstructive pulmonary
disease] and bullous changes in both
apices.”5 A chest CT on
December 5, 1997, noted severe emphysema with extensive
interstitial fibrosis and scarring.6 The respondent’s radiologic
record in October of 1997 showed the applicant had COPD and
interstitial fibrosis.[7]
3.
After the applicant retired in 2000, a diagnostic x-ray on
June 23, 2006, noted COPD with extensive chronic interstitial
lung disease and peripheral pulmonary fibrosis.8 The applicant was hospitalized in 2010
for COPD and pneumonia.
4. In
2014, the applicant developed pneumonia and his health
declined until his death in January of 2015. On July 25,
2014, the applicant was assessed with COPD with severe
expiratory airflow obstruction, silicosis with fibrosis,
resting hypoxemia corrected with supplemental oxygen, and
bilateral pneumonia.[9] On September
24, 2014, the impression noted COPD/emphysema, interstitial
lung disease/fibrosis, and pneumonia.10 Dr. Vidhyalakshmy Vivek, M.D., noted
the applicant’s primary discharge diagnosis on October
5, 2014, included pulmonary fibrosis “most likely from
silicosis.”[11] On
October 28, 2014, a medical note indicates the applicant had
an atypical mycobacterial infection of the lungs. His severe
diffuse emphysema had progressed, and there were areas of
necrosis in the left upper lung.12 The applicant died on January 8,
2015; the death certificate listed the immediate cause of
death as COPD, due to or as a consequence of silicosis;
pulmonary fibrosis.[13] No
autopsy was performed.
5. The
applicant submitted a WKC-16-B dated June 28, 2018, from Dr.
Kenneth D. Rosenman, M.D., FACE, FACOEM, FACPM.14 Dr. Rosenman opined that the
applicant’s 45-year exposure to silica, 1955-2000,
caused and was at least a material contributory causative
factor in the onset or progression of the applicant’s
advanced lung disease, silicosis, causing death. Dr. Rosenman
attached two letters to this WKC-16-B. In his first opinion
letter, dated March 25, 2016, Dr. Rosenman noted that he
reviewed the applicant’s medical records, his position
history report, and his death certificate. Dr. Rosenman
opined within a reasonable degree of medical certainty that
the applicant had advanced silicosis that caused his death,
and that his exposure to silica occurred during his 45 years
of work for the respondent. He noted that the applicant did
not have abnormalities on his breathing tests for the first
36 years or on his chest radiograph for the first 29 years of
his work; and that this latency was within the range of usual
onset of silicosis after initial exposure. Dr. Rosenman
specifically opined that “The fact that he smoked
cigarettes in no way negates the significance of silica
exposure on causing his death.”15 In support of this position, Dr.
Rosenman noted that there was a large literature on
obstructive lung disease in individuals with silica exposure
and whether or not the person smokes cigarettes, and he
specifically referenced six articles.
6. Dr.
Rosenman also attached a letter dated March 20, 2017, to
Exhibit A in which he responded to the respondent’s
doctor’s (Dr. Habel) opinion. Dr. Rosenman disagreed
with Dr. Habel that the applicant did not have silicosis, and
stated emphatically that the applicant “definitely had
silicosis.”[16] He noted
that his opinion was consistent with multiple clinicians who
had treated the applicant. In addition to silicosis, Dr.
Rosenman stated that the applicant also had COPD, which is a
multifactorial disease and only 10-15% of cigarette smokers
develop clinically significant COPD; he again referred to the
medical literature that silica exposure contributes to the
development of COPD and the articles he referenced
previously. To attribute all of the applicant’s lung
disease to cigarettes, Dr. Rosenman notes that Dr. Habel
ignores the applicant’s 45-year exposure to silica. The
applicant had advanced silicosis, which made him at risk for
pneumonia. He again opined that the applicant’s work
exposure was within a reasonable degree of medical certainty
a significant contributor to the applicant’s underlying
cause of death of silicosis and pulmonary fibrosis.
7. By
letter dated July 30, 2018, Dr. Rosenman responded to the
medical opinion of the respondent’s other doctor (Dr.
Ford).17 In this letter...
