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COURT OF APPEALS DECISION DATED AND RELEASED September 7, 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. 95-1487-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
CLOROX/MOORE'S FOOD
PRODUCTS
and NATIONAL UNION
FIRE
INSURANCE COMPANY,
Plaintiffs-Respondents,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendant-Appellant
BRENDA L. PEPLINSKI,
Defendant.
APPEAL from an order of
the circuit court for Jefferson County:
JOHN ULLSVIK, Judge. Reversed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER CURIAM. The Labor and Industry Review Commission
appeals from an order remanding this worker's compensation case to the
agency. The issue is whether the
commission's order was supported by sufficient evidence. We conclude it was. We reverse.[1]
The commission found
that applicant Brenda L. Peplinski suffered ninety percent permanent partial
disability at the right wrist.
Clorox/Moore's Food Products and National Union Fire Insurance Company
("the employer") sought judicial review. The circuit court concluded that the commission's determination
was not supported by the evidence and remanded for further proceedings.
Judicial review of
commission decisions is pursuant to § 102.23, Stats. We may set
aside the commission's award if it depends on a finding of fact that is not
supported by credible and substantial evidence. Section 102.23(6).
However, the court may not substitute its judgment for that of the
commission as to the weight or credibility of the evidence on any finding of
fact. Id.
The commission relied
primarily on the opinion of Dr. James Leonard.
The employer argues that Leonard's opinion is insufficient evidence for
the award because there was great evidence contrary to his opinion, and because
Leonard initially had some doubt about Peplinski's disability. However, because we are not to weigh the
evidence, the evidence opposing the commission's decision is irrelevant for
purposes of judicial review. The
commission noted that Leonard "had extensive contacts with the applicant
for treatment and was familiar with the nature and onset of her
condition." The fact that
Leonard's ultimate conclusion differed from his initial view does not render his
opinion incredible or insubstantial. It
is the exclusive function of the commission to reconcile inconsistencies in
witness testimony. Ruff v. LIRC,
159 Wis.2d 239, 245, 464 N.W.2d 56, 59 (Ct. App. 1990).
The employer argues that
Peplinski failed to meet her burden of proof because the uncontroverted
psychiatric evidence was that she is malingering. The commission stated:
The
commission consulted with the administrative law judge concerning his
assessment of the applicant's demeanor and testimony. The administrative law judge indicated that he found the
applicant to be consistent and credible concerning the description of her
ongoing restrictions and complaints in her right wrist. Further, the administrative law judge stated
that he found nothing in the applicant's demeanor to suggest that she was
malingering.
The employer cites no
authority that the commission must accept an expert's opinion over its own
evaluation of the applicant. We reject
the argument. Therefore, we reverse the
circuit court order remanding to the commission.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.