Oscar Mayer Foods Corp. v. Labor and Industry Review Com'n

• Decision Date: 01 September 1988
• Docket Number: No. 88-0129,88-0129
• Citation: 146 Wis.2d 872,433 N.W.2d 33
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. OSCAR MAYER FOODS CORPORATION, a foreign corporation, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and Clayton J. Brechtl, Defendants- Respondents.
• Court: Wisconsin Court of Appeals

Page 33

433 N.W.2d 33

146 Wis.2d 872

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

OSCAR MAYER FOODS CORPORATION, a foreign corporation Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and Clayton J. Brechtl Defendants- Respondents.

No. 88-0129.

Court of Appeals of Wisconsin.

Sept. 1, 1988.

Circuit Court, Dane County.

AFFIRMED.

Appeal from an order of the circuit court for Dane county: Michael B. Torphy, Jr.

Before GARTZKE, P.J., and EICH and SUNDBY, JJ.

PER CURIAM.

Oscar Mayer Foods Corporation appeals from an order affirming the Labor and Industry Review Commission's award of worker's compensation benefits to Clayton Brechtl. The issues are whether LIRC's findings that Brechtl's physical disability was caused by his employment-related injury and that Brechtl has suffered a permanent total vocational disability are supported by credible and substantial evidence. We conclude the findings are supported by credible and substantial evidence and affirm.

Brechtl was employed in the production department of Oscar Mayer for over thirty-eight years. He was injured at work on October 16, 1979 when he struck his forehead on an overhead pipe while driving a jeep. He suffered contusions and fractures of the head, wrist and left coccygeal area, and an acute left side low back strain.

Brechtl returned to work on January 2, 1980 on light duty. He was unable to work for more than one-half hour without lying down. He stopped working on January 14, 1980 and was temporarily totally disabled. He returned to light duty work on March 31, 1980. His back and hip pain worsened, and he elected to take early retirement September 12, 1980.

Brechtl applied for worker's compensation benefits. The hearing examiners found that Brechtl suffered two distinct, permanent injuries: a chronic trochaneric bursitus resulting in a ten percent permanent partial disability of the left lower extremity at the hip compared to amputation at that joint, and a nonscheduled injury to the lower back, resulting in a permanent impairment of twenty percent of the body as a whole. The examiners further found that, considering all of the medical and vocational evidence, Brechtl was permanently and totally disabled as of September 12, 1980. LIRC adopted these findings and affirmed. The trial court concluded that substantial, credible evidence supported LIRC's order and affirmed.

Our scope of review of an award by LIRC in a worker's compensation case is the same as that of the circuit court. L & H Wrecking Co., Inc. v. LIRC, 114 Wis.2d 504, 508, 339 N.W.2d 344, 346 (Ct.App.1983). We may not set aside the order or award unless it "depends on any material and controverted finding of fact that is not supported by credible and substantial evidence." Sec. 102.23(6), Stats. We need only conclude that the evidence is sufficient to exclude speculation or conjecture. L & H Wrecking, 114 Wis.2d at 508, 339 N.W.2d at 346.

Oscar Mayer contends that no credible evidence exists to support the finding that Brechtl's work-related injury caused his present disability. It argues that Dr. Semian's expert opinion that the accident caused Brechtl's disability is insufficient because it was based on the fact that Brechtl had never complained of lower back discomfort before the accident and his symptoms had persisted over time. It contends that under Miller Rasmussen Ice & Coal Co. v. Industrial Comm., 263 Wis. 538, 57 N.W.2d 736 (1953), a temporal relationship between an injury and a disability is insufficient credible evidence on which to base a finding of causation.

In Miller Rasmussen, the Industrial Commission awarded permanent disability benefits to the applicant. The examining orthopedists could not find a pathological basis for his complaints. The psychiatric experts produced no credible evidence to attribute his psychoneurotic condition to the trauma. Id. at 544, 57 N.W.2d at 739.

The attorney general argued that the Commission could have disregarded the medical testimony and found a permanent disability from the facts that 1) the applicant had no pains before the accident; 2) he sustained an injury resulting in pain; and 3) subjective symptoms persisted after considerable treatment. Id. at 544-45, 57 N.W.2d at 740. The court rejected this argument because the inference was...