|
COURT OF
APPEALS DECISION DATED AND
RELEASED April
4, 1996 |
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. 95-1680
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
JERRY
L. MEANA,
Plaintiff-Respondent-Cross Appellant.
v.
WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION,
Defendant,
MINNESOTA MINING AND MANUFACTURING COMPANY
AND OLD REPUBLIC INSURANCE COMPANY,
Defendants-Appellants-Cross Respondents.
APPEAL
from an order of the circuit court for Dane County: JACK AULIK, Judge. Reversed
and cause remanded.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
EICH,
C.J. This is a worker's compensation
case in which the employer, Minnesota Mining & Manufacturing Company (3M),
and its insurer, Old Republic Insurance Company, appeal from an order reversing
the Labor and Industry Review Commission's dismissal of Jerry L. Meana's
compensation claim. Meana suffered a
heart attack while employed by 3M, and he claims the heart attack and his
current condition were caused by that employment.
The
issue is whether there is sufficient evidence in the record to support the
commission's determination. We believe
there is, and we therefore reverse the circuit court's order and remand with
directions to enter an order affirming the commission's decision.
Except
for the medical testimony, which we discuss at length below, the facts are not
in serious dispute. Starting in 1969
Meana worked at a variety of positions in 3M's manufacturing plant. In 1987 he began working as a "maker
operator" and in that capacity was responsible for operation of a
production line that manufactured material for scouring pads. When the line broke down, as it apparently
did with some regularity, Meana was responsible for starting it up again.
Typically,
Meana would work a twelve-hour shift (from 6:00 p.m. to 6:00 a.m.) two or three
days in a row and then take two days off.
In late July and early August 1990, his work schedule was unusually
heavy, requiring him to work twelve-hour shifts for six consecutive days. When he arrived home at the end of the sixth
day, he began to experience chest pains and drove to the hospital, where he
suffered a heart attack that evening.
The following day he underwent emergency heart catheterization and
angioplasty procedures and continued to have heart problems after his discharge
a week later.
At
the hearing before the Department of Industry, Labor and Human Relations on
Meana's claim for worker's compensation benefits, he testified that his job had
for some time interfered with his eating and sleeping habits, and that he
considered his work to be generally stressful because of the
"pressures" he would feel in trying to rectify frequent machinery
breakdowns on the production line. He
said that the "extra" shifts he worked immediately preceding his
heart attack were particularly stressful because the machinery had broken down
more often than usual during that period.
The
medical evidence at the hearing consisted of written reports from Meana's
treating cardiologist, Dr. Gordon Johnson, and from a cardiologist retained by
3M, Dr. Kenneth Bortin. Meana's medical
records showed a family history of heart disease and a pre-existing
"triple vessel coronary artery disease," which was exacerbated by
Meana's history of cigarette smoking, high blood pressure and
hypercholesterolemia.
Despite
these "risk factors," Dr. Johnson believed that Meana's heart attack
was directly related to the stress involved in his heavy work schedule in July
and August. Dr. Bortin, on the other
hand, concluded that Meana's existing heart disease and blood-pressure and
cholesterol problems, coupled with his cigarette smoking and family history,
placed him in a heart-attack-prone position, and that it was these factors, and
not job stress, that led to the attack.
Dr.
Bortin's report noted that the job description supplied to him did not give him
a sense of the degree of stress associated with Meana's ongoing job duties, and
he assumed from the absence of any such information that, after twenty-one
years on the job, Meana was, in general, "relatively comfortable" in
his work. According to Dr. Bortin, even considering the stress associated with
Meana's unusually heavy work schedule in July and August, that stress did not,
in light of the other factors, predispose him to a heart attack.
On
the basis of that evidence, the department's administrative law judge (ALJ)
determined that Meana had suffered an "occupational disease ... arising
out of and occurring while performing services growing out of and incidental to
his employment" with 3M, and concluded that Meana's heart attack had left
him with an eighty-percent permanent partial disability. In so ruling, the ALJ rejected Dr. Bortin's
testimony as incredible because his statement that Meana was
"comfortable" in his job, in the ALJ's view, contradicted Meana's own
testimony that he felt stress and pressure in his job. The ALJ went on to "adopt" Dr.
