General Casualty Co. v. Labor & Industry Review Commission

*183GARTZKE, P.J.

(concurring). I agree with the result, but I note that Sharon Plumbing's liability and that of its insurer turn on a fortuitous circumstance: that Schrock saw a doctor during working hours on a workday rather than after hours or on a weekend. This follows from the cases relied upon by LIRC: Wagner v. Industrial Comm'n., 273 Wis. 553, 79 N.W.2d 264 (1956), modified, 273 Wis. 567a, 80 N.W.2d 456 (1957) and Royal-Globe Ins. Co. v. DILHR, 82 Wis. 2d 90, 93, 260 N.W.2d 670, 672 (1978) (per curiam). The Royal-Globe court said:

While sec. 102.01(2) provided that in case of occupational disease the date of injury is the last day of work for the last employer whose employment caused disability, such provision applies only when the wage loss occurs after the termination of employment, and, where there is wage loss from the occupational disease before the termination of employment, the date of the commencement of such wage loss establishes the date of injury. (Quoting from Wagner, 273 Wis. at 561, 79 N.W.2d at 268) (emphasis added).

According to LIRC, it has consistently interpreted "wage loss" to include lost time from work, even if later recompensed, because disability occurs when the symptoms of the occupational disease result in lost work time. I agree with that interpretation.

However, it is poor policy to make the right of an employee for worker's compensation from a particular employer dependent upon so flimsy a basis as seeing a doctor on company time rather than the employee's time. Luck was on Schrock's side. Luck may not be on the next employee's side.