COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER
7, 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. 95-1023-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
CLARK
ANDERSON,
Plaintiff-Appellant,
v.
STATE
OF WISCONSIN,
LABOR
AND INDUSTRY
REVIEW
COMMISSION,
Defendant-Respondent,
QUAD
GRAPHICS, INC. and
HOME
INSURANCE COMPANY,
Defendants.
APPEAL
from an order of the circuit court for Milwaukee County: MICHAEL P. SULLIVAN, Judge. Reversed and cause remanded for further
proceedings consistent with this opinion.
Before
Wedemeyer, P.J., Sullivan and Fine, JJ.
PER
CURIAM. Clark Anderson appeals from
the circuit court's order affirming a decision of the Labor and Industry Review
Commission. The issue is whether there is
credible and substantial evidence to support the commission's finding that
Anderson's jaw problems were not causally related to his compensable work
injury. Pursuant to this court's order
dated May 10, 1995, this case was submitted to the court on the expedited
appeals calendar. See Rule 809.17, Stats. Upon review of
the briefs and the record, we reverse the commission's decision.[1]
Clark
Anderson worked as a machine operator and packer for Quad Graphics. He injured his back at work on March 5,
1991. He received temporary total
disability from March 5, 1991, until May 4, 1992. He received temporary partial disability from June 21, 1992,
until October 4, 1992. At that point,
he received a permanent partial disability rating of fifteen percent.
On
April 23 and May 3, 1991, Dr. James Stoll performed surgeries on Anderson's back. During each surgery, Anderson was given
anesthesia through a ventilation tube in his mouth. On October 22, 1991, Dr. Howard An performed a third surgery on
Anderson. Like before, Anderson was
given anesthesia through a ventilation tube placed in his mouth. After complaining of jaw pain, Anderson was
referred by Dr. An to Dr. Donald Czaplicki, a dentist. Dr. Czaplicki diagnosed Anderson with a
temporomandibular joint dysfunction (TMJ).
Anderson
filed for worker's compensation benefits based on the problems with his
jaw. He contended that the TMJ problem
was caused or aggravated by the surgeries he had. At the hearing on the application, Anderson testified that when
he awoke after each surgery, his jaws were stiff and caused him pain. He testified that he told the doctor and
nurses about the pain, but was told it was "normal." He testified that he also had severe and
massive headaches after the surgeries.
Finally, he testified that, prior to the surgeries, he never had any
injury to his mouth, and did not have any pain or clicking problems with his
jaw.
In
support of his claim, Anderson submitted a WC-16-B form from Dr. Czaplicki
which was received into evidence. One
of the questions on the form asked whether the accident or work exposure directly
caused the injury. Dr. Czaplicki
replied "yes," and wrote "[t]he TMJ injury may have been a
result of his work related injury."
Another question on the form asked:
"If not directly, is it probable that the accident or work exposure
... caused the disability by precipitation, aggravation and acceleration of a
pre-existing condition beyond normal progression?" Dr. Czaplicki responded
"yes."
A
letter from Dr. An was also received into evidence. In the letter, Dr. An explained that because he was not an expert
in TMJ, he referred Anderson to Dr. Czaplicki.
Dr. An further stated that he did not think that the TMJ resulted from
the anesthesiology because that was not common.
After
considering the testimony and other evidence, the hearing examiner found that
Dr. Czaplicki's opinions were probative and consistent with Anderson's
testimony. The hearing examiner
concluded that it was "likely that [Anderson's] jaw problem [was] an after
effect of the treatment and the pain."
On
appeal, however, the commission reversed the hearing examiner's decision and
denied Anderson compensation. The
commission concluded that Anderson had not provided medical support for his
claim, as explained more fully below.
The circuit court affirmed the commission's decision.
When
a party seeks review of the commission's decision, our function is to review
the record to determine whether there is credible and substantial evidence to
support the commission's determination.
