COURT OF APPEALS DECISION DATED AND RELEASED October 8, 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. 95-2451
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
WADE HAYES,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION
and BRIGGS &
STRATTON CORPORATION,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
LOUISE M. TESMER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Wade Hayes, a former Briggs and Stratton
employee, appeals from the circuit court’s order affirming the Labor and
Industry Review Commission’s conclusion that Hayes's back injury did not arise
from his employment at Briggs and Stratton and did not occur at a time while he
was performing services incidental to his employment. Hayes argues that the administrative law judge and the Commission
acted in excess of their powers when they failed to reconcile inconsistencies
and conflicts in the medical testimony and failed to discredit the opinion of
the employer’s expert because it allegedly lacked a proper factual
foundation. Thus, Hayes argues that
there is no substantial and credible evidence to support the Commission’s
decision as a matter of law. The
circuit court rejected this same argument, and we agree that there was
sufficient evidence to support the Commission’s determination. Accordingly, we affirm.
According to the record,
Hayes began his employment with Briggs and Stratton in January of 1968. Several years prior to that, he suffered a
back injury while playing football in the Army. He underwent surgery for this injury in 1963. As a result of the injury and surgery, he
was awarded a service-related disability rating of 20%.
Hayes testified at the
hearing before the ALJ that he did not have problems with his back while
working on the job until 1985. Hayes
claimed that he suffered a back injury on October 25, 1985, while at work after
doing some bending. No permanent
partial disability was assessed for this injury.
Hayes was transferred to
a different department on January 6, 1986, where he worked until October 16,
1992. Hayes testified that he was
unable to return to work after that date because he was too stiff and
sore. Hayes saw several doctors, one of
which recommended surgery, but Hayes declined.
He has permanent restrictions of no bending or lifting over 20 to 35
pounds. Briggs and Stratton does not
have work available under these restrictions.
Hayes's treating
physicians submitted reports for the administrative hearing stating that the
wear and tear of the lifting and bending of Hayes's job between 1985 and 1992
worsened his pre-existing condition.
Dr. Steven Blatnick reported that Hayes suffered from a traumatic injury
and also from an occupational disease.
Dr. Charles Supapodok reported that Hayes's disability was due to a
traumatic incident as well as to his occupational exposure, and that his 1985
and 1992 injuries accelerated, precipitated, and aggravated his pre-existing
condition.
Briggs and Stratton’s
physician, Dr. David S. Haskell, reported that Hayes had a long history of back
pain dating back to the 1960’s and that the symptoms beginning in October 1992
related solely to pre-existing problems.
Dr. Haskell opined that Hayes sustained no work-related aggravation or
acceleration of his pre-existing
condition.
In addition, a videotape
shown at the hearing indicated that Hayes's job involved minimal bending and
lifting parts that generally weighed under 5 pounds. Both Hayes and an assistant safety manager testified that this
videotape did not accurately show Hayes's job duties.
The ALJ found that the
opinions of Hayes's physicians were based on the assumption that Hayes did
frequent bending and lifting of 20-50 pounds, and did not find that Hayes's
work between 1985 and 1992 required extensive repetitive lifting and
bending. The ALJ accepted the opposing
medical opinion of Dr. Haskell that Hayes’s problems were due to a naturally
degenerating back and not due to an occupational injury, and therefore denied
worker’s compensation benefits.
Hayes petitioned the
Commission for review of the ALJ’s decision, asserting that the ALJ erred in
determining that Hayes did not sustain a new injury on October 16, 1992. After a review of the videotape and other
evidence in the record, the Commission found that, based on Hayes's history of
back complaints, pre-existing condition and Dr. Haskell’s report, a legitimate
doubt existed that Hayes's back problems were caused by his employment. Hayes subsequently brought an action in the
circuit court to review the Commission’s decision. The circuit court affirmed the Commission’s decision because the
Commission’s findings were based on credible evidence. Hayes now brings this appeal.
The issue on appeal is
whether there is substantial and credible evidence to support the Commission’s
findings that Hayes did not suffer a compensable injury while employed at
Briggs and Stratton.
