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COURT OF APPEALS DECISION DATED AND RELEASED May 22, 1996 |
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. 95-2139
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
KERRY L. FARMER,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
JAY DEE CONTRACTORS,
INC., and
ARGONAUT MIDWEST
INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Kenosha County:
MICHAEL FISHER, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Kerry L. Farmer appeals from an order affirming a
determination by the Labor and Industry Review Commission (LIRC) that Farmer is
not entitled to any additional worker compensation benefits. At issue is whether Farmer's psychological
impairments are related to the work injury.
We conclude that LIRC's decision is supported by credible and
substantial evidence. We affirm the
order.
While employed by Jay
Dee Contractors, Inc., Farmer suffered a work injury on February 27, 1991, and
never returned to work. He developed a
chronic pain syndrome. He was also
found to be suffering from maladies of depression and emotional
dysfunction. Based on the opinion of
Dr. Marc Novom,[1] LIRC found
that on May 28, 1992, Farmer reached a healing plateau for both his physical
and psychological injuries caused by the work accident. It found that Farmer's current disability
stems from his nonindustrial depression.
It assigned a two percent permanent partial disability and determined that
there was no loss of earning capacity.
When an appeal is taken
from a circuit court order on administrative review, we review the decision of
the agency, not the circuit court. See
MPI Wis. Machining Div. v. DILHR, 159 Wis.2d 358, 365-66, 464
N.W.2d 79, 81-82 (Ct. App. 1990). It is
LIRC's duty to deny benefits if it finds that a legitimate doubt exists
regarding the facts necessary to establish a claim. Leist v. LIRC, 183 Wis.2d 450, 457, 515 N.W.2d 268,
270 (1994). If there is credible
evidence to support LIRC's denial, we will not upset it on appeal. Id.
We must affirm LIRC's
findings of fact if they are supported by any credible and substantial evidence
in the record, even if they are contrary to the great weight and clear
preponderance of the evidence. West
Bend Co. v. LIRC, 149 Wis.2d 110, 117-18, 438 N.W.2d 823, 827 (1989); see
also § 227.57(6), Stats. We cannot substitute our judgment for
that of the commission regarding the credibility of witnesses or the weight to
be accorded to the evidence supporting factual findings. West Bend Co., 149 Wis.2d at
118, 438 N.W.2d at 827.
Farmer first argues that
the opinions rendered by Novom cannot constitute credible and substantial
evidence on psychological issues because Novom, a consulting neurologist, is
not an expert in the field of mental or psychological conditions. Farmer did not object to the admission of
Novom's report or his competency to render opinions as to psychological
causation. Despite the apparent waiver
of any potential error, we conclude that LIRC was entitled to rely on Novom's
opinions.
It was not necessary
that Novom be qualified as an expert in the particular medical field in which
some of his opinions fell. "The
law ... does not recognize any gradation of experts based on specialized training
or practice. So long as a physician
qualifies as an expert the weight to be accorded his [or her] testimony is for
the [fact-finder]." Riehl v.
De Quaine, 24 Wis.2d 23, 32, 127 N.W.2d 788, 793 (1964); see also
State v. Peters, 192 Wis.2d 674, 687, 534 N.W.2d 867, 872 (Ct.
App. 1995) (the admissibility of scientific evidence is not conditioned upon
its reliability). Novom was qualified
as a medical expert; indeed, Farmer stipulated to the admission of Novom's
reports. The weight and credibility of
his opinion was a matter solely for LIRC.[2] Valadzic v. Briggs & Stratton
Corp., 92 Wis.2d 583, 598, 286 N.W.2d 540, 547 (1979).
Farmer next claims that
LIRC could not rely on the written report of Dr. Brad Grunert, who
performed an independent psychological evaluation, when Grunert's testimony at
the hearing was different. Farmer
characterizes Grunert's report as concluding that Farmer's psychological
impairments are not caused by the work accident. He then relies on the following question on cross-examination as
impeaching that conclusion:
Q: And that the marital relationship
notwithstanding, the injury was a materially contributing factor to the
development of the major depressive disorder?
A: That
is correct.
The question asked of
Grunert on cross-examination was a hypothetical question and somewhat
confusing. We do not deem Grunert to be
bound by the answer or that his answer impeached his prior written report. That report stated that in Grunert's opinion
Farmer's psychological impairments are
multifactorial
in their causation. The primary
stressor that appears to have initiated these by history is his deteriorating
marital relationship. I have no doubt
there is some component which has contributed to his situation as a result of
his chronic pain, however, this contribution really seems to be minimal in
terms of the magnitude of his marital difficulties.
Grunert's testimony on
cross-examination was consistent with this opinion. He was asked not to consider marital discord at all and render an
opinion as to the cause of Farmer's psychological problems. The only possible response was that the work
accident, the only remaining factor, was the cause. The question was an unfair attempt to make it appear as though
Grunert had changed his opinion. LIRC
could ignore that part of the testimony.[3]
Farmer next argues that
LIRC, in noting that Farmer was not incapable of cooperating with treatment,
misinterpreted the testimony of Dr. William Bjerregaard, a treating
psychiatrist. We need not decide
whether Bjerregaard was of the opinion that Farmer was not capable of
cooperating with treatment.[4] LIRC made no specific finding that Farmer
was uncooperative with treatment. That
issue was not the linchpin of LIRC's decision.
Farmer's final argument
is that LIRC erred in determining that he did not have a physical disability
and in denying a claim for loss of earning capacity. LIRC held:
Considering the lack of objective verification
of this pain, it is inferred that the only significant disability which the
applicant continues to experience stems from his non-industrial
depression. Accordingly, no loss of
earning capacity is found.
Farmer complains that
there are no vocational reports in the record from which LIRC could make its
conclusion. However, he fails to
recognize that it was his burden to establish the loss of earning capacity
claim. Farmer's application for a
hearing listed reduced earning capacity as a claim for additional compensation. The hearing transcript does not reveal any
understanding by the parties that, as Farmer asserts in his reply brief, the
loss of earning capacity claim was not ripe at the time of the hearing because
of unresolved psychological and healing plateau issues. There was no request before or at the
hearing that the loss of earning capacity claim be the subject of a continued
hearing. Farmer cannot now complain
that he was denied the opportunity to make the necessary proof on his loss of
earning capacity claim.
We conclude that LIRC's
inference that Farmer's only significant disability stems from his
nonindustrial depression is supported by sufficient evidence. Novom found that there was no readily
definable biologic basis for Farmer's ongoing complaint of pain. Farmer's treating physician also indicated
that a large degree of Farmer's disability was of psychiatric origin. Alternative sources of the depression were
demonstrated.
Novom concluded Farmer
could return to a "variety of employ," albeit not with his former
employer, abiding by permanent work restrictions. Farmer never offered any evidence that the work restrictions
precluded his ability to return to work at the requisite wage level. LIRC properly denied Farmer benefits for
loss of earning capacity.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Novom concluded that Farmer's "immutable depressed state draws no relation whatsoever to the original worker's injury. His emotional state is greatly charged if not excessively focused on marital conflict."
[2] Farmer's claim that Novom's reports were based on an incomplete medical history because there was no evidence that Novom reviewed records of the treating psychiatrist bears only on the weight and credibility LIRC gives to the reports.
[3] Even if we were to accept Farmer's characterization that Grunert's testimony was a departure from the statements in his report, that does not render the report incredible as a matter of law. Contradictions in minor points of testimony do not render the testimony inherently or patently incredible but merely create a question of credibility for the fact finder to resolve. Haskins v. State, 97 Wis.2d 408, 425, 294 N.W.2d 25, 36 (1980).