Kimberly-Clark Corp. v. LIRC, 138 Wis.2d 58, 67, 405
N.W.2d 684, 688 (Ct. App. 1987). We do
not weigh the opposing evidence, and we will reverse the commission's order or
award only if it "depends on any material and controverted finding of fact
that is not support by credible and substantial evidence." Section 102.23(6), Stats.
"Substantial evidence is evidence that is relevant, credible,
probative, and of a quantum upon which a reasonable fact finder could base a
conclusion. Facts of mere conjecture or
a mere scintilla of evidence are not enough to support LIRC's
findings." Cornwall
Personnel Assn. v. LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705, 707 (Ct.
App. 1993) (citation omitted).
As
a preliminary matter, we conclude that the commission erred by relying on
materials that had not been admitted into evidence. In reaching its conclusion that Anderson was not entitled to
compensation, the commission relied on a letter by Dr. Stoll that Anderson did
not complain of jaw problems following the surgeries. The commission stated:
Further, Dr.
Stoll, one of the applicant's surgeons, indicated that the applicant did not
complain during his surgical recovery period of any jaw problems following his
back surgery. Dr. Stoll stated that in
fact the applicant was fairly articulate after surgery and spent a great deal
of time harassing and haranguing the nursing staff.
Dr.
Stoll's letter, however, was not received into evidence at the hearing. The commission exceeded its authority in
relying on the letter because it had not been received into evidence. California Packing Co. v. Indus.
Comm'n, 270 Wis. 72, 76, 70 N.W.2d 200, 202 (1955) (materials
which have not been put into evidence may not be relied upon to support a
decision).
Without
the Stoll letter, the commission's decision is not supported by credible and
substantial evidence. The commission
relied on Dr. An's letter in which he stated that he did not believe the TMJ
was caused by the surgeries. However,
Dr. An specifically stated in the letter that he was not an expert of TMJ and
that he would defer opinions to Dr. Czaplicki.
Dr. An's letter stated:
I am not an expert of TMJ condition and this is the
reason why I referred Mr. Anderson to Dr. Czaplicki. I believe that TMJ has not resulted from anesthesological
procedure during his surgery, since this is a very uncommon episode after
anesthesia intubation. However, I an
not an expert of TMJ condition, and I will refer any opinions to Dr. Czaplicki.
(Emphasis added).
Dr. An's failure to opine that Anderson's surgeries
caused his TMJ's problem is not evidence "of a quantum upon which a
reasonable fact finder could base a conclusion" because Dr. An
specifically stated that he was not an expert in TMJ and was not competent to
give an opinion. See Cornwall
Personnel Ass'n, 175 Wis.2d at 544, 499 N.W.2d at 707.
The
commission discounted the evidence submitted by Dr. Czaplicki that the TMJ was
a result of the work injury because the commission concluded that Dr. Czaplicki
was "inconsistent and equivocal."
The commission reached this conclusion based on Dr. Czaplicki's
responses to questions 11 and 12 on the WC-16-B form. Question 11 referred to direct causation and question 12 referred
to aggravation beyond normal progression.
We
conclude that it was not inconsistent for Dr. Czaplicki to state that the TMJ
was both directly caused by the work injury and that it was aggravated beyond
normal progression by the work injury.
The surgery may have triggered a condition to which Anderson was predisposed,
thus both directly causing the condition and aggravating it beyond normal
progression. It was unreasonable for
the commission to disregard Dr. Czaplicki's report as inconsistent based on
these answers.
According
to the uncontroverted evidence -- Dr. Czaplicki's report and Anderson's testimony
-- Anderson's TMJ problem resulted from the treatments he received for his back
injury. Dr. Czaplicki was the only
medical professional to submit evidence who was an expert on the TMJ condition
and it was his opinion that Anderson's problem was caused by or aggravated by
his back surgeries. The commission's
conclusion that Anderson failed "to provide medical support to establish
that his jaw problems were related to his back surgeries [or] to the treatments
required to cure and relieve him from his work-related back injury" is not
supported by credible and substantial evidence. Accordingly, we reverse.
By
the Court.--Order reversed and
cause remanded for further proceedings consistent with this opinion.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.