City of Seymour v. Industrial Commission

• Decision Date: 24 November 1964
• Citation: 25 Wis.2d 482,131 N.W.2d 323
• Parties: CITY OF SEYMOUR, a municipal corporation, et al., Appellants, v. INDUSTRIAL COMMISSION and Ben Jankowski, Respondents.
• Court: Wisconsin Supreme Court

Page 323

131 N.W.2d 323

25 Wis.2d 482

CITY OF SEYMOUR, a municipal corporation, et al., Appellants, v. INDUSTRIAL COMMISSION and Ben Jankowski, Respondents.

Supreme Court of Wisconsin.

Nov. 24, 1964.

Edward T. O'Neill, found du Lac, for appellants.

George Thompson, Atty. Gen., Madison, Beatrice Lampert, Asst. Atty. Gen., for defendant-respondent Industrial Commission.

Sigman, Sigman & Shiff, Appleton, for defendant-respondent Jankowski.

CURRIE, Chief Justice.

The employee Jankowski's expert witnesses testified that in their opinion one or both of his violent falls on the icy pavement in March, 1959, aggravated the pre-existing chordoma by damaging the surrounding tissues and making them more susceptible to the growth of the tumor. Based on this testimony the commission in its findings of fact found:

'* * * that although his tumor pre-existed his injury of March 9 and March 16, it was asymptomatic and was not disabling; that the injury of such dates provoked a reaction and stimulated the development of the tumor, which had been quiescent;'

Appellants challenge this finding, chiefly on the ground that the expert testimony supporting it exceeds the bounds of reasonableness because such testimony espouses a medical theory that has not basis in recognized and authoritative medical literature. Some of this testimony is attacked also on the ground that it was based upon erroneously assumed facts.

A considerable portion of the briefs is devoted to the preliminary issue of the scope of judicial review of the commission's findings of fact in workmen's compensation cases. Past decisions of this court make it clear that, in passing on the issue of whether the evidence sustains a finding of the commission made in a workmen's compensation proceeding, the test is whether there is credible evidence which, if unexplained, would support the finding. Shawley v. Industrial Comm. (1962), 16 Wis.2d 535, 114 N.W.2d 872; Wagner v. Industrial Comm. (1956), 273 Wis. 553, 565, 79 N.W.2d 264, 80 N.W.2d 456; Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 85, 258 N.W. 336. See Motor Transport Co. v. Public Service Comm. (1953), 263 Wis. 31, 46, 47, 56 N.W.2d 548, where the term 'if unexplained' is elucidated. 'Unexplained' is not the equivalent of uncontradicted, inasmuch as the issue of credibility is solely for the commission when there is a direct conflict in testimony.

Appellants assume that the scope of review here is governed by sec. 227.20(1)(d), States., ¹ of the Wisconsin Administrative Procedure Act. They err in their assumption because sec. 227.22(2), Stats., provides, 'Only the provisions of ss. 227.01 to 227.21 relative to rules are applicable to matters arising out of the workmen's compensation act or the unemployment compensation act.' Whether there would be a material difference in the scope of review of the commission's findings of fact in workmen's compensation cases if the provision of sec. 227.20(1)(d) were to be applied we find it unnecessary to determine here.

With respect to whether the testimony of Jankowski's expert medical witnesses constituted credible evidence to sustain the commission's finding of fact, we turn to Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.2d 343, 99 N.W.2d 163. In that case this court held a jury award of $50,000 damages to a child necessarily implied a finding that prenatal injury was the cause of the child being born a Mongoloid. A physician had testified that it was his opinion to a reasonable medical certainty that the accident had caused this result. We approved the result reached by the trial court denying the award and stated (at pp. 353, 354, 99 N.W.2d at p. 169):

'When scientific or medical theories or explanations have not crossed the line and become an accepted medical fact, opinions based thereon are no stronger or convincing than the theories. While this court has gone a long way in admitting expert testimony deduced from well-recognized scientific and medical principles or discoveries, nevertheless the facts from which the opinion is made must be sufficiently established to have gained general acceptance in the particular medical field in which they belong. Otherwise, the opinion is based not on facts but conjecture.'