Johnson's report and concluded that Meana's heart attack was "direct[ly]
cause[d]" by job-related stress.
On
appeal, the commission reversed the ALJ's decision, concluding, among other
things, that: (1) while Meana testified about the stress connected with his
job, the only stress he discussed was that related to production line
breakdowns, particularly one occurring just prior to his attack; (2) Dr.
Johnson's records and report discussed only the stress accompanying Meana's
increased shifts in the ten days preceding the attack; and (3) in view of the
nature of his job duties and the length of time Meana had been working long
shifts, it could be inferred "that the degree of stress he was subject to
was not so severe as to have caused or materially contributed to his
preexisting heart disease."[1]
"Of
even greater importance," said the commission, "is the fact that
[Meana] had documented hypercholesterolemia, [a] history of cigarette use and a
family history of heart disease."
It concluded:
The reasonable inference, in accordance with Dr.
Bortin's opinion, is that these well-known risk factors resulted in the
atherosclerotic heart disease which caused [Meana's heart attack]. The commission is left with a legitimate
doubt that the stress which [Meana] experienced at work was a material
contributory factor in either his atherosclerotic heart disease or his [heart
attack].
In a note at the end of its decision, the commission
said:
[We] consulted with the administrative law judge, who
indicated that he found [Meana] to have been a credible witness. As noted in the above decision, [we]
inferred from the evidence ... that [Meana] had not demonstrated that he was
subject to stress so severe as to have been a material contributory factor in
the development of his heart disease or his [heart attack. We] found Dr. Bortin's opinion credible
based on the substantial predisposing risk factors for heart disease and [heart
attack].
As
indicated, the circuit court reversed, agreeing with the ALJ that Dr. Bortin's
opinion was incredible as a matter of law because it "rests on assumptions
as to Meana's comfort with his job and ... which were substantially
contradicted by Meana's credited testimony." Then, ruling that Dr. Bortin's testimony "must be
disregarded" and, further, that Dr. Johnson's testimony "may, but
need not, have been credited," the court vacated the commission's order
and remanded the case to give both parties "an opportunity to shore up the
opinions of their medical experts."
The 3M Company and its insurer appeal.[2]
In
an appeal from a circuit court decision in an administrative review case, we
review the decision of the agency, not the court. Barnes v. DNR, 178 Wis.2d 290, 302, 506 N.W.2d 155,
160 (Ct. App. 1993), aff'd, 184 Wis.2d 645, 516 N.W.2d 730 (1994). And that review is guided by several
well-established principles.
First,
whether an employee has sustained a disabling occupational disease arising out
of his or her employment is a question of fact to be determined by the
commission. General Casualty Co.
of Wisconsin v. LIRC, 165 Wis.2d 174, 178, 477 N.W.2d 322, 324 (Ct.
App. 1991). The commission's factual
findings are conclusive if they are supported by credible and substantial
evidence. Id. "Indeed, as long as there is credible
evidence to support the findings, we will uphold them even if they are against
the great weight and clear preponderance of the evidence." Id. (citing Goranson v.
DILHR, 94 Wis.2d 537, 554, 289 N.W.2d 270, 278 (1980)). Thus, "[w]here ... the credible
evidence supporting the commission's decision is sufficient to exclude
speculation or conjecture, we may not overturn [that decision]." Id. at 179, 477 N.W.2d at 324.
The
credibility of the witnesses and the persuasiveness of their testimony are for
the commission, not the courts, to determine.
L & H Wrecking Co. v. LIRC, 114 Wis.2d 504, 509, 339
N.W.2d 344, 347 (Ct. App. 1983). In
applying the credible evidence test to findings of the [agency], a reviewing
court does not weigh conflicting evidence to determine which should be
believed. If there is credible evidence
to sustain the finding, irrespective of whether there is evidence that might
lead to the opposite conclusion, a court must affirm.
