Opinion
January 8, 1954 —
February 2, 1954.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellants there was a brief by Quarles, Spence Quarles, attorneys, and Edward H. Borgelt and Richard S. Gibbs of counsel, all of Milwaukee, and oral argument by Mr. Gibbs.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent Myrtle Johnson there was a brief by Brennan, Brennan Brennan of Milwaukee, and oral argument by Martin J. Brennan.
This action was brought in the circuit court for Dane county to review an order of the Industrial Commission directing payment of compensation benefits to the respondent, Mrs. Myrtle Johnson. The award was affirmed by judgment entered on June 5, 1953. The employer and its insurance carrier appeal.
For a period of about five months prior to August 10, 1949, Mrs. Johnson had been an employee of Brouwer Realty Company. On that date she was operating an elevator in the course of her employment. Some employees of Brouwer Shoe Company, a tenant of Brouwer Realty Company, had placed in the elevator, for removal to the basement of the building, a table top weighing about 31 pounds and the legs of which weighed about five pounds. One of these table legs fell and struck her on the top of the head. As a result she claims to have been injured.
Her testimony also shows that she remained on her job for about one and one-half hours after the injury. On the next day she reported for work but left to see her physician because of a headache. A few days later her attending physician, Dr. Huber, because of the complaint she made, suggested that she enter a hospital for observation. She followed his recommendation and remained there for two weeks. Upon her release she did not return to work because, as she testified, her head hurt and she was nauseated and dizzy at times. Dr. Huber, who treated her September 2, 1949, testified that when she was discharged from the hospital and for some time before, she had had no dizzy spells or headaches and that it is his opinion that she could have returned to work at any time.
On October 19, 1949, she had an operation for a goiter condition and on December 13, 1949, another operation to relieve her of a female condition. She had been nervous before the goiter operation but denied that she had had headaches. She testified that since the accident she had suffered from headaches practically continuously and that she did not feel she was able to work "because I get dizzy at times and get those terrible headaches."
The examiner found that as a result of the injury she was temporarily totally disabled for six weeks and she was paid compensation for that period; he also found that she had suffered no permanent partial disability.
Mrs. Johnson moved for a review by the commission of the examiner's findings.
The commission on April 17, 1951, set aside the examiner's findings and made and entered its own findings and order whereby it found that as a result of her injury she was temporarily totally disabled as of the time of hearing on January 25, 1951, and that she was entitled to compensation for seventy-six weeks and one day; that disability and necessity for treatment following that date could not be determined. An interlocutory order directing payment was made. This action was commenced in the circuit court on May 3, 1951.
The only expert called by the applicant was Dr. J. R. Dundon. He first saw her on July 20, 1950. He testified as to subjective symptoms which he had found and to the effect that she told him at his first examination that "there was no unconsciousness right after the injury, but nausea, vomiting, and headaches, and three days later dizziness;" that this lady showed "signs of cranial injury, in asymmetrical twelfth nerve enervation of the tongue with some hyperreflexia of the right arm;" that he prescribed what he called a "blood maker;" that the blow which she had described would cause the headaches of which she complained; that he had no opinion as to how long they would continue but they might continue for several years; that in his opinion she could not work at the time of the hearing. In a letter written July 25, 1950, and addressed to Mrs. Johnson's attorney, Dr. Dundon stated that right after the injury there was nausea, vomiting, and headaches and three days later dizziness; that his observation convinced him that she was suffering much pain. In another letter addressed to her attorney and dated October 14, 1950, Dundon stated that when he examined her a week earlier he found her to be no better objectively and subjectively; that her headaches were still severe and associated with visual disturbance.
Upon his cross-examination Dr. Dundon testified that he is a general practitioner and that he had referred Mrs. Johnson to Dr. Kiefer, a neurological surgeon, and that he had referred her to him because he felt that said doctor was better qualified than he to make a neurological examination; he agreed with Dr. Kiefer as to the nonexistence of certain symptoms to which his attention was called.
Upon redirect examination, Dr. Dundon testified again that the blow to Mrs. Johnson's head as it had been described to him by her could be an adequate cause for her headaches, and that an opinion as to the existing headaches was based entirely upon her statement that she suffered them.
There seems to be no dispute that when Mrs. Johnson was injured she suffered a mild brain concussion.
The employer suggests that if it had not already done so, this court in reviewing the findings of the Industrial Commission should adopt the rule which incorporates the spirit of the Administrative Procedure Act, ch. 227, Stats., which requires that an administrative agency consider the entire record in arriving at its determination of fact. It has long been the rule of this court that findings of the Industrial Commission must be sustained if there is any credible evidence to support them. Gant v. Industrial Comm. (1953), 263 Wis. 64, 56 N.W.2d 525. The test is whether there is any credible evidence which, if unexplained, would support the commission's findings. Fruit Boat Market v. Industrial Comm. (1953), 264 Wis. 304, 58 N.W.2d 689; Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 258 N.W. 336.
