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Wisconsin Insurance Security Fund v. Labor and Industry Review Commission10/20/2005
Before Lundsten, P.J., Dykman and Vergeront, JJ.
This is a worker 's compensation case. An employer, Eau Galle Cheese Factory, and the Wisconsin Insurance Security Fund appeal an order of the circuit court affirming an order of the Labor and Industry Review Commission regarding a worker 's compensation claim. The Commission's order granted employee David Kallstrom's claim for compensation for a back injury, and ordered that Eau Galle Cheese reimburse Kallstrom's health insurance carrier, Benefit Plan Administrators, for reasonably required medical expenses it incurred. The Fund is involved because Eau Galle Cheese's worker's compensation insurer was in liquidation.
Eau Galle Cheese argues that the Commission misinterpreted the law governing compensable occupational diseases. According to Eau Galle, in the absence of identifiable traumatic injury-causing events, there can be no occupational disease injury. Eau Galle Cheese also argues that the evidence is insufficient to support the Commission's finding of a compensable occupational back injury. The circuit court rejected these arguments. We likewise reject them, and affirm the circuit court.
On a separate topic, Eau Galle Cheese argues that the Commission erred when it ordered Eau Galle to reimburse Kallstrom's health care insurer for expenses that the insurer incurred treating Kallstrom's compensable occupational back injury. Eau Galle Cheese argues that when a subrogated insurer, such as Kallstrom's health care insurer, has paid medical expenses that arise from a compensable occupational injury under the worker 's compensation statutes, and when, as here, the employer's worker 's compensation insurance carrier is in liquidation, WIS. STAT.ยง 646.31(11) (2003-04) precludes the Commission from ordering the employer to reimburse the subrogated insurer. We agree and, therefore, reverse both the circuit court and the Commission in this respect.
Background
David Kallstrom began working for Eau Galle Cheese Factory in 1985. His work there required him to manually cut small blocks of cheese from larger blocks and manually stack the smaller blocks. The smaller blocks, together with the hoop used in stacking, averaged about thirty-five pounds. In August of 2000, Kallstrom was diagnosed with a herniated disk. An orthopedic surgeon, Dr. T. Sunil Thomas, diagnosed Kallstrom's condition as degenerative disk disease and disk herniation. Kallstrom underwent two surgeries to relieve the pain. He now suffers a 15% permanent partial disability as a result of his back problems. Kallstrom's health insurance carrier, Benefit Plan Administrators, covered $27,155.36 in medical expenses relating to this back injury.
In 2001, Kallstrom filed a claim with the Worker 's Compensation Division of the Department of Workforce Development. Kallstrom asserted that his back injury was due to working fifteen years as a cheese maker at Eau Galle Cheese. The claim alleged that years of "extensive, frequent, and repetitive bending, lifting and twisting while cutting, forming and pressing cheese" was responsible for the injury. Both Eau Galle Cheese and its worker 's compensation insurer, Reliance National Insurance Company, disputed the claim. At some point during these proceedings, the Wisconsin Insurance Security Fund assumed liability for Reliance when that company became insolvent and entered liquidation proceedings.
At a hearing on the matter, Eau Galle Cheese presented testimony from Dr. Stephen Barron. Dr. Barron gave extensive testimony explaining why he believed that it was not possible to identify Kallstrom's work at the cheese factory as the cause of his injury. The Commission also had before i
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