COURT OF APPEALS DECISION DATED AND RELEASED August 8, 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. 95-0212
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
HARNISCHFEGER
CORPORATION,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION
and STEVEN DZENZEOL,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
JOHN J. DIMOTTO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Harnischfeger Corporation appeals from an order of the
circuit court affirming a decision by the Labor and Industry Review Commission
which awarded worker's compensation benefits to Steven Dzenzeol. The order of the circuit court confirming
the decision of the Commission is affirmed.
Dzenzeol was employed by
Harnischfeger as a milling machine operator.
He had been employed in that capacity since February, 1975. In 1987 and 1988, Dzenzeol began to
experience numbness in his legs. He
received treatment for his problem and lost several weeks of work in 1988. On February 2, 1989, Dzenzeol sustained a
back injury at work while lifting a heavy carton. He immediately experienced pain and left leg numbness. He reported the injury to his employer and
sought treatment from Dr. Dale Bauwens.
X-rays, CT scans and MRI tests were ordered and revealed grade II
degenerative changes of the L5-S1 disc, minimal retrolisthesis at L5-S1 and
posterior osteophytes at the L5-S1 level.
There was no evidence of disc herniation.
On May 10, 1989, Dr.
Bauwens indicated in a report that the work- related injury caused a temporary
aggravation of an underlying degenerative disc disease. Therefore, Dr. Bauwens recommended that
Dzenzeol be on temporary restrictions.
On June 21, 1989, Dr. Bauwens recommended that the restrictions remain
for another two months. In September,
1989, Dr. Bauwens issued a permanent restriction of lifting no more than 20
pounds. In a report dated May 21, 1991,
Dr. Bauwens assigned a 5% disability rating to Dzenzeol, of which 3% was due to
the pre-existing degenerative disc disease and 2% was due to the work-related
injury. On May 31, 1991, Dr. Bauwens assessed additional permanent
restrictions which included only occasional bending, squatting, crawling,
climbing, and reaching; no sitting, standing, and walking for more than two
hours at a time; and, no sitting, standing, and walking for more than four
hours during an eight hour day.
At Harnischfeger's
request, Dzenzeol was examined by Dr. Dennis Brown on August 13, 1992. Dr. Brown also diagnosed low back pain due
to a degenerative disc condition but diagnosed the work-related injury as a
lumbarsacral strain with no indication of the underlying degenerative
disease. He opined that Dzenzeol
reached a healing plateau in September, 1989, and did not need any further
medical treatment. He also opined that
although Dzenzeol did not have a permanent injury, he should restrict himself
to function at a medium work level with no repetitive bending.
Dzenzeol and
Harnischfeger each introduced reports from vocational experts who opined about
Dzenzeol's loss of earning capacity.
Dzenzeol's expert estimated a 65% to 75% loss of earning capacity. Harnischfeger's expert estimated a 45% loss
of earning capacity. The Commission
found Dr. Bauwens's opinions to be more credible than Dr. Brown's but adopted
Harnischfeger's expert determination of a 45% loss of earning capacity.
On appeal, this court
reviews the decision of the administrative agency not that of the circuit
court. Wisconsin Pub. Serv. Corp.
v. Public Serv. Comm., 156 Wis.2d 611, 616, 457 N.W.2d 502, 504 (Ct.
App. 1990). The determination of the
nature and extent of permanent partial disability attributable to loss of
earning capacity are questions of fact, and the Commission's findings in this
regard are conclusive if supported by credible and substantial evidence. Manitowoc County v. DILHR, 88
Wis.2d 430, 437, 276 N.W.2d 755, 758 (1979); see Nottelson v.
DILHR, 94 Wis.2d 106, 114, 287 N.W.2d 763, 767 (1980). The drawing of one of several reasonable
inferences from undisputed facts also constitutes fact finding. Vande
Zande v. DILHR, 70 Wis.2d 1086, 1094, 236 N.W.2d 255, 259 (1975). Any legal conclusion drawn by the Commission
from its findings of fact, however, is a question of law subject to independent
judicial review. Nottelson,
94 Wis.2d at 114-115, 287 N.W.2d at 767.
Thus, in examining the Commission's findings here, this court's role is
to review the record for credible and substantial evidence that supports the
Commission's determination rather than to weigh opposing evidence. Vande Zande, 70 Wis.2d at
1097, 236 N.W.2d at 260.
Under Lewellyn v.
