Miller Rasmussen Ice & Coal Co. v. Industrial Commission

• Decision Date: 31 March 1953
• Court: Wisconsin Supreme Court
• Parties: MILLER RASMUSSEN ICE & COAL CO. et al. v. INDUSTRIAL COMMISSION et al.

Page 736

57 N.W.2d 736

263 Wis. 538

MILLER RASMUSSEN ICE & COAL CO. et al. v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

March 31, 1953.

The proceeding resulting in the order involved on this appeal was held June 5, 1951. As a result of injuries sustained by respondent Edwin Edwards in September 1945, the commission, on a prior hearing, had awarded respondent total temporary disability benefits to January 16, 1948. After the hearing of June 5, 1951, the commission issued its order of July 24, 1951, awarding permanent disability benefits from January 16, 1948. There was a review of the order by the circuit court of Dane county, and that court, on August 14, 1952, entered judgment in favor of the Industrial Commission and Edwin Edwards and against the Miller Rasmussen Ice & Coal Co. and Continental Casualty Co., confirming in all respects the order of the Industrial Commission dated July 24, 1951, asserting that Edwin Edwards was totally disabled from January 16, 1948 to July 1, 1951, and that he will remain totally disabled for an indefinite period in the future as a result of an injury sustained while in the employ of the Miller Rasmussen Ice & Coal Co., and ordering that within ten days from the date of said order plaintiff pay to claimant the sum of $4670.64, and, beginning August 1, 1951 and monthly thereafter, plaintiff pay to claimant the sum of $112.24 until further order of the commission. The employer and his insurance carrier appeal. The material facts will be stated in the opinion.

Welsh, Trowbridge, Wilmer & Bills, Green Bay, for appellants.

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

FAIRCHILD, Justice.

While this court has recognized that the members of the Industrial Commission are expert triers of fact and has 'deferred to this expertness in situations involving an appraisal of the convincing power of expert testimony, and have sustained the power of the commission to reject it when contrary to the commission's expert knowledge on the subject,' it is not to be understood, however, that we can or should abdicate this court's function of reviewing the record before the commission to ascertain whether there is evidence to support it. F. A. McDonald Co. v. Industrial Comm., 250 Wis. 134, 137, 26 N.W.2d 165. In the opinion in the case just cited, Mr. Justice Wickhem said: 'Carried to its logical conclusion, the contention of the commission would require such an abdication in all cases involving expert knowledge and opinion.' The principles stated in the McDonald case afford a guide to the solution of the problem now before us.

The following facts are before us: On September 18, 1945, Edwin A. Edwards was injured while in the employ of Miller Rasmussen Ice & Coal Co. when he was squeezed between the fender of the truck he was working on and the back end of another truck pulling out of its parking place. The injury was minor, the only objective finding being abrasions on both hips. Edwards continued to work until October 6, 1945. Then followed intermittent periods of hospitalization, examination, treatment and employment until December 5, 1946. Edwards did nothing by way of employment from December 5, 1946 until March 1, 1948, when the Rehabilitation Department set him up in a shoe repair shop. He was fully examined by orthopedic specialists and psychiatrists. In addition, independent medical examinations were had no two separate occasions at the request of the commission, by Dr. Herman Wirka, orthopedist at the State of Wisconsin General Hospital; and also on two separate occasions psychiatric examinations were made by Dr. Mabel Masten, physician and professor of neuropsychiatry at the Wisconsin General Hospital. Five hearings were held before three different examiners of the commission over a period of five years. The fifth and final hearing was held June 5, 1951. The commission made its own findings and issued its order of July 1951, referred to in the statement of facts.

If the commission's finding of total disability is to be sustained, the reports of the psychiatrist, on which it is based, must show to a reasonable probability or certainty that the trauma of 1945 so upset Edwards' basic psychoneurotic personality that since September 18, 1945 he has been unable to perform any useful employment except for intermittent periods in 1945 and 1946.

