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COURT OF APPEALS
DECISION
DATED AND FILED
March 5, 2009
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 II
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Aurora Medical Center and Sentry
Insurance, A Mutual Company,
Plaintiffs-Appellants,
v.
The State of Wisconsin
Labor and Industry Review Commission and Curtis G. Thoms,
Defendants-Respondents.
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APPEAL
from an order of the circuit court for Manitowoc County: jerome
l. fox, Judge. Affirmed.
Before Dykman, Vergeront and Bridge, JJ.
¶1 PER CURIAM. Aurora Medical Center and Sentry
Insurance, a Mutual Company (collectively Aurora), appeal from the order of the
circuit court affirming the order of the Labor and Industry Review Commission (LIRC)
awarding compensation to Curtis G. Thoms for a work-related injury. Aurora
argues that there was no credible evidence to support LIRC’s finding that this
was a work-related injury and not a preexisting condition, and that LIRC improperly
placed the burden of proof on it.
Because we conclude that there was sufficient evidence to sustain LIRC’s
findings and conclusions, and that LIRC did not place the burden of proof on the
employer, we affirm.
¶2 Thoms claimed to have been injured on December 28, 2004,
while he was working as a CT scan technician at Aurora Medical
Center. He claimed that he injured his back when he
and two co-workers moved a heavy patient from a gurney onto a CT scan table. Shortly after being injured, Thoms was
examined by Dr. Max Ots. Dr. Ots concluded
that while Thoms had preexisting degenerative changes, the work incident had
aggravated the condition. Ots performed
surgery on Thoms in February 2005. Thoms
was also examined by a physician on behalf of the employer in September 2005.
¶3 In 2006, the Department of Workforce Development held a
hearing on Thoms’ claim for worker’s compensation. The ALJ found that Thoms sustained a
compensable permanent partial disability as a result of an injury on December
28, 2004. The ALJ further found that
while Thoms had a preexisting condition, doctors opined that the work-related
incident was sufficient to aggravate the condition. The ALJ ordered Aurora to pay Thoms worker compensation
benefits. Aurora appealed to LIRC, and LIRC also found
that while Thoms had a preexisting condition, the work-related incident was
sufficient to aggravate, accelerate, and precipitate that condition beyond
normal progression. It therefore
affirmed the ALJ’s decision. Aurora then appealed to
the circuit court, and it also affirmed LIRC’s decision. Aurora
now appeals to this court.
¶4 Our review is of LIRC’s decision, not the decision of the
circuit court. See Wisconsin Dept. of Revenue
v. Menasha Corp., 2008 WI 88, ¶46, 311 Wis. 2d 579, 754 N.W.2d
95. We will uphold LIRC’s findings of
fact on appeal so long as they are supported by credible and substantial
evidence. Applied Plastics, Inc. v. LIRC,
121 Wis. 2d
271, 276, 359 N.W.2d 168 (Ct. App. 1984); Wis.
Stat. § 102.23(6) (2007-08).
We will not substitute our judgment for LIRC’s
in considering the weight or credibility of the evidence on any finding of
fact. Advance Die Casting Co. v. LIRC,
154 Wis. 2d
239, 249, 453 N.W.2d 487 (Ct. App. 1989); § 102.23(6).
¶5 Aurora
argues that LIRC’s findings of fact are not supported by credible
evidence. Specifically, Aurora argues that there
was no evidence in the record that Thoms told the treating doctor that he had a
preexisting condition, nor any evidence that the injury actually occurred on
December 28, 2004. Aurora asserts that Thoms lied at the hearing
about the fact that, before the injury, he had made and canceled two
appointments with a neurologist, which were made because he had neck pain,
right arm weakness, and tingling. Aurora
also argues that Thoms incorrectly stated both the date on which he was injured
and the date on which he made an appointment to see Dr. Ots. Aurora
suggests, therefore, that the court should conclude that all of Thoms’
testimony was false.
¶6 As LIRC noted in its decision, the key issue in this case is
one of credibility. LIRC concluded that,
even assuming Thoms “was suffering from symptoms of right extremity numbness
and tingling prior to the work incident, this fact does not defeat [his] claim.”
LIRC found that both of the doctors who
examined Thoms concluded that the work incident was sufficient to aggravate his
condition. The evidence supports LIRC’s finding,
and we will not disturb it.
¶7 Aurora
also argues that there was no evidence that Thoms actually suffered this injury
on the date he said he did. LIRC, however,
found that Thoms had testified that he had been injured on this date, and the
doctor’s report verified that he had been treated for the injury shortly
thereafter. LIRC further noted that the
ALJ was the arbiter of credibility, and there was nothing in the record to
warrant overturning the determination that the incident occurred.
¶8 We conclude that LIRC’s findings of fact are supported by
credible and substantial evidence, and we will not substitute our judgment for
LIRC’s. The ALJ found Thoms to be a
credible witness, and we agree with LIRC that nothing in the record warrants
overturning the ALJ’s credibility determination.
¶9 Aurora
further argues that the ALJ unfairly shifted the burden of proof to the
employer. In support of this argument, Aurora points to the statement of the ALJ that he assumed Aurora had interviewed two
of Thoms’ co-workers who were working with him on the day of the incident, but
that the employer had not called those witnesses to testify that the incident
did not occur. Aurora argues that this shifted the burden of
proof on the fact that the incident occurred to it. We disagree.
¶10 In making that statement, the ALJ was noting that there were
witnesses who potentially could have refuted Thoms’ testimony. The implication being that if the witnesses
could have refuted Thoms’ testimony, then Aurora
would have called them. The ALJ did not shift
the burden to Aurora. Rather, the ALJ concluded that Thoms had met
his burden of proof, and that Aurora
had not offered potentially relevant testimony to refute his evidence.
¶11 In sum, we conclude that there was sufficient evidence in the
record to support the credibility determination made by the ALJ. We also conclude that the ALJ did not shift the
burden of proof, but rather found that Thoms had met his burden of proof. For the reasons stated, we affirm the order
of the circuit court.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.