DILHR, 38 Wis.2d 43, 155 N.W.2d 678 (1968), an applicant for
compensation benefits must establish the nature and existence of a pre‑existing
condition of a progressively deteriorating nature that the work-related
incident is claimed to have precipitated, aggravated, and accelerated beyond
normal progression. Harnischfeger
insists that there is no medical testimony that the low back sprain precipitated,
aggravated, and accelerated beyond normal progression a pre‑existing
degenerative disc disease. Therefore,
according to Harnischfeger, the evidence is insufficient to hold it liable for
a benefits award of partial disability in favor of Dzenzeol. We disagree.
The evidence in the
record and applicable law amply support the Commission's determination. We first observe that the Commission chose
to discount the significance of the reports prepared by Dr. Brown, the
physician hired by Harnischfeger to examine Dzenzeol. As the Commission is the judge of the credibility of the
witnesses, we cannot say that its rejection of Dr. Brown's findings was in
error. See Bucyrus-Erie
Co. v. DILHR, 90 Wis.2d 408, 418, 280 N.W.2d 142, 147 (1979). It is reasonable to infer from Dr. Bauwens's
reports and letters that the work-related injury precipitated, aggravated, and
accelerated beyond normal progression Dzenzeol's underlying degenerative
condition. A letter by Dr. Bauwens on
April 19, 1989, to Wausau Insurance Company states: “My impression is that of pre‑existent underlying
degenerative disc disease that was greatly exacerbated with a back
sprain.” On May 18, 1989, Dr. Bauwens
reported to Harnischfeger: “I think
that his lifting injury at work has caused temporary aggravation of his
underlying degenerative disc disease.
He needs to be on temporary restrictions. These may be permanent in the future, only time will tell.” In another report to Harnischfeger dated
June 29, 1989, Dr. Bauwens wrote:
“Follow-up for back pain secondary to degenerative disc disease with
work exacerbation.... There is a
distinct possibility that we may recommend permanent lifting restrictions to
avoid exacerbation or recurrence of his problems.” Further, on May 21, 1991, Dr. Bauwens reported to Harnischfeger:
Final
diagnosis is that Steven has degenerative disc disease. He has suffered some permanent impairment as
a result of the sprain that was an aggravation of his pre‑existent
condition. By way of estimation of
permanent impairment, patient has 5% permanent impairment of his lower
back. Of this, I would estimate 3% was
pre-existent and 2% to be exacerbation from his work related lumbar sprain.
Finally,
on July 29, 1992, Dr. Bauwens replied to Harnischfeger's attorney's inquiry
that he placed restrictions on Dzenzeol “because he has degenerative disc
disease and I wished to avoid the potential for new injury.”
The Commission
interpreted the July 29, 1992, letter as referring to Dzenzeol's condition at
the time the restrictions were imposed.
In other words, according to the Commission, Dr. Bauwens was
referring to the degenerative condition as aggravated, accelerated, or
precipitated beyond its normal progression by the work-related injury. The Commission did not construe the
statement to refer to only the pre-existing portion of Dzenzeol's degenerative
disease. Similarly, the Commission
determined that the June 29, 1989, note meant exacerbation or recurrence of
Dzenzeol's problems after the February, 1989, work-related injury caused
additional permanent disability, not his pre-existing condition unaffected by
the work-related injury. Further, the
Commission determined the fact that Dzenzeol was able to work as a millworker
without restriction before the February, 1989 work-related injury suggested
that all or nearly all of his restrictions were attributable to the permanent
change. Finally, the Commission
determined that, “Dr. Bauwens finds 3% permanent partial disability due to the
pre-existing degenerative disc disease.”
Harnischfeger argues
that reversal is required because Dr. Bauwens did not use the words
“precipitates, aggravates[,] and accelerates beyond normal progression.” We disagree. No magic words are required if the Commission can fairly and
reasonably conclude from the doctor's reports that the underlying degenerative
condition was precipitated, aggravated, and accelerated beyond its normal
progression by the work-related injury.
This is true even when the physician, as was the case here, did not
check either of the “yes” or “no” boxes on the WC-16B forms asking whether the
work-related injury caused an aggravation of the underlying injury beyond its
normal course. As noted, Dr. Bauwens
found “permanent impairment as a result of the sprain that was an aggravation
of his pre-existent condition.” Once
the work-related accident occurred on February 2, 1989, Dr. Bauwens opined
that of the 5% disability, 3% was from the existing condition and 2% was from
the accident. It was reasonable for the
Commission to have concluded from Dr. Bauwens's letters and reports that the
work-related injury was such that it precipitated, aggravated, and accelerated
Dzenzeol's underlying degenerative condition beyond normal progression.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.