City of Superior v. Department of Industry, Labor and Human Relations

• Decision Date: 30 June 1978
• Docket Number: No. 77-272,77-272
• Citation: 267 N.W.2d 637,84 Wis.2d 663
• Parties: CITY OF SUPERIOR and Sentry Insurance Company, Plaintiffs-Appellants, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS and Maz Luzaich (Deceased) and Pearl Luzaich, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 637

267 N.W.2d 637

84 Wis.2d 663

CITY OF SUPERIOR and Sentry Insurance Company, Plaintiffs-Appellants, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS and Maz Luzaich (Deceased) and Pearl Luzaich Defendants-Respondents.

No. 77-272.

Supreme Court of Wisconsin.

Argued June 5, 1978.

Decided June 30, 1978.

Walter D. Thurow, Madison, for plaintiffs-appellants; Wightman, Thurow & Sauthoff, Madison, on brief.

Bruce F. Ehlke, and Lawton & Cates, Madison, for defendants-respondents; Bronson C. La Follette, Atty. Gen., and Donald P. Johns, Asst. Atty. Gen. for Dept. of Industry, Labor & Human Relations, filed a joint brief.

DAY, Justice.

This is an appeal from a judgment in a public employe death benefits claim under sec. 66.191, Stats. (1975). ¹ Plaintiffs-Appellants, City of Superior (city) and Sentry Insurance Company (company) were ordered to pay a claim for the death of Max Luzaich (deceased), formerly a captain of the city of Superior Fire Department. The death benefits were to be paid to defendant-respondent, Pearl Luzaich (Mrs. Luzaich) and her son Michael.

There are three issues on this appeal:

1. Is there substantial evidence to support the Department of Industry, Labor and Human Relations' (D.I.L.H.R.) finding that the aggravation of Mr. Luzaich's heart disease resulted in his death?

2. Did the D.I.L.H.R. hearing examiner err by admitting in evidence a medical report made at the time the deceased became a fire fighter?

3. Does the worker's compensation policy in this case provide coverage for death benefits under sec. 66.191, Stats. (1975)?

Some of the facts found by D.I.L.H.R. are not specifically challenged by the company. These facts may be paraphrased as follows: On April 16, 1948 the deceased began working for the city as a fire fighter. Prior to starting his employment the deceased had a qualifying medical examination which showed no evidence of heart or respiratory disease. The deceased was a fire fighter for the city for seventeen years and was then promoted to captain in 1965.

The deceased's work required him to respond to approximately 275 to 325 fire alarms per year. During the course of fighting fires he was under stress and inhaled smoke. Even after being promoted to captain the deceased's work required him to continue to respond to alarms under stressful conditions and actively engage in fighting fires. On six occasions the deceased suffered from excessive smoke inhalation as a result of his work for the city.

During his employment the deceased was treated for elevated blood pressure. In the opinion of the deceased's treating physician, Dr. Lavine, the deceased's work for the city aggravated his high blood pressure. Dr. Lavine also opined that high blood pressure and emotional stress are pre-disposing factors to heart disease.

On October 22, 1973 the deceased was handling storm windows on a ladder. This work was not connected to his employment for the city. While doing this work he suffered an acute myocardial infarction that caused his death.

D.I.L.H.R. also made other findings concerning the cause of Mr. Luzaich's death. These findings are specifically challenged by the company and will be discussed below.

On April 23, 1976 the three hearing examiners who heard the testimony in this case conferred, made the findings above and ordered the company to pay Mrs. Luzaich a lump sum and periodic payments in her own right and as guardian ad litem for her son, Michael. Following a petition for review, the D.I.L.H.R. commission made minor modifications in the findings and order on October 12, 1976. These modifications are not pertinent to this appeal.

Substantial Evidence To Support D.I.L.H.R. Finding.

The company challenges D.I.L.H.R.'s factual findings. Claims under sec. 66.191, Stats. are properly reviewable under ch. 227, the administrative procedure statute. Sperbeck v. I. L. H. R. Dept., 46 Wis.2d 282, 290, 174 N.W.2d 546 (1970); Reinke v. Personnel Board, 53 Wis.2d 123, 136, 191 N.W.2d 833 (1971).

Under sec. 227.20(6), Stats. (1975), an agency finding of fact will not be overturned unless the agency's finding ". . . is not supported by substantial evidence in the record." This standard does not allow a reviewing court to weigh the evidence or pass on the credibility of witnesses. Moreover, an agency determination reviewable under ch. 227 will not be overturned because it is against the great weight and clear preponderance of the evidence. Voight v. Washington Island Ferry Line, 79 Wis.2d 333, 342, 255 N.W.2d 545 (1977), citing Gateway City Transfer Co. v. Public Service Comm., 253 Wis. 397, 405, 34 N.W.2d 238 (1948).

Before deciding whether the D.I.L.H.R. finding is supported by substantial evidence, it must first be determined what finding the company attacks and what D.I.L.H.R. actually found. The company states that, "There is absolutely no evidence indicating the employment aggravated a pre-existing disease so as to cause death on October 22, 1973." The company also claims that there ". . . is absolutely no evidence showing . . ." that ". . . the aggravation resulted in his (deceased's) death on April 22, 1973."

The pertinent portion of the D.I.L.H.R. findings are as follows:

". . . that the deceased's work for the respondent as a fire fighter and as a captain in respondent's fire department was sufficiently arduous and stressful enough to aggravate and accelerate beyond normal progress the arteriosclerotic heart disease from which the deceased suffered and which resulted in his death on October 22, 1973; that the deceased sustained an injury caused by an occupational disease arising out of employment by the respondent; that such injury, by aggravation and acceleration of the pre-existing condition, caused the death of the deceased ; . . ." (Emphasis added).

The underlined portion, although somewhat confusing, might be interpreted to mean that the occupational aggravation of the heart condition caused death. But, the portion immediately before that clearly states that death resulted from arteriosclerotic heart disease and that the deceased's employment was an aggravating and accelerating factor. This latter finding is the only one that is necessary to support D.I.L.H.R.'s award in this case.

"If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident-causing injury or disease and the employee should recover even if there is no definite 'breakage.' Shawley v. Industrial Comm., supra; Currie, 37 Wis.Bar Bulletin 7." Lewellyn v. I. L. H. R Dept., 38 Wis.2d 43, 59, 155 N.W.2d 678, 687 (1968). ²

The necessary D.I.L.H.R. finding in this case is that death was caused by heart disease and that the deceased's employment aggravated that disease. This finding is supported by the presumption of sec. 891.45, Stats. and by substantial evidence in the record. Sec. 891.45, Stats. (1975) ³ provides that,

"891.45. Presumption Of Employment Connected Disease. In any proceeding involving the application by a municipal fire fighter or his or her beneficiary for disability or death benefits under s. 66.191 or any pension or retirement system applicable to fire fighters, where at the time of death or filing of application for disability benefits the deceased or disabled fire fighter had served a total of 5 years as a fire fighter and a qualifying medical examination given prior to the time of his or her joining the department showed no evidence of heart or respiratory impairment or disease, and where the disability or death is found to be caused by heart or respiratory impairment or disease, such finding shall be presumptive evidence that such impairment or disease was caused by such employment."

The presumption of sec. 891.45, Stats. was interpreted in Sperbeck v. I. L. H. R. Dept., supra.

" 'We are of the opinion that there are two types of rebuttable presumptions. One type is invoked by the law for reasons of public policy without regard to whether the presumption thus invoked is likely to bear any reasonable relationship to the actual fact presumed. A typical example of this type is the presumption that a deceased person exercised due care for his own safety. Such a presumption disappears from the case as soon as any evidence is introduced which tends to establish negligence on the part of the deceased. Callahan v. Van Galder, 3 Wis.2d 654, 657, 89 N.W.2d 210 (1958); McCarty v. Weber, 265 Wis. 70, 73, 60 N.W.2d 716 (1953).

" 'The other type of presumption is one in which the facts upon which it is based reasonably give rise to an inference of the ultimate conclusion embodied in the presumption. The presumption of undue influence, with which we are here concerned, is of this latter category. For reasons of policy the law has seen fit to clothe such an inference with the authority of a presumption in order to determine the result when no evidence to the contrary is introduced. However, there is no perceivable reason grounded on policy or logic why the inference should not continue after some evidence has come into the case which tends to rebut the presumption. Basing a finding of fact on an inference is nothing more than grounding such a finding on circumstantial evidence. Cf. Ryan v. Zweck-Wollenberg Co., 266 Wis. 630, 647, 64 N.W.2d 226 (1954).

" 'Professor McCormick recognizes the two classes of presumptions heretofore discussed. McCormick, Evidence (hornbook series), p. 639, sec. 308. Furthermore, in speaking of a presumption grounded upon a reasonable inference, he states that ". . . the inference remains though the 'presumption' has 'disappeared.' " Id., at page 650, sec. 311.' Schlichting v. Schlichting, 15 Wis.2d 147, 156, 157, 112 N.W.2d 149, 155 (1961)."

Sperbeck at 46 Wis.2d 287, 174 N.W.2d 548.

In Sperbeck this court concluded that the presumption of sec. 891.45, Stats. was a presumption based on probability that may remain as an inference even though...