The pertinent portions of Dr. Masten's report of 1947 in relation to her psychiatric examination of Edwards read as follows:

'His early years were marked by insecurity and lead to a conduct disorder. He has been in several penal institutions in the state of Illinois. He went on probation for his last offense in 1929. He was released from probation in 1932 and denies that there has been any subsequent misconduct. Two automobile thefts resulted in prison terms. Part of his early life was spent with grandparents, and for a time he was in an institution for dependent children, and from the age of 15 years on he was on his own. He married at 19 years and now has eight children. He had had many jobs and has always had trouble making an income adequate for his growing family.

'* * * His attitude toward his disability and his future employability is not healthy. He accepts his condition as irremedial and is ready to allow his wife to take over the responsibilities for wage earning while he plans to take her place in the home. He is an immature person. These factors will make rehabilitation difficult. With no objective medical and social history, I cannot make a definitive psychiatric diagnosis, though I have no hesitation in saying that he is not psychotic and that he is a neurotic type, but without objective data I cannot call him a constitutional psychopath as the history of misconduct suggests. The negative x-ray studies do not confirm my original clinical impression of arthritis and disc disease; however, the negative findings do not entirely rule out the disc disease for it is difficult to demonstrate a midline herniation which the bilateral radiation of pain in his legs suggests. I must admit, however, that the negative x-ray findings and the poor personality structure favors a diagnosis of a psychoneurotic reaction to trauma. I think we can say with safety that he is not malingering, though I know you appreciate that on a scientific basis the latter is a hard diagnosis to make either in the negative or in the positive * * *.'

Dr. Masten's report dated January 29, 1951, contains the following opinion:

'Psychologic examination gave no evidence of psychotic disorder nor was there anything to explain his behavior on an organic basis. The Wechsler Bellevue Intelligence test indicates an intelligence quotient of 122, which indicates superior intelligence. It became obvious that he is not making use of his native endowment and that he is operating under a severe handicap of psychoneurosis. His early social history suggests constitutional inadequacy. Emotional immaturity and dependency appear to have rendered him unfit to face the responsibility of his growing family consisting of wife and nine children. The accident has provided a defense against facing the demands of reality. There may be some degree of malingering. This commonly exists in many psychoneurotic traumatic reactions, but primarily his condition is the result of personality disorder and neurotic behavior. * * *'

Analyzing the 1947 report, we find that Dr. Masten was 'unable to make a definitive psychiatric diagnosis,' although in broad terms the report states that applicant is a 'neurotic type.' Later she says that she can say 'with safety that he is not malingering,' but she immediately adds that 'on a scientific basis, the latter is a hard diagnosis to make either in the negative or in the positive.' The statement that claimant's poor personality structure 'favors a diagnosis of psychoneurotic reaction to trauma' points merely to a possibility, and there is no statement in the report which with reasonable certainty or probability states that Edwards wa suffering from traumatic psychoneurosis.

In the report of 1951 Dr. Masten emphasizes applicant's psychoneurosis, emotional immaturity and dependency and his early social history suggesting constitutional inadequacy. The only mention made of psychoneurotic traumatic reactions is in a general statement that malingering commonly exists in such cases. She does not associate Mr. Edwards with traumatic psychoneurosis, but says that 'his condition is the result of personality disorder and neurotic behavior beyond his understanding.' She does not say that such neurotic behavior was due to trauma. The report shows and the record shows that applicant had trouble facing the demands of reality long before the accident occurred, and there is nothing to show to a reasonable certainty or probability that malingering was not behind the claimant's using the accident as a 'defense against facing the demands of reality,' and it is admitted in this report that 'there may be some malingering.'

On consideration of the two above reports, we find that uncertainties so completely predominate that it is understandable that no basis has been found for an opinion as to a reasonable certainty of trauma causing applicant's maladjustment. As said in F. A. McDonald Co. v. Industrial Comm. supra, with respect to the medical report there: '[It] is nothing more than a statement that there might be a * * * total disability having a causal relation to the accident. This is addressed to the possibilities and not the probabilities of the situation. * * * So far as the commission's finding of permanent disability is based upon the medical report * * *, it must be considered to be just as speculative as the report itself.'

Other testimony which supports a finding of malingering is that of Dr. Wirka and Dr. James R. Hurley, a specialist in psychiatry and neurology. In his 1951 report, Dr. Wirka says: 'There is...