Id.
Finally,
the commission is not required to justify its decision; the burden is on the
challenger to show that the decision should be overturned. Racine Education Ass'n v. Commissioner
of Ins., 158 Wis.2d 175, 182, 462 N.W.2d 239, 242 (Ct. App. 1990). It follows that our role on appeal is to
review the record for credible and substantial evidence supporting the
commission's decision, rather than to search for or weigh opposing
evidence. Kimberly-Clark Corp. v.
LIRC, 138 Wis.2d 58, 67, 405 N.W.2d 684, 688 (Ct. App. 1987).
As
we have noted above, the commission determined that Meana had not carried his
burden of establishing that his heart attack was caused by job-related factors
because, after reviewing the record of the hearing, the commission found itself
"left with a legitimate doubt" that, given all of the other
"risk factors" present in the case, Meana's heart attack was the
result of job stress, as he claimed.
And where the evidence before the commission is such as to raise in the
minds of the commissioners "a legitimate doubt ... regarding the facts
necessary to establish a claim, the commission is required to reject the
petition for benefits." Hakes
v. LIRC, 187 Wis.2d 582, 590, 523 N.W.2d 155, 158 (Ct. App. 1994)
(citation omitted).
Correctly
defining "legitimate doubt" as not just "any doubt that the
[commission] chooses to entertain," but one arising from "`some
inherent inconsistency' .. or conflict in the testimony," Bumpas v.
DILHR, 95 Wis.2d 334, 344, 290 N.W.2d 504, 508 (1980) (quoted source
omitted), Meana argues that the commission could not have such a doubt in this
case because: (1) Meana's testimony about his job stress was credible; (2) Dr.
Johnson's testimony that job stress caused the heart attack was credible; and
(3) Dr. Bortin's testimony that the attack was caused not by Meana's job but by
several unrelated cardiac risk factors was incredible.
It
is true, as Meana asserts, that he testified that he felt pressure in his job,
had experienced stress at work in the days preceding his heart attack, and was
physically exhausted from working a series of long shifts at that time. He also
testified that he felt "pressure" on the job in general. The commission did not discount Meana's
testimony. Assuming it to be credible
and weighing it together with the other evidence, however, the commission found
that that stress "was not so severe as to have caused or materially
contributed to his pre-existing heart disease."
As
for Dr. Johnson's testimony, his first report documented Meana's history of
cigarette use and pre-existing "triple vessel coronary artery
disease,"[3] and
concluded generally as follows:
It is my
impression, based on personal observation, that when a patient is subjected to
marked stress, whether emotional or physical[,] which involves a concomitant
significant increase in heart rate and blood pressure, that stress is a major
probable cause of atherosclerotic plaque rupture in a coronary vessel with
subsequent spasm and clot formation and occlusion of the vessel causing the
patient to have a myocardial infarction.
The medical literature has not documented this well because it is difficult
to have treatment and control groups of patients.
Approximately one month later, Dr. Johnson stated in a
letter to Meana's attorney:
It is my opinion,
to a reasonable degree of medical probability, that Mr. Meana sustained an
acute ischemic event with atherosclerotic plaque rupture and subsequent
occlusion with eventual myocardial infarction directly related to his
preceding heavy work schedule and its related stress as reported to me by
the patient.
(Emphasis added.)
Like
Dr. Johnson, Dr. Bortin began his report by reciting Meana's
"long-standing" history of smoking, high cholesterol, hypertension
and family heart problems, concluding that "[i]t was these risk factors
rather than the stressful working environment that predisposed Mr. Meana to development
of coronary atherosclerosis."[4] Dr. Bortin went on to discuss Meana's job:
The job
description as supplied to me did not give me a true sense of the degree of
stress associated with his type of work.