The expert testimony adduced before the commission was that a chordoma is rather a rare tumor of low-grade malignancy. It originates from embryonic remnants of the notocord, which notocord develops into the spinal cord. While it is estimated that two percent of the population have such embryonic remnants or 'rests' which predisposes them to chordoma, very few ever develop a chordoma. One expert witness testified that only .01 percent of this two percent of the population ever are afflicted with such a tumor. Another expert witness testified that only one percent of all spinal cord tumors are chordomas.

Three expert medical witnesses testified in behalf of Jankowski: Doctors Oudenhoven, Cyrus, and Pessin.

Dr. Oudenhoven, although but thirtythree years of age at the time he testified in 1961, has an impressive record. After graduation from medical school in 1952 he was a neurological resident at St. Vincent's hospital at Green Bay, assistant neurosurgeon at Great Lakes Naval Training Station, and acting neurosurgeon at the Veterans Administration hospital at Dayton, Ohio. While at Dayton he was also an instructor in neurological surgery at Ohio State University Medical School. Dr. Oudenhoven testified that Jankowski's condition was distinctly related to his fall and that the trauma therefrom definitely aggravated or facilitated the development of this condition. On cross-examination the doctor stated his opinion 'gets down to a sequence of events.'

Dr. Cyrus is a pathologist specializing in neuropathology and is consultant to several Milwaukee hospitals. He is also on the teaching staff of Marquette University Medical School. Although he never attended Jankowski or examined Him, Dr. Cyrus had the benefit of Jankowski's complete medical history as disclosed by the records of St. Vincent's hospital of Green Bay and specimen slides of tissue taken from the tumor area. He expressed the opinion that the trauma from the fall most probably contributed to the tumor's alteration and that he could with reasonable certainty declare 'that the chordoma expression is related to the trauma.' Dr. Cyrus further testified: 'The trauma aggravated the tumor and facilitated its extension.' By the use of the word 'facilitated' he meant that the trauma permitted the tumor's extension beyond the site of confinement by providing routes and avenues, which, prior to the occurrence of the trauma, 'were not to its avail.' The avenues of extension were provided when the trauma caused an inflammatory reaction in the tissues adjacent to and extending into the tumor. The presence of scar tissue formation in the microscopic slides confirmed that the inflammatory reaction had occurred. Where there is fibrous tissue there was once succulent, inflammatory tissue.

For thirty years Dr. Pessin has been engaged in his profession as a clinical pathologist and anatomical pathologist. Since 1945 he has been an associate professor of pathology in the Marquette University Medical School and pathologist and director of laboratories at St. Mary's hospital in Milwaukee. At one time he was senior pathologist at the state Laboratory of Hygiene at the University of Wisconsin in Madison. Prior to testifying he examined Jankowski's medical records and the slides of tissue. Dr. Pessin testified: his opinion to a reasonable medical certainty is that the trauma aggravated a pre-existing chordoma by causing disruption of the tissues and by creating spaces and avenues of extension so that the chordoma would spread; as a chordoma spreads beyond its confinement it invades soft parts around bone, including nerves; this causes compression of the nerves with resulting pain. On cross-examination he stated that there was no clinical evidence of the trauma having provided avenues of extension except the chronological sequence of events.

The city and its insurance carrier called but one medical expert witness, Dr. Enzer. For many years he has been a specialist in pathology. Since 1927 he has been director of pathology and clinical laboratories at Mt. Sinai hospital in Milwaukee. He is undoubtedly a highly competent and greatly respected specialist in his field. Dr. Enzer testified: in his opinion Jankowski's falls had nothing to do with the latter's disability due to a malignant tumor of the spinal cord; there is no basis for relating a single trauma to the cause, development or...