COURT OF APPEALS
DECISION
DATED AND FILED
December 23, 2008
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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Joseph Wilson,
Plaintiff-Appellant,
v.
State of Wisconsin,
Labor and Industry Review Commission, Tradesmen International and
Transportation Insurance Company,
Defendants-Respondents.
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APPEAL
from an order of the circuit court for Dane County: diane
m. nicks, Judge. Affirmed.
Before
Higginbotham, P.J., Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Joseph Wilson appeals a circuit
court order affirming the Labor and Industry Review Commission’s denial of his
claim for worker’s compensation benefits.
We affirm.
BACKGROUND
¶2 Wilson
worked as a roofer for Tradesman International. It is undisputed that he injured his left knee
during the course of his employment on July 22, 2003, and was paid temporary
disability benefits for that injury from July 23, 2003 to October 10,
2003. However, Wilson continued to experience problems with
both his right and left knees after October 10, 2003, which culminated in
bilateral knee surgery in 2005 and physical therapy continuing into 2006.
¶3 Wilson
sought additional disability benefits through the worker’s compensation
program. The Commission determined,
however, that Wilson’s
continuing knee problems were attributable to a degenerative condition and were
not caused by a traumatic injury at work. It therefore denied additional compensation.
¶4 The circuit court affirmed the Commission’s decision on
certiorari review, and Wilson
appeals. He argues that: (1) the
Commission erred in considering a WKC-16 “Report on Industrial Injury” form as
to the cause of his injury when the record also contained a WKC-16-B
“Practitioner’s Report in Lieu of Testimony” form; and (2) the Commission’s
material findings of fact were not supported by substantial and credible
evidence. We will set forth more
detailed facts relating to these issues in our discussion below.
STANDARD OF REVIEW
¶5 We review the decision of the administrative agency rather
than that of the circuit court. Currie
v. DILHR, 210 Wis.
2d 380, 386, 565 N.W.2d 253 (Ct. App. 1997).
Our certiorari review is limited to considering: (1) whether the agency
kept within its jurisdiction; (2) whether it proceeded on a correct theory of
law; (3) whether its action was arbitrary, oppressive or unreasonable,
representing its will rather than its judgment; and (4) whether it could
reasonably make the determination in question based upon the evidence before
it. State v. Waushara County Bd.
of Adjustment, 2004 WI 56, ¶12, 271 Wis. 2d 547, 679 N.W.2d 514.
¶6 LIRC’s findings of fact on worker’s compensation issues are
conclusive in the absence of fraud or action outside of its authority. Wis.
Stat. § 102.23(1)(a) (1999-2000).
Therefore, we may not substitute our judgment for that of LIRC as to the
weight or credibility of the evidence. Advance
Die Casting Co. v. LIRC, 154 Wis.
2d 239, 249, 453 N.W.2d 487 (Ct. App. 1989).
Rather, we must examine the record for any credible and substantial
evidence that supports the agency’s determination. Wis.
Stat. § 102.23(6) (2005-06);
Currie, 210 Wis.
2d at 387.
DISCUSSION
¶7 Tradesman International offered into evidence a WKC-16 form
filled out by Dr. James Self. Dr. Self
was the physician who had treated Wilson’s
left knee in the months immediately following the work incident. On the form, Dr. Self diagnosed Wilson as having suffered
a left knee strain on 7/22/03 which had completed healing by 10/11/03 and left
no permanent disability. Wilson stipulated to the
form’s admission, and did not offer any objection to its consideration during
the hearing.
¶8 Wilson now contends that the Commission could not rely on
Dr. Self’s WKC-16 form as evidence of the cause and extent of his
disability after October of 2003 because: (1) the form was not “certified” as
generally required by Wis. Stat.
§ 102.17(1)(d) and Wis. Admin. Code
§ DWD 80.22; and (2) the form did not explicitly address the cause of Wilson’s
post-October-2003 knee problems, which were the actual subject of the current
disability claim. Wilson, however, waived any objection to the
lack of certification by stipulating to the form’s admission. Once admitted, the Commission was free to
consider the form for any relevant purpose, including causation. Although Dr. Self could obviously not offer
an opinion as to the causation of complaints which had not yet been made at the
time he filled out the report, the Commission could make inferences about the
causal connection between the work incident and Wilson’s post-October-2003
problems based upon Wilson’s failure to seek treatment from Dr. Self for his
right knee prior to October of 2003 and Dr. Self’s opinion that Wilson’s left
knee had healed from his work injury without any permanent disability by that
time.
¶9 Wilson also attempts to argue
that the information contained in Dr. Self’s WKC-16 form could not be used to
overcome a presumption
arising from other medical reports Wilson had
submitted on WKC-16B forms which were certified and did directly address the
causation of Wilson’s
subsequent knee problems. However, it
was for the Commission to decide what weight to give each of the medical
reports before it. This court will not
substitute its judgment for that of the Commission in that regard.
¶10 In sum, we are satisfied that Dr. Self’s WKC-16 form in and of
itself provided substantial and credible evidence to support the Commission’s
determination that Wilson’s work injury on July 22, 2003 was not the cause of
his post-October 2003 knee problems.
Additional medical records detailing Dr. Self’s treatment of Wilson
bolster that determination by showing that Wilson did not make complaints about
his right knee and had reported improvements in his left knee in the months
following the work incident; and that he suddenly insisted in February of 2004
that it was his right knee which had been hurting him all along. There is no basis to overturn the Commission’s
decision.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.