Summary
In Davis v. Industrial Comm. (1964), 22 Wis.2d 674, 126 N.W.2d 611, involving a herniated disc of the type of injury presented in Brown v. Industrial Comm. (1960), 9 Wis.2d 555, 101 N.W.2d 788, and in Theisen v. Industrial Comm. (1959), 8 Wis.2d 144, 98 N.W.2d 446, we stated the Meade and McCarthy Cases were not necessarily overruled by those decisions.
Summary of this case from Anheuser Busch, Inc. v. Industrial CommOpinion
February 5, 1964 —
March 3, 1964.
APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Reversed.
For the appellant Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the briefs was George Thompson, attorney general.
For the appellants Decar Plastic Corporation and Zurich Insurance Company there was a brief by Schlotthauer, Jenswold, Reed Studt and Robert R. Studt, all of Madison, and oral argument by John F. Jenswold.
For the respondent there was a brief by Lawton Cates and John C. Carlson, all of Madison, and oral argument by Mr. Carlson.
Workmen's compensation. Application by plaintiff-respondent for compensation for industrial hernia allegedly sustained in an accident on October 20, 1959, arising out of the plaintiff's employment with defendant-appellant Decar Plastic Corporation (hereinafter Decar). Plaintiff worked for Decar for about sixteen and one-half months before being laid off. His duties involved, among other things, moving skids bearing crates of plastic sheets from one place to another. This was done by means of a four-wheeled device which was positioned under the skid. The bed of this device was then raised hydraulically by depressing a lever until the skid was lifted off the floor.
Loads moved in this way ranged in weight up to 1,800-1,900 pounds. They averaged between 500 and 800 pounds. Two workers generally combined on the heavier loads. According to plaintiff, he slipped while lifting a load of 500 pounds in the manner described above, on October 20, 1959. He felt a pulling, burning sensation in his side. He also testified he felt a small lump in his groin area immediately after the incident. In his further testimony, he stated he first noticed the lump a few days later. Although he felt weak he was not sick to his stomach and ate his evening meal in the customary manner. He did not stop work that day and continued to work without interruption until laid off in August of 1960. On the date of the incident described above he had been working for about five months.
At the time of the accident plaintiff did not inform his foreman; there is a dispute as to whether he ever reported this accident to his foreman or to anyone else in a supervisory position. Plaintiff claims that a co-worker knew of the accident. Unfortunately, the co-worker died before the compensation hearing was held.
Plaintiff continued to work until he was laid off August 5, 1960. At that time he asked his foreman if it would be a good time to have his hernia taken care of. He saw a doctor concerning his hernia for the first time on August 12, 1960; he was operated on August 15, 1960; he applied for compensation August 26, 1960. Plaintiff had had one previous hernia operation.
A hearing was held before an Industrial Commission examiner. At the hearing the report of Dr. Arnold Jackson was admitted in evidence:
"3. Date of accident or first illness 10-20-59
"4. State in patient's own words how the accident or illness occurred. Patient was lifting a load of plastic weighing approximately 500 pounds and noticed a pulling sensation in his left groin. Patient later noticed a lump in left inguinal area. He stated that he mentioned this to a fellow employee but did not notify his foreman until 8-5-60.
"5. In your opinion did patient sustain (a) accidental injury x (b) occupational disease? [Not answered]
". . .
"10. If accidental, in your opinion did the accident cause the disability sustained? Yes.
"11. If occupational disease, did the work exposure cause the disability sustained? [Not answered]
"12. If disability was not directly caused by accident or illness, did it result indirectly or by aggravation or acceleration of a preexisting condition? [Not answered]"
At the hearing, other employees testified that the plaintiff complained to them of pains in his side at various times after the date of the alleged accident.
In his findings of fact the hearing examiner stated:
". . . that the episode of October 20, 1959 was not sufficient to create an accidental hernia; . . .
". . . that the general duties of the applicant were not sufficiently arduous to produce an occupational hernia; . . ."
He made no finding with respect to timely notice. He ordered the application for compensation dismissed. Plaintiff petitioned the Industrial Commission for review. The commission affirmed the findings and order of the examiner without opinion.
On review of the commission's action, the circuit court rendered judgment reversing the order and findings of the hearing examiner and remanded the record for reconsideration of the evidence. Defendants Industrial Commission, Decar, and Zurich Insurance Company appeal from the judgment.
