Opinion
December 9, 1955 —
January 10, 1956.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there were briefs by Welsh, Trowbridge, Wilmer Bills, and oral argument by Richard J. Gould, all of Green Bay.
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 respondents F. Butkiewicz Sons and the Maryland Casualty Company there was a brief and oral argument by Robert J. Merklein of Milwaukee.
The circuit court confirmed an order of the Industrial Commission determining liability for workmen's compensation and directing payment. A former employer of the disabled applicant has appealed.
Respondent Asher sustained an injury to his back October 19, 1951, while he was employed by appellant Giant Grip Manufacturing Company. This caused some temporary disability for which he was paid workmen's compensation. On December 22, 1952, while he was employed by respondent F. Butkiewicz Sons, he had a second accident and back injury. Disability followed. His claim for compensation was heard by the Industrial Commission which made findings of fact "that the necessity for such treatment and disability subsequent to December 22, 1952, was because of the combined effects of the injury in October, 1951, and the injury of December 22, 1952, and each such injury attributed to the extent of 50 per cent to such disability as the applicant suffered subsequent to December 22, 1952; that as a result of the applicant's condition he was temporarily totally disabled from December 22, 1952, to September 4, 1953, and suffered temporary partial disability to the extent of 25 per cent from September 4, 1953, inclusive, to the date of the last hearing on November 19, 1953; that the extent of further temporary partial disability or permanent disability cannot at this time be determined, and such question will be reserved for further determination by the commission as the facts might appear." There was a further "finding of fact" that the respective employers and insurance carriers are liable in 50-50 proportions for disability compensation and the costs of treatment from December 22, 1952, including such compensation and costs as become payable hereafter. The order directed the payment of accrued compensation to Asher and reimbursement by Giant Grip Manufacturing Company to F. Butkiewicz Sons of one half the payments which Butkiewicz Sons had already made.
Giant Grip Manufacturing Company brought this action in the circuit court for Dane county to review the findings, order, and award. Its complaint alleged that the evidence did not support the finding that the combined effects of the two injuries "attributed" to the extent of 50 per cent each to the disability following December 22, 1952, nor did the evidence support the finding that the two employers and insurance companies are each liable for 50 per cent of past and future compensation and cost of treatment; and the complaint further alleges that the findings of fact do not support the award. The latter claim of error was not pursued on the appeal. The judgment of the circuit court confirmed the commission's order.
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.
Dr. 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. . . .
" 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. . . .
"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 50 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 more likely and I feel that both incidents share about 50 per cent, as to his present condition, because of the weakness that existed following the first injury."
The record shows that at other times he testified to like effect.
In South Side R. M. Co., v. Industrial Comm. (1948), 252 Wis. 403, 31 N.W.2d 577, and in Merton Lumber Co. v. Industrial Comm. (1951), 260 Wis. 109, 50 N.W.2d 42, we held that due process of law demanded that findings of fact be based on evidence of record and without such evidence the commission exceeded its jurisdiction in making a finding. Counsel for appellants remind us that counsel for the commission, contending for a different rule in the Merton Case, supra, argued that to insist on such a requirement was to demand the impossible, for a credible medical witness would not venture to apportion the cause of disability with sufficient certainty among successive accidents.
It is clear from the present record that counsel underestimated the daring of doctors and the credulity of commissions. Testimony apportioning the cause or causes of Asher's disability was given by Dr. Winter, the commission found it credible, and the commission's finding of fact conforming to the testimony must be sustained.
Appellants submit that an affirmance of the judgment destroys the salutary rule of M. M. Realty Co. v. Industrial Comm. (1954), 267 Wis. 52, 64 N.W.2d 413. We do not agree. In that case there was no finding that disability was caused in any proportions by different accidents. We are unable to see where what was said there is affected by the present decision.
By the Court. — Judgment affirmed.