Reich v. Industrial Commission
| Decision Date | 29 October 1968 |
| Parties | Elsie REICH, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Wisconsin (now Dept. of I.L.H.R.), Defendant-Appellant, Thiele Sausage Co., et al., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., and Gordon Samuelsen, Asst. Atty. Gen., Madison, for defendant-appellant.
Habush, Gillick, Habush & Davis, Milwaukee, for plaintiff-respondent.
Hart, Kraege, Wightman, Bieber & Thurow, Madison, for defendants-respondents.
Three issues are presented on this appeal:
(1) Whether there is credible evidence to support a commission finding that the incidents of November 13 and November 19, 1964, were only 'allleged' to have taken place.
(2) Assuming the incidents did take place as alleged, is there credible evidence to support a commission finding that 'the alleged incidents of November 13, 1964 and November 19, 1964, were not adequate producing causes of applicant's back condition; that the applicant's back condition was not caused by, aggravated by, or related to her employment.'
(3) Whether the commission properly applied the legal standards set forth in Brown v. Industrial Comm., 1 Lewellyn v. ILHR Dept., 2 and other related cases.
The first two issues raised on this appeal present this court with the question of whether there is credible evidence in the record to support the commission's findings. In Indianhead Truck Lines, Inc. v. Industrial Comm. 3 this court stated that, 'If credible evidence exists in support of the commission's findings, such findings are conclusive.' 4
'The rule is that this court will affirm a finding of fact of the commission, unless such finding is clearly against all the credible testimony or so inherently unreasonable as not to be entitled to any weight' 5 Where the evidence is sufficient to raise a legitimate doubt in the mind of the commission, as to facts necessary to establish a claim, it is the duty of the commission to deny compensation. 6
However, as pointed out in Richardson v. Industrial Comm., 7 this does not mean that any doubt is a legitimate doubt just because the commission chooses to entertain it.
'* * * While the applicant has the burden to prove his facts to the satisfaction of the Commission, the rule does not permit the Commission to exercise its judgment arbitrarily and capriciously.' 8
9
Is there credible evidence in the record to support a commission finding that Elsie Reich did not sustain injury to her back while employed on November 13th and 19th of 1964, i.e., that these incidents were only 'alleged' to have happened?
At the outset, appellant points out that the commission alone has the power and authority to weigh the evidencd and to determine the credibility of the witnesses before arriving at its decision. 10
It is the appellant's contention that the record reveals credible evidence in the form of applicant's inconsistent testimony (much of it growing out of Mrs. Reich's version of what happened as told before and at the hearing) that justifies the commission's finding on this issue. A discussion of the alleged inconsistencies follows:
Mrs. Reich.
(a) At the hearing on June 8, 1965, Mrs. Reich testified that on November 13, 1964, she slipped while working. She stated that, 'I twisted around and I tried to get hold of something, and I grabbed the wall so I did not fall down.' Appellant points out that Mrs. Reich's signed statement to the insurance company indicated that she did not recall twisting. The statement reads, in part:
Appellant also points out that the applicant did not mention this incident to her employer.
(b) Mrs. Reich also testified at the compensation hearing that on November 19, 1964, while carrying between 20 to 30 pounds of meat loaf pans she had to go through a narrow space between a machine and a truck. To go through this space she had to turn sideways and carry the pans with her right arm extended at shoulder height and her left arm across her body. She testified that she could not stand the pain and had to drop the pans.
Appellant points out that this incident was never reported to the employer, the inference being that if it was not reported it never happened. In applicant's statement to the insurance adjuster she stated, 'I didn't report this to anyone at work.'
However, on cross-examination at the hearing applicant was asked: 11
'Q. What did you mean here, mrs. Reich, when you stated, Did you report it to your foreman or didn't you? A. I just told him, What I understand on the report, it's to go to the office and report this.
'Q. You told the foreman simply you were going home? A. I said, 'I can't work any more' and he saw it, I couldn't work any more. I told him, 'I have to go home,' and he said, 'Yes."
'Q. Now, you indicated that at the time of this incident with the pans you were carrying pans in accordion fashion, with your right arm extended, going between this machine and the hand truck and you felt pain so bad you had to drop the pans; is that correct? A. Yes.
However, on redirect examination, the applicant testified:
'Q. Mrs. Reich, you testified that before going home on the 19th you said something to the foreman? A. Yes.
'Q. This is important that all of us understand exactly what you said to the foreman at that time. Will you tell us this exactly as you can recall what you said to him? A. Well, I said, 'Hans, I have to go home because I think I hurt my back."
The attorney general argues that when the written statement of a witness is inconsistent with his later testimony, the department may rely on the statement and reject the testimony on the theory 'that the more recent the event, the fresher and more accurate the memory.' 12
Applicant persuasively argues, however, that the entire record reveals that she considered reporting to mean notification to the office, and thatTherefore, her statements are not inconsistent and stand unrebutted. Furthermore, the foreman was not called as a witness--therefore applicant argues that her testimony stands as a fact. 13
(c) Appellant points out that applicant's signed statement to the insurance adjuster did not mention the 'pan incident' of November 19, 1964. Her statement reads:
However, on cross-examination at the hearing Mrs. Reich testified that she told the adjuster about the incident.
'Q. Do you recall whether or not you told the adjuster about this incident with the pans? A. I told him and he said, 'That's not important any more,' and he asked me if he should put it down and I said, 'I don't know.' I think we should put it down but he says it's not important any more.
The attorney general again argues that Revels v. Industrial Comm. 14 entitles the commission to reject applicant's hearing testimony with regard to the 'pan incident' because the earlier statement made no mention of it. However, in Revels the court was faced with a situation where earlier written statements conflicted with later hearing testimony. Arguably, however, there is no conflict here between the testimony and the statement but rather a situation where the earlier statement was not complete. It mentioned that applicant had to go home on November 19, 1964, because of pain, but it did not say what caused the pain. Furthermore, like the foreman, the insurance adjuster was not called to rebut Mrs. Reich's version of the conversation that went on between her and the adjuster.
(d) Appellant points out that claimant did not give a history of the November 13, and November 19, 1964, incidents when she entered the hospital. There is no evidence in the record that the hospital inquired as to the cause of pain. Mrs. Reich testified that no one asked her. The hospital records read as follows:
Therefore, while the records refer to 'carrying heavy loads' at the hearing Mrs. Reich testified to the precise incidents of November 13 and...
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