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COURT OF APPEALS
DECISION
DATED AND FILED
January 12, 2010
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 I
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Curtisthene Montgomery,
Petitioner-Appellant,
v.
Labor & Industry Review Commission and County of Milwaukee,
Respondents-Respondents.
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APPEAL
from an order of the circuit court for Milwaukee County: thomas r.
cooper, Judge. Affirmed.
Before Curley, P.J.,
Fine and Brennan, JJ.
¶1 FINE, J. Curtisthene Montgomery
appeals from an order of the circuit court affirming the decision of the Labor
and Industry Review Commission dismissing Montgomery’s traumatic- and
occupational-injury claims as not work-related. Montgomery argues that the Commission
exceeded its authority and violated her due-process rights by considering and dismissing
the occupational-injury theory of liability because she contends that she only
asserted a traumatic-injury theory of liability. We affirm.
I.
¶2 In 2002, Montgomery began working at the
Milwaukee County Courthouse as a security agent. On August 16, 2004, she was using a handheld metal detector
called a “wand” to detect any impermissible objects concealed by visitors entering
the courthouse. According to Montgomery,
she was wanding a visitor on that date when she felt a painful “pop” in her
neck. She says that she reported the
incident to Ernesto Sanchez, who was the person in charge, but was told that
she could not leave because of a staff shortage. Sanchez denied talking
with Montgomery
on August 16th, testifying that
he was on vacation that day. The
following day, Montgomery
says she was assigned duties that did not require wanding. The next week she was transferred to a
non-wanding position, and, after that, her jobs rotated, including occasional
wanding. Montgomery continued to work, including
overtime hours, until her vacation in October of 2004. At the end of the vacation, she sought
medical treatment for the first time. On
the day she was to return to work, Sanchez testified
that Montgomery
phoned him and reported that she was having “pain in her shoulder” caused “by
sleeping on her shoulder” the night before.
According to Sanchez, she did not tell him
that the pain stemmed from an earlier “wanding” injury. She worked for a few hours on October 18, 2004. On October 19, 2004, her doctor told her that she should not
return to work because she complained of “extreme pain in the right arm and
right neck and also numbness and tingling and loss of strength in the right arm.”
The doctor ordered physical therapy for
her.
¶3 In June of 2005, Montgomery applied for worker’s
compensation, claiming that she: “Injured
Neck/Shoulder while wanding at work in August 2004. Pain increased and she was forced to miss
work starting October 19,
2004.” At the start of the hearing in February of
2007, the administrative law judge said:
There were 2 injury dates here, one was August 16th, 2004 and the
other October 18th, 2004. At issue is whether the injury arose out of
or incidental to the work for the respondent….
First [of] all, [counsel for Montgomery,]
is that an accurate and complete statement of the matters conceded and issues
in dispute as far as your client’s concerned?
Montgomery’s
lawyer answered: “It is with the
exception that there -- we’re not making a claim at this time for the
shoulder.” Montgomery’s
medical records were introduced at the hearing.
The administrative law judge summarized the medical records:
She … sought treatment from
the emergency room at St.
Mary’s Hospital. At that time she mentioned her work duties,
but did not say she sustained a traumatic work injury. The emergency room doctor indicated that the
applicant reported pain over the last week and diagnosed the condition as a
cervical strain. The applicant sought
treatment from Dr.
T.A. O’Connor,
her regular doctor. Again the applicant did
not report a traumatic August 2004 injury....
... When the applicant first
saw Dr. O’Connor on October 19, 2004 she gave a one week history
of symptoms and no history of a traumatic injury. In his [medical report on the
workers’-compensation form] WKC-16B of November 12, 2004, Dr. O’Connor
indicated that the applicant suffered a traumatic injury on “October 18, 2004,” …. In his WKC-16B of June 9, 2006, Dr. O’Connor
then lists injury dates of August
16, 2004 and October
18, 2004. The applicant was
referred to Dr.
N. M.
Reddy … for an independent medical evaluation. Dr. Reddy indicated that the applicant had a
pre-existing cervical condition … [and] “she was at a higher risk to develop
severe symptoms if there was an acute traumatic event such as the one in August
2004.” The applicant was referred to Dr. Michael
Mitchell[, who] opin[ed] that the claimed August 16, 2004 injury aggravated the
pre-existing cervical disc disease. The
applicant’s treating surgeon was Dr.