The trial court's memorandum opinion states in part as follows:
"Plaintiff reasons that under the 'current' compensation law he is entitled to recovery. His contention is that Meade vs. Wisconsin Motor Mfg. Co. (1918 168 Wis. 250, 251; and McCarthy vs. Sawyer-Goodman Co. (1927) 194 Wis. 198, 203, are no longer the law in Wisconsin, specifically because pre-existing weakness or disposition to injury is no 'bar' to recovery and because traumatic 'culmination' as distinguished from traumatic 'origin' is sufficient to establish industrial injury.
"1 Larson, Workmen's Compensation, sec. 12.20, p. 170. We believe this contention to have support in recent decisions of our Court, as Brown vs. Industrial Comm. (1960 9 Wis.2d 555 and Theisen vs. Industrial Comm (1959) 8 Wis.2d 144.
"Aside from the formal rules promulgated in our Administrative Code, which includes Industrial Commission rules with respect to determining loss of hearing, et cetera, we know of nothing short of the constitution and the general law that need control the Industrial Commission in the application of the Workmen's Compensation Law, except it be the Workmen's Compensation Law itself as enacted by the legislature and as interpreted by the Supreme Court. It follows, in view of the advances made by our Supreme Court, that the Commission is no longer governed by the 'specific standards' of Meade and McCarthy but must determine inguinal hernia cases, as other cases, under the applicable general principles of the doctrine that pre-existing disease or infirmity does not foreclose recovery where it can be shown that the employment 'aggravated, accelerated or combined with' such disease or infirmity to cause 'the disability for which compensation is sought'.
"In our judgment this means that the Commission order and the findings as well must be set aside and the record remanded so that the Commission can address itself anew to the evidence received under the principles of law we have here interpreted to be the 'law of the case'. Upon receiving the record under such principles of law it will then devolve upon the Commission to make such findings of fact and conclusions of law as it determines should be made. We cannot go so far as to say that the credible evidence before the Commission in this case will admit of but one reasonable finding of ultimate fact as to whether the plaintiff did or did not suffer an industrial hernia."
It does not necessarily follow, however, that the examiner applied the Meade and McCarthy test in making his findings of fact, nor that the commission did so in affirming.
"We are required to assume, unless there is affirmative proof to the contrary, that the commission acted regularly as to all matters and pursuant to the rules of law and proper procedures in its determination." Brouwer Realty Co. v. Industrial Comm. (1954), 266 Wis. 73, 80, 62 N.W.2d 577.
The plaintiff contends that the doctor's report submitted by plaintiff under sec. 102.17(1) (as), Stats., establishes the fact that plaintiff suffered an "industrial" hernia.
The statute provides that such a report, when offered by a claimant, "shall constitute prima facie evidence as to the matter contained therein," subject to rules promulgated by the commission. The commission has determined that the only grounds for excluding these reports are incompetency or immateriality, in which case proper objection must be made. 3 Wis. Adm. Code, sec. Ind 80.22.
The opinions and conclusions of medical witnesses based upon statements of the claimant were to be disregarded if the commission (here the examiner) did not believe such statements were true.
Pressed Steel Tank Co. v. Industrial Comm. (1949), 255 Wis. 333, 38 N.W.2d 354; Theisen v. Industrial Comm. (1959), 8 Wis.2d 144, 153, 98 N.W.2d 446; Franckowiak v. Industrial Comm. (1960), 12 Wis.2d 85, 106 N.W.2d 51.
In this instance the only medical evidence is the form report of the doctor. Plaintiff stated to the doctor that he "was lifting a load of plastic weighing approximately 500 pounds." It is undisputed that the lifting was done by depressing a handle on a hydraulic lift. How much force was necessary to lift 500 pounds in this manner does not appear in the evidence. The commission could conclude that there was a material variance between his testimony and the statement given the doctor, and that the medical opinion based upon claimant's statement should be disregarded.
The examiner and the commission could fairly conclude that the plaintiff did not meet his burden of proof to establish an accidental hernia.
The plaintiff's claim as filed and the doctor's report deal only with the question of accidental hernia alleged to have been sustained by the event of October 20, 1959. All the questions of the medical form dealing with occupational hernia are unanswered. Again the examiner and the commission could justifiably conclude that plaintiff had failed to meet his burden of proof to establish occupational hernia.
The record does not reveal whether the commission applied the tests of the Meade and McCarthy Cases or the broader rule of the Theisen and Brown Cases, nor was it necessary to do so. The commission could determine that plaintiff has not proved his claim under either test.
The Theisen and Brown Cases deal with herniated discs in back injuries; the Meade and McCarthy Cases deal with abdominal hernias. We do not imply under the facts herein that the Meade and McCarthy Cases should be overruled.
By the Court. — Judgment reversed; cause remanded with directions to affirm the order of the Industrial Commission.
WILKIE, J., took no part.