I would assume that after twenty-one years at the same job, that he was
relatively comfortable performing his tasks. There was[,] though[,] a change in
his working schedule with six consecutive twelve hour shifts preceded and
followed by a twenty-four hour rest period.... [I]t will be difficult to prove
that the stress associated with the change in his work schedule was the direct
cause of his acute myocardial infarction.
Other than the number of consecutive ... shifts worked, no specific
aberrations in the working environment that might affect his heart rate or
blood pressure were documented.
As
the commission correctly notes in its decision, Dr. Johnson's two reports make
no reference to any ongoing job stress in Meana's employment at 3M; and his
conclusion that Meana's heart attack was job-related refers only to the stress
"related to his preceding heavy work schedule"--that is, his unusual
six-day stretch of twelve-hour days immediately preceding the attack.
Dr.
Bortin's report, reaching the opposite conclusion with respect to the role
played by job stress in Meana's heart attack, was based on the same
considerations: he concluded that the attack resulted from Meana's existing
(atherosclerotic) coronary disease, and that it was Meana's other risk factors,
not the "stress associated with the change in his work schedule"
requiring him to work six successive twelve-hour shifts, that caused the
disease and the attack.
As
a result, Meana's argument--which the trial court adopted--that Dr. Bortin's
opinion should be disregarded because it assumed a lack of stress over the
period of Meana's employment at 3M--is unavailing. The testimony of his own physician--which he relies on as meeting
his burden to prove his heart attack was caused by job-related stress--is based
solely on Meana's heavy work schedule in the days immediately preceding the
attack. He presented no medical
evidence that, whatever stress he may have felt in his job over time, stress
either caused or aggravated his pre-existing coronary heart disease. And whatever assumptions Dr. Bortin made or
did not make about the existence of long-term job stress, he based his opinion
on the stress Meana experienced immediately prior to his hospitalization--just
as Dr. Johnson did. Dr. Bortin
concluded that that stress was far outweighed by Meana's other "risk
factors" in causing the condition of which he complains.
We
are left with a simple conflict in the opinions of the two physicians, and it
is well established that the commission, not the reviewing court, resolves
conflicting medical testimony in worker's compensation proceedings. "The commission's finding on disputed
medical testimony is conclusive. Where
there are inconsistencies or conflicts in medical testimony, the [agency], not
the court, reconciles the inconsistencies and conflicts." Valadzic
v. Briggs & Stratton Corp., 92 Wis.2d 583, 598, 286 N.W.2d 540, 547
(1979).[5] On this record, the commission could
properly resolve that conflict in favor of the conclusions stated in Dr.
Bortin's report, and those conclusions plainly justify the commission's
"legitimate doubt that the stress which [Meana] experienced at work was a
material contributory factor" in causing the condition upon which his
compensation claim is based.
We
therefore reverse the order of the circuit court and remand with directions to
enter an order affirming the commission's order dismissing Meana's claim.
By
the Court.—Order reversed and
cause remanded with directions.
Not
recommended for publication in the official reports.
[1] The commission also noted that, immediately
preceding the string of twelve-hour shifts, Meana had had ten consecutive days
off.
[2] Because we reverse the circuit court and
affirm the commission's decision, we need not consider Meana's cross-appeal in
which he challenges the court's action in remanding the case to the commission
for the taking of additional evidence.
[4] In this regard, Dr. Bortin noted that the medical
literature "has [n]ever documented a stressful working environment as an
independent risk factor for atherosclerotic cardiovascular disease," but
that "[i]t has been concluded by most researchers that stress is an
indirect rather than direct risk factor for coronary
atherosclerosis."
[5] Professor Larsen puts it this way: "In
summing up the problem of conflicting medical testimony, one may recall
Alexander Pope's famous line in which he asks: `Who shall decide when doctors
disagree?' In work[ers] compensation the answer is easy: The Commission
decides." 3 Larsen, The Law of
Workmen's Compensation, sec. 80.24(c), p. 15-747-48.