COURT OF APPEALS DECISION DATED AND FILED November 19, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Acuity Insurance Company appeals from an order confirming a decision of the Labor and Industry Review Commission (LIRC) dismissing Acuity’s claim for decreased compensation under Wis. Stat. § 102.58 (2005-06).[1] Credible and substantial evidence supports LIRC’s decision, and the evidence does not offer a more reasonable conclusion. We therefore must affirm.
¶2 Crest Concrete Products employed Theodore Whitman as a truck
driver. On September 6, 2005, Whitman’s
boom truck crossed the center line, ran across the opposite traffic lanes,
crashed through a guardrail, plummeted down an embankment and collided with a
freight train. Whitman was pronounced
dead at the scene. The
¶3 Acuity, Crest’s worker’s compensation insurer, conceded liability for death benefits but claimed entitlement to decreased compensation payments under Wis. Stat. § 102.58. At the worker’s compensation hearing, the administrative law judge (ALJ) dismissed Acuity’s claim because it concluded that Acuity did not carry its burden of proof. LIRC adopted the ALJ’s findings and order, and the circuit court confirmed LIRC’s decision. Acuity appeals.
¶4 Resolution of this appeal is driven wholly by our standard of
review. Although the appeal is taken
from a circuit court’s review of a LIRC decision, we review LIRC’s decision,
not the circuit court’s. Virginia
Sur. Co. v. LIRC, 2002 WI App 277, ¶11, 258
¶5 Acuity also challenges LIRC’s findings of fact. LIRC’s findings are conclusive on appeal as
long as they are supported by credible and substantial evidence. Wis.
Stat. § 102.23(6). The evidence
only need be sufficient to exclude speculation or conjecture. Ide v. LIRC, 224
¶6 The two-part issue is whether Whitman was intoxicated and, if
so, whether the accident resulted from his intoxication, thus entitling Acuity
to a fifteen-percent reduction in compensation payments. Both present questions of fact, and LIRC may
draw reasonable inferences regarding both from the credible and substantial
evidence. See Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30, ¶56, 242
¶7 LIRC adopted the ALJ’s findings as its own and upheld the ALJ’s order. It is not entirely clear, however, that LIRC or the ALJ conclusively found intoxication.[3] At the worker’s compensation hearing, Acuity submitted as evidence the state lab reports and the report of occupational medicine consultant Dr. James C. Foster. By extrapolating the vitreous humor alcohol result of 0.341 using one of several variances, Dr. Foster opined to a reasonable degree of medical certainty that Whitman’s BAC was at least 0.29 and that his BAC likely caused or contributed to the fatal accident. The ALJ confessed to being left with questions about the reliability and validity of the test results underpinning Whitman’s “alleged intoxication,” however. The ALJ noted, for instance, that while the fluid samples were collected on September 6, 2005, the state lab received them on September 19 and issued its findings on October 26. The report left unexplained the delay, the date of testing and the significance, if any, of the notation that the specimens were received “labeled but not sealed.” The ALJ also questioned (1) why, when faced with “discrepancies” in the literature about extrapolating BAC from vitreous humor results, Dr. Foster consulted with the Kenosha county medical examiner instead of the one who collected the samples; (2) why Dr. Foster selected the extrapolation method he did; and (3) the total lack of evidence about Whitman’s general health, the truck’s mechanical condition, and any intervening incident that might have caused the accident. To those findings, LIRC added that there was no evidence that anyone witnessed Whitman drinking.
¶8 Whether or not the ALJ or, vicariously, LIRC found
intoxication is immaterial, however, because the employer must prove both
intoxication and causation. See id.
Acuity contends Dr. Foster’s opinion established a causal connection
because it described how “Whitman’s intoxication caused impairment and affected
his ability to drive his vehicle.” Not
precisely. Dr. Foster described how
intoxication affects motorists generally, not its particular effect on
Whitman. LIRC may draw reasonable
inferences about causation from the credible and substantial evidence. See
Heritage
Mut. Ins. Co., 242
¶9 Moreover, LIRC did not accept the causal connection Dr. Foster drew. The ALJ found that Dr. Foster was neither a forensic expert nor an accident reconstruction expert and so could “hardly independently explain what the vitreous humor test result means.” No other evidence was introduced from which a causal connection between Whitman’s alleged intoxication and his fatal injury could be inferred. Besides adopting these findings as its own, LIRC added that no witnesses established unsafe or erratic driving or that Whitman was unconscious or passed out at the time of the accident due to intoxication. LIRC concluded that Dr. Foster’s report cited nothing established beyond a speculative level that intoxication was a substantial factor in Whitman’s death.
¶10 Acuity also argues that causation was established because Dr.
Foster’s medical opinion is the only one in the record. Such an argument suggests that the burden
then shifts to the claimants so that, as in Wis.
Stat. § 940.25 (2)(a), to show that the injury would have occurred
even without the intoxication. The
burden does not shift, however. The
results of scientific tests are not conclusive even if they are not
contested. Consolidated Papers, Inc. v.
DILHR, 76
¶11 Acuity also asserts that it cannot be required to negate all
possible explanations of the truck careening over the embankment to the
railroad tracks below. We agree. See
Haller
Beverage Corp., 49
¶12 Acuity in essence asks us to substitute its own conclusions—or
ours, should we agree with them—for those of LIRC. Such a request misapprehends our limited
standard of review. By adopting and
upholding the ALJ’s findings, LIRC found that Dr. Foster’s opinion fell short
of being credible and substantial. See Secura Ins. v. LIRC, 2000 WI App
237, ¶23, 239
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Under Wis. Stat. § 102.58, “if injury results from the intoxication of the employee by alcohol beverages, as defined in [Wis. Stat. §] 125.02 (1) … the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000.” All references to the Wisconsin Statutes are to the 2005-06 version.
[2] Vitreous humor is the clear, colorless, transparent jelly that fills the eyeball behind the lens. See Webster’s Third New International Dictionary 2559 (1993).
[3] The
ALJ referred to Whitman’s “alleged
intoxication” and went on to say that “[e]ven if” the vitreous humor
sample results validly supported a conclusion of intoxication, that evidence
alone would not support Acuity’s claim for reduced payments. In addition, LIRC itself said that, “[e]ven
assuming Mr. Whitman was intoxicated,” there was no evidence he was driving
erratically, was unconscious, otherwise disabled or “suffered any ill effects when he was intoxicated.” (Emphasis added.) “[W]hen he was intoxicated” reasonably can be
read as following from the earlier-stated assumption. We look to support the finding that was made,
not to find support for one that was not.
Briggs & Stratton Corp. v. DILHR, 43