The employer cites Motor Transport Co. v. Public Service Comm. (1953), 263 Wis. 31, 56 N.W.2d 548, as indicating that this court therein adopted a new rule with respect to court review of findings of the Industrial Commission in workmen's compensation cases. We do not consider that which was said in the Motor Transport Co. Case, supra, on this question laid down any new principle but merely adhered to that which had been said on the subject by Mr. Chief Justice ROSENBERRY in Hills Dry Goods Co. v. Industrial Comm., supra, as we interpreted the same. In both the Motor Transport Co. and Hills Dry Goods Co. Cases it was expressly declared that this court in reviewing findings of the Industrial Commission in workmen's compensation cases does not pass upon the weight of the evidence or the credibility of witnesses. It should be observed also that the rule with respect to the findings of the Industrial Commission in matters arising out of the Workmen's Compensation Act and as the court had consistently declared it, was restated and reaffirmed in the Gant Case, supra, and in the Fruit Boat Market Case, supra.
We are required here to ascertain whether there is any credible evidence to support the commission's findings. Two physicians testified on behalf of the employer. The reports of two other physicians offered by it were also received in evidence. Their conclusion was contrary to that of Dr. Dundon who testified on behalf of the employee. We consider that unless Dr. Dundon's testimony is to be rejected, the same, coupled with that of Mrs. Johnson, is sufficient under the rule to sustain the finding. Mrs. Johnson had testified that when she was struck she became nauseated and dizzy and felt that she was going to pass out and that her head hurt her and she thought it was bleeding and swollen. She said there was a bump on her head and that it "hurts terrible." The credibility of expert witnesses in proceedings under the Workmen's Compensation Act is for the commission to determine. General A. F. L. Assur. Corp. v. Industrial Comm. (1937), 223 Wis. 635, 271 N.W. 385.
It is the function of the commission to evaluate medical testimony and decide the weight of same. Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 258 N.W. 336.
The commission's finding on disputed medical testimony is conclusive. Milwaukee E. R. T. Co. v. Industrial Comm. (1951), 258 Wis. 466, 46 N.W.2d 198.
The employer contends that Dr. Dundon's testimony has no probative force because his conclusion is based, in part at least, upon his assumption that vomiting followed immediately after the accident and that in fact it does not appear that it did.
Mrs. Johnson testified that she became nauseated; she did not testify that she had vomited. Dr. Dundon testified that when he first examined her she told him that she had suffered "nausea, vomiting, and headaches." The statement was made by her for the purpose of treatment and was properly received in evidence. Keller v. Gilman, (1896), 93 Wis. 9, 66 N.W. 800; Curran v. A. H. Stange Co. (1898), 98 Wis. 598, 74 N.W. 377. It follows, of course, that if such testimony was competent then it was proper for the physician to consider it as a basis in part for his conclusion. In any event, and assuming that the doctor should not have taken into consideration the fact that there had been a period of vomiting, it does not appear from the record that vomiting is a symptom necessarily present to support the doctor's conclusion. According to Webster's dictionary "nausea is any sickness of the stomach, like seasickness, with a desire to vomit." The commission which reviewed the testimony could well determine that the "desire" was the important symptom, whether or not the actual act of vomiting was accomplished. This discrepancy, if there is one, is not sufficient to impeach the finding.
While it is possible that this court may have arrived at a determination different than that of the Industrial Commission as to the facts herein, nevertheless it is the rule that the supreme court cannot disturb a finding of fact by the Industrial Commission merely because it is against the preponderance of evidence in the opinion of the supreme court. Winter v. Industrial Comm. (1931), 205 Wis. 246, 237 N.W. 106, and Spenle v. Industrial Comm. (1939), 232 Wis. 506, 287 N.W. 690.
The employer contends that a letter written by Harry A. Nelson, director of workmen's compensation, Industrial Commission, to the attorneys for the parties indicates that the commission had improperly shifted the burden of proof from the employee to the employer. The letter was written in response to the petition of the employee for a review of the examiner's findings and states amongst other things, "it would appear that there is no testimony in the record negativing disability as occasioned by injury. For this reason the commission is setting aside the order." While the letter, standing alone, might not suggest the approach required under the circumstances, nevertheless the formal findings of the commission disclose that it had the correct rule in mind when it found that Mrs. Johnson was temporarily totally disabled at the time of hearing. The letter does not disclose that the commission acted otherwise than properly in its determination. We are required to assume, unless there is affirmative proof to the contrary, that the commission acted regularly as to all matters and pursuant to the rules of law and proper procedures in its determination.
By the Court. — Judgment affirmed.