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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER
19, 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. 95-2026-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
RAYMOND
LUDWIKOWSKI,
Plaintiff-Respondent,
v.
LABOR
& INDUSTRY REVIEW COMMISSION,
Defendant-Co-Appellant,
IRECO
AND CIGNA INSURANCE COMPANY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Douglas County: JOSEPH A. McDONALD, Judge. Reversed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. The Labor & Industry
Review Commission and Ireco and Cigna Insurance Company appeal a judgment
overturning LIRC's decision that Raymond Ludwikowski's claim for loss of
earning capacity is premature.[1] The trial court concluded that LIRC based
its decision on speculative evidence.
Because we conclude that credible and substantial evidence supports
LIRC's decision, we reverse the trial court's judgment and reinstate the LIRC
decision.
An
administrative law judge awarded Ludwikowski permanent total disability
benefits based on reports and opinions that he suffered injuries resulting in a
loss of earning capacity. LIRC modified
the ALJ's decision, concluding that Ludwikowski's claim for loss of earning
capacity was premature. LIRC relied on
reports from Dr. William Fleeson and vocational expert Michael Guckenberg. LIRC found the medical evidence submitted by
Dr. Fleeson to be more credible than that offered by Ludwikowski's treating
physician, Dr. W. S. Pollard. LIRC also
found that Ludwikowski's vocational experts did not adequately address the
possibility that Ludwikowski could perform work under the restrictions
suggested by Dr. Fleeson.
Ludwikowski
has not met his burden of proving his claim for loss of earning capacity. The burden is on Ludwikowski to establish
the essential elements of his claim, and if the evidence presented raises a
legitimate doubt as to the existence of facts necessary to establish the claim,
LIRC has the duty to deny the claim. Bumpas
v. DILHR, 95 Wis.2d 334, 342-43, 290 N.W.2d 504, 507-08 (1980). There is evidence to support LIRC's
conclusion that Ludwikowski failed to establish a permanent total disability
beyond legitimate doubt. LIRC could
reasonably believe Ludwikowski had not exhausted his employment or retraining
options for someone with his limitations.
It is LIRC's function to decide the significance of Ludwikowski quitting
his efforts toward job placement and retraining. LIRC reasonably concluded that the claim was premature and that
it was appropriate to postpone any determination of lost earning capacity until
retraining is further explored.
The
trial court erroneously determined that LIRC, in relying on Dr. Fleeson's
report, based its decision on speculative evidence. While Dr. Fleeson's report states that he believes he can predict
the outcome of a functional capacities assessment and he wonders if an MRI
would show persistent disc and/or epidural fibrosis, his recommendations were
not based on speculation. His
examination led him to question whether Ludwikowski's self-reported limitations
reflected a valid representation of his true capacities. Because Ludwikowski resisted undergoing the
functional capacities analysis and no MRI had been performed, Dr. Fleeson's
report is most fairly characterized as a statement that he is skeptical of
Ludwikowski's self-reported symptoms and limitations and that he believes that
further testing is necessary before a final conclusion can be reached. Dr. Fleeson's report supports LIRC's
determination that Ludwikowski had not established his claim for loss of earning
capacity beyond legitimate doubt because, in the absence of these evaluations,
his claim was premature.
Ludwikowski
argues that LIRC was required to discuss the credibility of witnesses with the
ALJ before it reversed the ALJ's decision.
Even if LIRC's decision can be fairly described as a reversal, it was
not required to consult with the ALJ because the demeanor and credibility of
witnesses was not involved in its decision.
See City of Appleton v. DILHR, 67 Wis.2d 162, 170,
226 N.W.2d 497, 501 (1975). LIRC did
not rely on the testimony of the medical witnesses, but rather on reports
submitted by them. While the vocational
experts testified, LIRC's criticism of Ludwikowski's witnesses was not based on
their demeanor or believability, but rather on LIRC's view that their reports
were incomplete. No conference with the
ALJ was necessary under these circumstances.
Ludwikowski
also contends that his medical and vocational expert witnesses were more
credible than his opponents'. The role
of this court is limited to reviewing the record to locate credible and
substantial evidence that supports LIRC's determination, rather than weighing
the evidence opposed to it. VandeZande
v. DILHR, 70 Wis.2d 1086, 1097, 236 N.W.2d 255, 260 (1975). LIRC's findings of fact are conclusive if
supported by credible and substantial evidence. Bumpas, 95 Wis.2d at 342, 290 N.W.2d at 508. We have concluded they are supported by the
requisite credible and substantial evidence.
Section 102.23(6), Stats.,
prohibits the courts from substituting their judgment as to the credibility of
witnesses or the weight of the evidence.
By
the Court.—Judgment reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.