Giant Grip Mfg. Co. v. Industrial Commission

• Decision Date: 10 January 1956
• Citation: 271 Wis. 583,74 N.W.2d 182
• Parties: GIANT GRIP MFG. CO. et al., Appellants, v. INDUSTRIAL COMMISSION and Lawrence Asher et al., Respondents.
• Court: Wisconsin Supreme Court

Page 182

74 N.W.2d 182

271 Wis. 583

GIANT GRIP MFG. CO. et al., Appellants, v. INDUSTRIAL COMMISSION and Lawrence Asher et al., Respondents.

Supreme Court of Wisconsin.

Jan. 10, 1956.

Rehearing Denied March 6, 1956.

Welsh, Trowbridge, Wilmer & Bills, Richard J. Gould, Green Bay, for appellants.

Vernon W. Thomson, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for Industrial Commission.

Robert J. Merklein, Milwaukee, for Butkiewicz & Sons and Maryland Casualty Co.

BROWN, Justice.

The so-called finding that each employer is liable for one-half of the compensation and cost of treatment is really a conclusion of law, but one which necessarily results from a finding that the disability is caused by both accidents in equal shares, if that finding is valid.

The finding that each accident was 50 per cent of the cause of the disability commencing December 22, 1952, is a true finding of fact, and we must sustain it if the record shows credible evidence to support it. 'The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive; * * *.' Sec. 102.23, Stats. The extent and cause of a disability are often, as here, questions of medical fact, properly the subject of expert testimony. We have repeatedly said that it is the function of the Industrial Commission to evaluate medical testimony and determine its weight, and the commission's finding on disputed medical testimony is conclusive. Keller v. Industrial Comm., 1955, 271 Wis. 225, 229, 72 N.W.2d 740, and cases there cited.

A Doctor Winter testified for Asher as follows:

'Q. Well, what is your opinion, then Doctor? Is it, can you state, to a reasonable probability, whether or not both incidents were a factor or whether just one of them was a factor in the ultimate protrusion? A. Well, I believe that I would have to say that both incidents were a factor.

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'Q. I don't know whether you have answered this question, Doctor, but you have testified that you felt that both incidents were a factor in the present disability? A. Yes.

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'The Examiner: Well, I think that the doctor has probably answered. My question was as to the causative factor and the doctor said that, considering that, he would also consider the severity of the incident. How did you mean your answer to be, Doctor? A. I meant that, in breaking it down, I would consider the causative factors about fifty per cent each, despite the fact that this man was able to work. In other words, it was my opinion that he had had a previous disc protrusion, that is, he had a disc protrusion at the time of the injury on October 19, 1951, and that, following that, the anatomy is not normal, a second protrusion is...