District IV
January 17, 2013
To:
Hon. Patrick Taggart
Circuit Court Judge
Sauk Co. Courthouse
515 Oak Street
Baraboo, WI 53913-0449
Loretta Roberts
Clerk of Circuit Court
Juneau County Justice Center
200 Oak St., PO Box 246
Mauston, WI 53948
Sarah Germonprez
Bell, Moore & Richter SC
44 E. Mifflin Street
P.O. Box 1807
Madison, WI 53701-1807
Richard B. Moriarty
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
John D. Neal
Stafford, Neal & Soule, S.C.
6250 Nesbitt Road, Suite 500
Madison, WI 53719
Timothy J. Yanacheck
Bell, Moore & Richter, S.C.
P. O. Box 1807
Madison, WI 53701-1807
You are hereby notified that the Court has entered the following opinion and order:
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2011AP2947 |
Juneau County v. Labor and Industry Review Commission (L.C. # 2011CV156) |
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Before Sherman, Blanchard and Kloppenburg, JJ.
Juneau County appeals a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC), which upheld a worker’s compensation decision in favor of Timothy Andres. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We summarily affirm.
Andres sustained a knee injury while at work for his employer, Juneau County. The County does not dispute that Andres’ injury and the meniscectomy surgery that followed were work-related and covered by the Worker’s Compensation Act. On appeal, the County challenges that portion of LIRC’s decision that affirmed and adopted the finding of an administrative law judge (ALJ) that an infection suffered by Andres following surgery was work-related.
In reviewing a circuit court order affirming a decision of LIRC, our review is limited in scope. L&H Wrecking Co., Inc. v. LIRC, 114 Wis. 2d 504, 507-08, 339 N.W.2d 344 (Ct. App. 1983). We review the decision of LIRC, and not that of the circuit court. Jarrett v. LIRC, 2000 WI App 46, ¶7, 233 Wis. 2d 174, 607 N.W.2d 326. We are to affirm LIRC’s findings if there is any credible evidence in the record to support those findings. L&H Wrecking, 114 Wis. 2d at 508.
The County argues that LIRC was required to deny
Andres’ claims because there is legitimate doubt as to the cause of Andres’
infection. In support of its argument, the
County references notes in two of Andres’ medical reports indicating that
Andres told his physician he went into a hot tub about a week after his surgery
and that, on another occasion, he expressed to a different physician his desire
to use a hot tub, contrary to his physician’s advice. The County contrasts these notes with Andres’
own testimony at his worker’s compensation hearing before the ALJ, at which
Andres denied having used a hot tub after his surgery. The County argues that the inconsistencies
between the medical reports and Andres’ testimony create a “legitimate doubt”
as to the cause of the infection, citing Kowalchuk v. LIRC, 2000
WI App 85, ¶8, 234 Wis. 2d 203, 610 N.W.2d 122.
We reject the County’s argument that the
inconsistencies between the medical reports and Andres’ testimony create a
legitimate doubt. The County distorts
and takes out of context this court’s discussion in Kowalchuk, 234
Wis. 2d 203, ¶8, regarding
what constitutes a “legitimate doubt” as to the existence of facts essential to
establish a worker’s compensation claim.
The supreme court rejected an argument similar to the County’s in Employers
Mut. Liab. Ins. Co. v. DILHR, 62 Wis. 2d 327, 332, 214 N.W.2d 587
(1974). In that case, the employer
argued that disputed testimony revealed a “legitimate doubt.” Id.
The supreme court rejected this argument, concluding that the disputed
testimony raised a question of credibility, not a “legitimate doubt.” Id.
The court stated that “‘[w]here the commission … has not evinced the
legitimate doubt, it is not to be superimposed upon it by a reviewing court.’” Id.
In its decision, LIRC noted that the ALJ, who had been
in the position of observing Andres’ demeanor at the hearing, found Andres’
testimony to be credible, and LIRC found nothing in its own independent review
of the record to warrant overturning that credibility determination. LIRC also credited the opinion of one of
Andres’ physicians, Dr. Perpich, who opined that Andres’ knee infection and
related problems were a direct result of his work injury and subsequent
surgery. “[T]he weight and credibility
to be accorded to both witnesses and medical evidence are functions left to the
commission.” Lange v. LIRC, 215 Wis. 2d
561, 567, 573 N.W.2d 856 (Ct. App. 1997).
We will not now second-guess those determinations on appeal.
IT IS ORDERED that the order is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals