Fitz v. Industrial Commission

• Decision Date: 05 April 1960
• Citation: 102 N.W.2d 93,10 Wis.2d 202
• Parties: Richard E. FITZ, Appellant, v. INDUSTRIAL COMM. and C. R. Meyer and Sons Co., a Wisconsin corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 93

102 N.W.2d 93

10 Wis.2d 202

Richard E. FITZ, Appellant, v. INDUSTRIAL COMM. and C. R. Meyer and Sons Co., a Wisconsin corporation, et al., Respondents.

Supreme Court of Wisconsin.

April 5, 1960.

Brown & Winter, Madison, for appellant.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., Edward T. O'Neill, Fond du Lac, for respondent.

HALLOWS, Justice.

The first question is whether there is any credible evidence to sustain the finding of the industrial commission that the condition of the appellant's femoral arteries as found in 1956 was not caused by, aggravated by, or related to his injury of May 21, 1952.

There is no dispute as to the applicable principles of law. If the medical testimony was in conflict, the weight thereof and the credibility of the witnesses was for the commission to determine. Unruh v. Industrial Comm., 1959, 8 Wis.2d 394, 99 N.W.2d 182; Tuohy v. Industrial Comm., 1958, 5 Wis.2d 576, 93 N.W.2d 344; Polzin v. Industrial Comm., 1958, 4 Wis.2d 600, 91 N.W.2d 109; Molinaro v. Industrial Comm., 1956, 273 Wis. 129, 76 N.W.2d 547; Milwaukee Electric Railway & Transport Co. v. Industrial Comm., 1951, 258 Wis. 466, 46 N.W.2d 198.

If the evidence is sufficient to raise in the mind of the commission a legitimate doubt as to the existence of facts necessary and essential to establish a claim for compensation, it is the duty of the commission to deny compensation. This is another way of saying the claimant has the burden of proof which he has not sustained. Johnston v. Industrial Comm., 1958, 3 Wis.2d 173, 87 N.W.2d 822; Beem v. Industrial Comm., 1943, 244 Wis. 334, 12 N.W.2d 42. The causal relationship between an injury and the disability presents a fact question for the commission. Unruh v. Industrial Comm., supra; Tuohy v. Industrial Comm., supra; Melli v. Industrial Comm., 1956, 274 Wis. 76, 79 N.W.2d 225. Unless the commission's finding is clearly against all the credible testimony, or is so inherently unreasonable in itself as not to be entitled to any weight, the finding of the commission on questions of fact is final. Unruh v. Industrial Comm., supra; Tuohy v. Industrial Comm., supra; Soper v. Industrial Comm., 1958, 5 Wis.2d 570, 93 N.W.2d 329; Borden Co. v. Industrial Comm., 1958, 2 Wis.2d 619, 87 N.W.2d 261; Schuh v. Industrial Comm., 1958, 2 Wis.2d 611, 87 N.W.2d 256.

The appellant first argues there is sufficient credible testimony to support his contention that the condition in his thighs was caused by trauma and not disease. This may or may not be true, but it is immaterial. As this court said in Unruh v. Industrial Comm., supra, 8 Wis.2d at page 398, 99 N.W.2d at page 184: 'The question is not whether there is credible evidence in the record to sustain a finding the commission didn't make, but whether there is any credible evidence to sustain the finding the commission did make.'

The second argument is that the findings are not supported by any medical testimony because the respondent's medical experts based their opinions on erroneous assumptions of fact, i. e., no injury above the knees, pathological report that arteriosclerosis was present, lack of symptoms, and a history of hypertension. There was evidence, which the commission could deem credible, that the accident caused only slight injury to the right below the knee and no injury to the left leg. Dr. Backus, the attending physician on the day of the accident, found no injury to the left leg and a bruise on the lower right leg below the knee. There was no subcutaneous bleeding in either leg resulting in discloration. The appellant told Dr. Reichardt in 1953 that the timber hit only his right leg. The foreman who lifted the timber off the appellant testified it rested across both lower legs. The appellant returned to his construction job in July, 1952, and worked at various heavy jobs, operated his farm and cranberry bog until the middle of 1956, and went deer and bird hunting in 1952, 1953, and 1955. The appellant did not complain of his legs to the insurance carrier's adjuster in January, 1953, or to Dr. Reichardt who examined him in April of 1953, although he did complaint of soreness in the right leg below the knee. In 1953 when the appellant entered into a stipulation on which the awarded was entered, no mention was made of the condition of his except the sprain of the right ankle. On August 25, 1956, the appellant wrote a letter to the defendant compensation carrier, stating his legs had been giving him trouble during the past year. This was the first notice given to the insurance carrier. The consensus of the medical testimony on behalf of the respondent was that the appellant's condition was the result of arteriosclerosis obliterans or disease and in order for the injury of 1952 to cause arteriosclerosis in the appellant's legs the injury would have to have been to the thighs and serious enough to compress the arteries, causing hematoma, and to produce symptoms, and the symptoms would have shown up within a few weeks.

The appellant...