|
COURT OF APPEALS DECISION DATED AND RELEASED February 1, 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. 95-0171
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
LEEANN GUERNDT,
Plaintiff-Appellant,
v.
LABOR & INDUSTRY
REVIEW
COMMISSION, JIM'S
WELDING and THE
TRAVELERS
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER
CURIAM. Leeann Guerndt appeals from an order affirming a
decision of the Labor and Industry Review Commission. The Commission denied Guerndt's application for worker's
compensation benefits because it determined that she had not proven that she
suffered an injury which arose out of her employment. Because the findings of fact underlying the Commission's order
are supported by substantial credible evidence, we affirm.
Guerndt worked for Jim's
Welding as the office manager. She
began work in February of 1990. Guerndt
first saw a physician for shortness of breath on April 15, 1991. On October 14, 1991, Guerndt underwent
surgery for the removal of a lesion on her lung.[1] She returned to work, on a part-time basis,
on December 2, 1991. Guerndt
continued working fifteen hours per week until May 15, 1992, when she resigned.
Guerndt claimed that
dust and fumes in her workplace caused her respiratory problems. The Administrative Law Judge, relying on the
medical opinion of Dr. Jed Downs that Guerndt suffered from
"occupationally induced asthma," found that Guerndt had incurred an
injury while performing services arising out of her employment. The ALJ did not discuss the other medical
evidence in the record.
The Commission reversed
the ALJ. In its order, the Commission
discussed both Dr. Downs' opinion and the report submitted by an independent
medical examiner, Dr. Donald P. Schlueter, a professor at the Medical College
of Wisconsin. Dr. Schlueter opined that
a respiratory condition such as Guerndt's would require direct exposure to
welding fumes for a "prolonged period of time, in most cases many
years." Dr. Schlueter noted that
Guerndt had only "brief and intermittent" exposure to welding fumes
at her job. He also noted that the
"pulmonary functions studies" performed prior to the October 1991
surgery "were entirely normal" except for "minimal small airways
obstruction, as seen in smokers."
Dr. Schlueter concluded that Guerndt's asthma was not caused by
occupational exposure at the workplace nor did the exposure materially
aggravate or accelerate her asthma. In
his opinion, Guerndt developed asthma from a March 1992 respiratory infection.
On appeal, our standard
of review is the same as that of the circuit court. Boynton Cab Co. v. DILHR, 96 Wis.2d 396, 405, 291
N.W.2d 850, 855 (1980). The
Commission's order must be affirmed unless, inter alia, the Commission's
findings of fact do not support the order.
Section 102.23(1)(e)3, Stats. If the order "depends on any fact found
by the commission, the court shall not substitute its judgment for that of the
commission as to the weight or credibility of the evidence on any finding of
fact." Section 102.23(6), Stats.
The court may reverse the Commission if the order "depends on any
material and controverted finding of fact that is not supported by credible and
substantial evidence." Id. A finding of fact will be upheld "if
there is relevant, credible, and probative evidence upon which reasonable
persons could rely to reach a conclusion." Princess House, Inc. v. DILHR, 111 Wis.2d 46, 54,
330 N.W.2d 169, 173 (1983).
The cause of Guerndt's
asthma presents a question of fact. See
Manitowoc County v. DILHR, 88 Wis.2d 430, 437, 276 N.W.2d 755,
758 (1979). When evaluating medical
evidence, the Commission is the sole judge of the weight and credibility to be
given to the witnesses. See id.
Guerndt had the burden
of proof to establish that she sustained a work-related injury. Bumpas v. DILHR, 95 Wis.2d
334, 342, 290 N.W.2d 504, 507 (1980).
The Commission has a "duty" to deny a claim "if it finds
[that] a legitimate doubt exists regarding the facts necessary to establish a
claim." Id. (quoting
Erickson v. DILHR, 49 Wis.2d 114, 118, 181 N.W.2d 495, 497
(1970)).
The Commission found Dr.
Schlueter's opinion to be "the more credible" of the two medical
opinions. Although Dr. Downs diagnosed
occupationally induced asthma, the Commission noted that his opinion
acknowledged the absence of various tests that would have shown a
"definite work association."
The Commission noted that Guerndt worked at Jim's Welding for a
relatively short period of time, and was not directly exposed to any welding
fumes. The Commission wrote that
"Dr. Schlueter credibly opined that it would take years of heavy
exposure to result in this kind of respiratory problem."
Guerndt challenges those
portions of Dr. Schlueter's opinion in which he inaccurately describes the
physical layout of the workplace and the types of welding done at Jim's. Guerndt argues that Dr. Schlueter's mistaken
premises render the entire opinion not credible. We disagree. The comments
of the circuit court are pertinent:
"[A] close reading of the Commission's decision shows that its
causation finding was based upon Dr. Schlueter's opinion that it would takes
[sic] many years' exposure to welding fumes before pulmonary problems
developed.... While the Court
acknowledges that there are factual flaws in Dr. Schlueter's report, those
flaws do not render his diagnosis incredible." We agree that the inaccuracies are not relevant to the essence of
Dr. Schlueter's opinion and, therefore, they do not defeat its validity.
Guerndt also suggests
that the Commission overstepped its bounds when it did not accept Dr. Downs'
medical opinion as credible, as had the ALJ.
In its order, the Commission noted that it had consulted with the ALJ with
regard to witness credibility, and that the ALJ "found the applicant to be
very credible with regard to the dust and the fumes in the office where she
worked." The Commission expressly
accepted that credibility assessment, but found that Dr. Schlueter's medical
opinion with regard to the necessary exposure was credible. The Commission acted properly. See Braun v. Industrial Comm'n,
36 Wis.2d 48, 57, 153 N.W.2d 81, 85 (1967) (the Commission is required to
consult on the record with the ALJ where credibility of a witness is involved,
and the Commission reverses the ALJ).
However, as to the competing medical opinions, neither doctor testified
in person, so that the impressions of the ALJ on the credibility of the medical
witnesses was immaterial. This court
cannot disturb the Commission's judgment of the weight and credibility of the
medical evidence. Manitowoc
County, 88 Wis.2d at 437, 276 N.W.2d at 758.
Credible and substantial
evidence supports the Commission's finding that Guerndt did not sustain a
compensable injury. The Commission
properly denied Guerndt's application for worker's compensation benefits.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.