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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 27, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3424-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
GISELLA WOOD,
Plaintiff-Respondent,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendant-Appellant,
BRIGGS & STRATTON
CORPORATION,
Defendant.
APPEAL from an order of
the circuit court for Milwaukee County:
LOUISE M. TESMER, Judge. Affirmed
and cause remanded.
Before Sullivan, Fine
and Schudson, JJ.
PER CURIAM. The Labor and Industry Review Commission
(LIRC) appeals from a circuit court order reversing its decision to deny
Gisella Wood worker's compensation benefits.
LIRC's decision affirmed an administrative law judge's (ALJ) findings
that Wood sustained a transient aggravation of a pre-existing back problem but
no permanent disability. Based on these
findings, LIRC denied Wood's claim to compensation for loss of earning
capacity. The circuit court reversed
LIRC's decision, concluding that there was insufficient credible evidence in
the record to support LIRC's decision.
Because the trial court correctly decided that LIRC's decision was
predicated on two material factual errors, we affirm the trial court's order.[1]
BACKGROUND
Wood applied for
permanent partial disability under Wisconsin's worker's compensation act. Because Briggs & Stratton denied that
Wood's "accident or disease causing injury arose out of [her] alleged
employment" at Briggs & Stratton, a hearing was conducted on Wood's
claim. Our summary of the evidence
submitted at the hearing follows.
Wood was employed by
Briggs & Stratton for thirty years.
For many years she worked as a parts deburrer until that job was
eliminated in December of 1990. Wood
then transferred to the "focus factory" where she operated machines
that reamed, drilled, and tapped motor components. Wood estimated that her line made one motor every seventeen
seconds. The cylinders that Wood
handled weighed approximately twelve pounds.
It was undisputed that Wood's operation of the machinery and handling of
the cylinders required her constant bending, lifting, turning, and twisting.
On September 24, 1991,
Wood ceased working due to back problems and sought medical treatment. She was seen by her family physician who
referred Wood to Dr. Steven L. Nord, an orthopedic specialist. Dr. Nord determined that Wood had aggravated
a pre-existing degenerative disc condition causing her to become
symptomatic. After treating Wood for
ten months, Dr. Nord found that Wood had a permanent disability that limited
her residual functional capacity to light/medium work as of August 4, 1992. More specifically, Dr. Nord reached the
opinion that Wood had suffered a 2% permanent partial disability due to her
lower back condition.
On November 20, 1991,
Wood saw Dr. David Haskell for a brief independent medical examination. Dr. Haskell, retained by Briggs &
Stratton for the examination, issued a report determining that Wood suffered
from a "transient aggravation" of a pre-existing degenerative disease
secondary to rheumatoid arthritis in the lumbar spine and degenerative disc
disease. Dr. Haskell offered the
opinion that no permanent disability had arisen from Wood's work. Dr. Haskell determined that Wood could
return to work with certain permanent limitations, including the elimination of
repetitive lifting, bending, twisting, and turning. Dr. Haskell put a thirty-five pound weight limit on any regular
lifting by Wood.
Frank R. Fischer, Briggs
& Stratton's personnel manager, testified that Wood was on temporary
total disability from September 25, 1991, until approximately November 25,
1991. Thereafter, Wood was placed on
temporary layoff status by the company and was paid unemployment
compensation. Wood subsequently
retired.
The ALJ rejected Wood's
application for permanent partial disability.
After first finding that the parts Wood lifted weighed less than one
pound each, the ALJ concluded that Dr. Haskell's opinion was more credible than
Dr. Nord's opinion regarding Wood's condition "since the weights involved
in the employment were minimal and the length of the employment was for a
relatively short period before the onset of back symptoms." LIRC affirmed and Wood sought judicial
review in the circuit court. The trial
court reversed LIRC's decision for the reason that it was predicated on key
errors of fact and remanded the matter for further proceedings. LIRC now seeks this court's review.
DISCUSSION
We
review LIRC's decision under the same standard of review as the trial
court. See Nelson v. LIRC,
123 Wis.2d 221, 224, 365 N.W.2d 629, 630 (Ct. App. 1985). LIRC's findings of fact are conclusive as
long as they are supported by credible and substantial evidence. Section 102.23(6), Stats. Accordingly,
our role is limited to reviewing the record to determine if substantial
credible evidence exists to support LIRC's findings. Vande Zande v. DILHR, 70 Wis.2d 1086, 1097, 236
N.W.2d 255, 260 (1975).
"Substantial evidence is evidence that is relevant, credible,
probative, and of a quantum upon which a reasonable fact finder could base a
conclusion." Cornwell
Personnel Assocs., Ltd. v. LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705,
707 (Ct. App. 1993).
LIRC contends that the
record contained credible and substantial evidence to support its decision that
"given the minimual [sic] amount of weight involved in her work, Dr.
Haskell's opinion is most credible that her continuing back problems are
related to her preexisting advanced degenerative condition, and not due to her
work for the employer." We
disagree.
The record was
undisputed that Wood's employment required her to lift twelve-pound cylinders
while continuously twisting, bending and turning. Apparently confusing the testimony of Wood regarding the
conditions of her employment and the testimony of the personal manager
regarding alternative employment that Briggs & Stratton was considering
offering to Wood, the ALJ made an erroneous finding of fact:
In August 1991, the applicant developed
the gradual onset of low back pain which she related to lifting cylinders which
she claims weighed 10 pounds. However,
these pistons were the size of a baseball and the rod was only three or four
inches in length as testified by the respondent's personal [sic] manager and
his estimate that they weighed less than a pound is adopted herein.
The
ALJ went on to rely on that erroneous finding of fact to determine that Dr. Haskell's
opinion regarding the cause of Wood's back condition was more credible than the
opinion of Dr. Nord.
When confronted by
Wood's claim that the ALJ's decision contained a material and erroneous finding
of fact, LIRC drafted a decision both embracing the ALJ's error and expanding
the error by speculating that no medically significant distinction exists
between lifting a one-pound piston or a ten-pound cylinder:
[T]he
Commission does not find that the Administrative law Judge made an error of
fact. The Administrative Law Judge
found that the applicant's work involved weights which were minimal. The Commission agrees with the
Administrative Law Judge that whether the applicant's work involved weights of
10 pounds, or less than one pound, the amount of weight involved was minimal.
We cannot affirm LIRC's
decision. The record submitted to the
ALJ contained no evidence to support the ALJ's initial finding that the motor
parts involved weighed one pound each or LIRC's speculative finding that the
weight of the motor parts involved were minimal, whether these parts weighed
one pound or ten pounds. Because LIRC's
speculative finding of fact was the linchpin of its decision to adopt the ALJ's
finding that Dr. Haskell's medical opinion was more credible than
Dr. Nord's and to dismiss Wood's claim, the circuit court's order to
reverse and remand the matter for further proceedings must be affirmed.
By the Court.—Order
affirmed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.