Our review of findings
of fact is governed by statute and is limited in scope. R. T. Madden, Inc. v. DILHR,
43 Wis.2d 528, 536, 169 N.W.2d 73, 76 (1969); § 102.23(6), Stats.
We are to affirm the Commission’s decision if there is any credible
evidence which supports such findings. E.F.
Brewer Co. v. DILHR, 82 Wis.2d 634, 636, 264 N.W.2d 222, 223
(1978). We are required only to find
that the evidence is sufficient to exclude speculation or conjecture. Bumpas v. DILHR, 95 Wis.2d
334, 343, 290 N.W.2d 504, 508 (1980).
Even if we were to conclude that the findings of the Commission were
contrary to the great weight and clear preponderance of the evidence, we may
not reverse on that ground, as we may not substitute our opinion for that of
the Commission. Goranson v. DILHR,
94 Wis.2d 537, 554, 289 N.W.2d 270, 278 (1980); § 102.23(6), Stats.
In order to withstand reversal, “[i]t is not required that the evidence
be subject to no other reasonable, equally plausible interpretations.” Hamilton v. DILHR, 94 Wis.2d
611, 617, 288 N.W.2d 857, 860 (1980).
Whether Hayes sustained
a compensable injury was a question of fact for the Commission to decide. Bumpas, 95 Wis.2d at 342, 290
N.W.2d at 507. In addition, the
credibility and weight of the testimony of medical witnesses is for the
Commission to decide. Semons
Dept. Store v. DILHR, 50 Wis.2d 518, 528-29, 184 N.W.2d 871, 876
(1971). If there are inconsistencies or
conflicts in medical testimony, the Commission, not the reviewing court,
reconciles such inconsistencies or conflicts.
Valadzic v. Briggs and Stratton Corp., 92 Wis.2d 583, 598,
286 N.W.2d 540, 547 (1979). Further,
the Commission has a duty to deny compensation if the evidence is sufficient to
raise a legitimate doubt as to the existence of facts necessary to establish a
claim. Leist v. LIRC, 183
Wis.2d 450, 457, 515 N.W.2d 268, 270 (1994).
In order for the Commission to entertain a legitimate doubt, some
inherent inconsistency or conflict must exist in the testimony. Bumpas, 95 Wis.2d at 344, 290 N.W.2d at 508.
Our review of the record
makes clear that the ALJ’s and the Commission’s decision was based on credible
evidence that is sufficient to exclude speculation or conjecture, even though
the evidence may be subject to another reasonable, equally plausible
interpretation. The decision to deny
benefits was based mainly on expert
medical opinion. The ALJ and the
Commission chose to believe the testimony of Dr. Haskell, and it is the
Commission’s role to determine the weight and credibility of the testimony of
medical witnesses. See Semons,
50 Wis.2d at 528-529, 184 N.W.2d at 876.
Only where the evidence relied upon by the Commission is incredible as a
matter of law may we reverse a finding of the Commission. State ex rel. Harris v. Annuity &
Pension Bd., 87 Wis.2d 646, 659, 275 N.W.2d 668, 675 (1979). Although the expert opinions of Hayes's
treating physicians are inconsistent with the opinion of Dr. Haskell, we do not
find that those opinions render the opinion of Dr. Haskell's opinion inherently
incredible.
Hayes argues that Dr.
Haskell’s opinions must be disregarded as based upon assumed facts that have
not been proven. As the Commission’s
brief properly points out, if Hayes wanted to test the validity of Dr.
Haskell’s opinions, he could have exercised his right to subpoena the doctor
for cross-examination. See Wis. Adm. Code § DWD 80.22(2).
Hayes also argues that
the videotape presented by the employer did not accurately show his job
duties. Both Hayes and an assistant
safety supervisor testified to that effect.
The ALJ, who could observe the demeanor of the witnesses and therefore
was in a good position to judge their credibility, however, did not find that
Hayes's work required extensive lifting and bending. The Commission found nothing to warrant overturning the ALJ’s
credibility determination, and we may not substitute our judgment for that of
the Commission.
In sum, the information
contained in the record, particularly the expert opinion of Dr. Haskell and the
videotape of Hayes's duties, was sufficient to provide credible and substantial
evidence or reasonable inferences therefrom to support the Commission’s
conclusions. Therefore, we affirm the
circuit court's order that upheld the conclusions of the Commission.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.