COURT OF APPEALS DECISION DATED AND RELEASED August 22, 1995 |
NOTICE |
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. 95-0025
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
ST. JOSEPH'S HOSPITAL,
Petitioner-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
GREGORY OTIS SCOTT,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County: ARLENE D. CONNORS, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. St. Joseph's Hospital (the Hospital) appeals from an order
of the trial court affirming an order of the Labor and Industry Review
Commission (the Commission) which awarded Gregory Otis Scott temporary
disability benefits totaling $11,603.20 for the period of January 1, 1991,
through August 26, 1992, plus $2,900.80 in attorney fees, and indemnity for future
medical treatment. The issue is whether
there is credible and substantial evidence to support the Commission's
conclusion that Scott sustained a temporary disabling injury during his
employment, entitling him to disability benefits.
We conclude that the
Commission's determination to award Scott temporary disability benefits was
supported by credible and substantial evidence in the record and applicable
law. Therefore, we affirm the trial
court's order.
On June 16, 1990,
Gregory Otis Scott slipped and fell on his buttocks when placing a “wet floor”
sign in a hallway at St. Joseph's Hospital where he worked as a housekeeping
aide. He went to the emergency room and
a physician diagnosed him with “acute low back strain.” The physician noted that there was “no
radiculopathy to legs.” Scott filled
out an “Employee Incident Report” on that same day. Two days later, Scott told the Hospital he could not work. He began seeing his family physician, Dr.
David Amos, for medical care. In August
1990, Dr. Amos referred him to Dr. William McDevitt, an orthopedic
surgeon. Dr. McDevitt ordered a
lumber spine CT scan which indicated a bulging disc at the L5‑S1 spinal
level. Dr. McDevitt prescribed
physical therapy and told Scott he could return to work. Scott became dissatisfied with Dr.
McDevitt's care and began seeing Dr. Michael Major, also an orthopedic surgeon,
for treatment. Dr. Major ordered a
lumbar myelogram and a post-myelogram CT scan which indicated a central-right
disc bulge at L5‑S1 and degenerative disc disease at that same level and
at the L4‑5 level. Dr. Major
diagnosed Scott with degenerative disc disease with an acute herniation at the
L5‑S1 level resulting from his injury at the hospital and recommended
surgery. The Hospital denied payment for
Scott's surgery based upon Dr. McDevitt's opinion that surgery was necessary to
correct pre-existing degenerative problems, not the injury he sustained during
his fall while at work.
Scott then received a
hearing before an administrative law judge (ALJ). In its interlocutory order, the ALJ adopted Dr. Major's findings
and diagnoses concerning Scott's medical condition, concluding that they were
more compelling than Dr. McDevitt's.
The ALJ then ordered the Hospital to pay Scott temporary total disability
benefits, all costs and indemnity related to cure him of the effects of his
injury. The Hospital sought review with
the Commission, which affirmed and adopted the ALJ's decision and findings. The Hospital then petitioned the circuit
court to review the Commission's order.
The circuit court issued an order affirming the Commission's decision,
from which the Hospital now appeals.
STANDARD OF REVIEW
“Judicial review of
administrative determinations is purely statutory.” F.F. Mengel Co. v. Check, 147 Wis.2d 666, 669, 433
N.W.2d 651, 652 (Ct. App. 1988).
Section 102.23 (1)(a), Stats.,
states: “The order or award granting or
denying compensation, either interlocutory or final ¼ is
subject to review only as provided in this section ¼.” Our scope of review is set forth in § 102.23
(6), Stats.: “The court may ¼ set
aside the commission's order or award and remand the case to the commission if
the commission's order or award depends on any material and controverted
finding of fact that is not supported by credible and substantial
evidence.” See also General
Casualty Co. v. LIRC, 165 Wis.2d 174, 178, 477 N.W.2d 322, 324 (Ct.
App. 1991). “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. v. LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705, 707
(Ct. App 1993). We will uphold this
credible and substantial evidence as supporting the Commission's findings of
fact even if it is “against the great weight and clear preponderance of the
evidence.” General Casualty Co.,
165 Wis.2d at 178, 477 N.W.2d at 324.
We may not overturn a commission's order if there is credible evidence
“sufficient to exclude speculation or conjecture ¼.” Id.
at 179, 477 N.W.2d at 324. Also, we
will construe this evidence most favorably to the Commission's findings of
fact. See Cornwell,
175 Wis.2d at 544, 499 N.W.2d at 708.
Upon reviewing the
record, and in construing the evidence in a light most favorable to the
Commission's findings of fact, see id., we conclude that
credible and substantial evidence supported the Commission's finding that
Scott's injury caused an acceleration of a pre-existing degenerative disc
condition “beyond its normal progression” and that fusion surgery was necessary
to correct the problem. The Commission
detailed in its memorandum decision its reasons for concluding that
Dr. Major's medical opinion was more compelling and credible than Dr.
McDevitt's: (1) Scott was asymptomatic prior to his fall and, even during
his treatment with Dr. McDevitt, his condition continued to deteriorate;
(2) Dr. McDevitt released him to work but without the necessary physical
restrictions; and (3) Dr. McDevitt stated that activity could cause his
injury to worsen and therefore Scott's lack of immediate leg pain was not
decisive. The above findings were
credible and substantial evidence for the Commission to rely on in reaching its
decision.
Additionally, while the
Hospital argues that Dr. McDevitt's diagnosis was more reliable than Dr.
Major's, it is the Commission's function to resolve conflicting evidence. See L & H Wrecking Co. v.
LIRC, 114 Wis.2d 504, 509, 399 N.W.2d 344, 347 (Ct. App. 1983). We will not weigh the two physicians'
testimony in this matter, and we cannot substitute our own judgment of
conflicting medical testimony in place of that of the Commission. See General Casualty Co.,
165 Wis.2d at 178, 477 N.W.2d at 324.
Accordingly, we determine that Dr. Major's testimony as to his opinion
of Scott's medical condition was “relevant, credible, probative, and of a
quantum upon which” the Commission could base its opinion. Cornwell, 175 Wis.2d at 544,
499 N.W.2d at 707. As such, the
Commission's order was not based on mere conjecture or speculation; therefore,
we may not overturn it. See
General Casualty, 165 Wis.2d at 179, 477 N.W.2d at 324. Accordingly, we affirm.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.