Michael Major
… [who initially opined] that the applicant had degenerative cervical arthritis
[but] could not say whether the work aggravated and accelerated the
degenerative condition beyond normal progression. Initially he also lists the injury date as October 18, 2004. Later, he lists the claimed injury date of August 16, 200[4]. Permanent disability assigned by Dr. Major
is 25 percent, with half due to the pre-existing condition and half due to the August 16, 2004 work
injury. The applicant was also seen by Dr. Jack
Deckard … [who] could not determine if
any portion of the applicant’s degenerative disc disease was work related. The applicant was seen by Dr. Theodore
Bonner …. Dr.
Bonner opined that he could not state
to a reasonable degree of medical certainty that the applicant’s cervical
condition was work related. The
applicant was also seen by Dr.
Richard Karr,
the respondent’s independent medical examiner.
Dr. Karr opined that the applicant suffered from
degenerative cervical stenosis, which was not aggravated by her work.
¶4 During the hearing, Montgomery’s lawyer asked her: “With regard to the information that was given
in your statement, when you were asked about a specific event, in your mind is
there one specific event that caused all of your problems including your neck
that radiated down your arm?” Montgomery
answered: “No.” Her lawyer then asked: “It’s not just 1 day that caused the
problem?” to which Montgomery
said: “Correct. Yeah.”
¶5 The administrative law judge concluded that Montgomery had not
proven she sustained either a traumatic injury on August 16, 2004, or an occupational injury on October 18, 2004. The Commission affirmed the administrative
law judge, and, as we have seen, the circuit court affirmed the Commission.
II.
¶6 Montgomery
claims that the Commission exceeded its authority by dismissing the
occupational-injury theory of liability. She argues that she never raised that theory
and her “due process rights” were violated because that claim was not properly
“noticed for hearing” depriving her “of a full and fair hearing on that type of
injury.” (Uppercasing omitted.) The
Record belies her claim.
¶7 On appeal, we review the decision of the Commission, not the
circuit court. General
Cas. Co. of Wisconsin v. Labor &
Indus. Review Comm’n, 165 Wis.
2d 174, 177 n.2, 477 N.W.2d 322, 323 n.2 (Ct. App. 1991). The Commission’s factual findings are
invulnerable when they are “supported by credible and substantial
evidence.” Id.,
165 Wis. 2d
at 178, 477 N.W.2d at 324. There is substantial evidence in the Record to
support the Commission’s decision that Montgomery’s injury was not
compensable; in fact, the Record reveals that there is little evidence to
support her claim that a traumatic injury even occurred on August 16, 2004. There was no report of the traumatic injury
except Montgomery’s
claim that she told the person in charge, who, as we have seen, denied that. Montgomery continued to work and
did not seek any medical treatment until two months later. When she did seek treatment, she did not
mention the “pop” or pain from August 16th,
but instead reported having pain during the week preceding her first seeking
treatment. Further, Dr. Deckard,
Dr. Bonner, and Dr. Karr opined that Montgomery
suffered from degenerative disc disease not related to her work and not
aggravated by her work. Thus, there is
substantial credible evidence to support the Commission’s decision.
¶8 As we have seen, Montgomery argues the Commission
exceeded its authority by deciding an issue that she did not raise, namely the
occupational-injury claim. Whether the
Commission exceeded its authority and whether Montgomery’s due-process rights
were violated are legal questions subject to de novo review. See Waste
Management Inc. v. Labor & Indus. Review Comm’n, 2008 WI App 50,
¶8, 308 Wis. 2d 763, 770, 747 N.W.2d 782, 785–786. The Commission did not
exceed its authority.
¶9 As noted, Montgomery’s
application for benefits references both the August (traumatic) and October
(occupational) injury dates. At the
start of the hearing, the administrative law judge indicated without objection
that the hearing would cover both the August and October injury dates. Indeed, Montgomery’s lawyer affirmatively
acknowledged that the administrative law judge’s statement of the hearing’s
scope was correct. During the hearing,
both sides presented medical records referencing both dates. Montgomery testified that there was
no one single date to which she could pin her alleged injury. Her doctor’s report references involvement of
both traumatic and occupational injury.
¶10 Montgomery
has not shown, beyond mere assertion, that she was deprived of any due-process
rights. As in criminal appeals, “[t]o
simply label an alleged procedural error as a constitutional want of due process
does not make it so.” See State v. Schlise, 86 Wis. 2d 26, 29, 271 N.W.2d 619, 620 (1978). Montgomery has not provided any
evidence showing how she was harmed nor has she submitted anything indicating she
was prevented from introducing additional evidence, or, significantly, what
that evidence would have been. She has thus
failed to show that she was prejudiced by the Commission’s consideration of the
date of the alleged occupational injury.
By the Court.—Order affirmed.
Publication
in the official reports is not recommended.