Summary
In State v. Industrial Comm. (1956), 272 Wis. 409, 442, 76 N.W.2d 362, the state claimed that the commission had failed to review the evidence because the synopses omitted reference to certain portions of the testimony.
Summary of this case from Matayo v. Industrial CommOpinion
February 10, 1956 —
April 3, 1956.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent Industrial Commission there was a brief by Edwin M. Wilkie, special counsel, joined in by Hebert Smith of Tomahawk, for respondent Mrs. Leland N. Fields, and oral argument by Mr. Wilkie and Mr. John E. Smith.
Action instituted by the plaintiff state of Wisconsin pursuant to sec. 102.23, Stats., against the defendants Industrial Commission and Mrs. Leland N. Fields to review an interlocutory order of said commission directing the payment by the state of workmen's compensation death benefits and medical expenses to Mrs. Fields because of the death of her husband while in state service.
Leland N. Fields, age fifty-one at the time of his death on January 28, 1953, had been employed by the conservation department for thirteen or fourteen years. For the past five years preceding his death he was employed by the game division of the department trapping, transporting, and planting beaver, removing beaver dams, and occasionally fighting forest fires. He was a man weighing approximately 170 pounds, was 5 feet 7 inches tall, and was a very active outdoor man. He appeared to be in excellent health and had taken no time off for illness.
On January 28, 1953, Fields and a fellow employee, Morrison, walked about a mile on snowshoes to the site of a beaver dam which they intended to remove. Such dam was 50 feet long and three feet high. The pieces of saplings of which the dam was largely composed were imbedded in ice. The removal of the dam under such conditions required unusual physical exertion on the part of Fields and Morrison. Morrison testified it was "like pulling a rope out of frozen ice" and required a man to exert everything he had. While they had done such work in previous winters, this occasion was the first time they had attempted it in the winter season of 1952-1953. This was clearly the most strenuous work Fields had done for some time.
Upon the morning in question Morrison worked as hard as he could for ten minutes straight and that was all he could stand. Fields then spelled Morrison off and worked about ten minutes when Morrison asked him if he should take over and Fields said, "Sure, I'm all in," whereupon Morrison took over at which time Fields said, "Gee, I feel sick all of a sudden." Morrison then said, "Maybe we better quit and leave it go," whereupon Fields replied, "No, I will feel better in a little while. I just feel a little sick." Morrison then commenced to tear a hole in the dam and Fields said, "Gee, I am getting sicker. I got a pain in the middle of my chest," whereupon Morrison walked over to him and said, "You had better go to shore," to which Fields replied, "O. K." Morrison took a couple more pulls and then started back off the dam without looking up in Fields' direction because he had to watch his step to avoid falling. Morrison got about half way across and looked up and saw Fields down on the ground at the edge of the dam in the snow. Morrison said that Fields was only conscious two or three minutes until he got off the dam and that when he got over to where Fields was on the ground the latter was unconscious.
Fields was carried out of the woods on an improvised stretcher with the men dogtrotting all the way. About an hour after they got him out a Dr. Huber came and pronounced Fields dead. The death certificate signed by Dr. Huber gave "1/2 hour" as the "Interval Between Onset and Death," and gave "Coronary Thrombosis" as the "Disease or condition directly leading to death." No postmortem examination was performed.
Mrs. Fields filed an application with the commission for death benefits under the Wisconsin Workmen's Compensation Act against the state, as employer, and a hearing was held thereon on March 17, 1953, before Examiner Taugher at the city of Tomahawk. Both the applicant and the state were represented by counsel. Testimony was adduced bringing out the facts hereinbefore set forth. Applicant's medical evidence consisted of a certified copy of the death certificate and the testimony of a Dr. Jarvis who had examined Fields on January 23, 1953, and had found no heart abnormality and no high blood pressure.
The state then called as an expert medical witness Dr. Norbert Enzer of Milwaukee, a heart specialist. He testified that in his opinion the deceased had died of coronary thrombosis and that Fields' employment "did not have anything to do causally with the coronary thrombosis." On cross-examination, Dr. Enzer stated that the work Fields had been doing immediately preceding his death was "in terms of the description here, a somewhat more strenuous piece of work than perhaps would be encountered in the run of an average day, but it was not the kind of strenuous activity which to me would cause an undue irreversible type of heart strain."
Under date of July 23, 1953, Examiner Taugher entered findings of fact, which stated "that there is no medical evidence that the deceased's death was caused or aggravated by his employment," and an order dismissing the application. The applicant timely moved for a review by the commission and the latter by order dated September 16, 1953, set aside the findings and order of the examiner. Such order of the commission recited that it had reviewed the entire record and had reached the conclusion "that in the interests of justice there should be further investigation by way of independent medical opinion by a physician to be appointed by the Industrial Commission."
Dr. Chester M. Kurtz, a heart specialist of Madison, was designated by the commission as the physician from whom such independent medical opinion should be obtained. At the direction of the commission, Mr. Harry A. Nelson, director of the workmen's compensation division of the commission, wrote a letter to Dr. Kurtz giving a synopsis of the facts of the case and requested the doctor's opinion on certain stated questions. Such request was phrased as follows:
"Please give your opinion as to the reasonable probability of causation of death, either by way of direct causation, acceleration, or precipitation by reason of the work done by deceased on the morning of the day of death. Based on the information given does it appear probable that death occurred by reason of coronary thrombosis? If not, in your opinion, what was the probable cause of death. Was death due to exertion of work as detailed? Is it probable or improbable that deceased would have died at the same time as lie did regardless of the work performed by him on that date? Was the work and exertion entailed a sufficient probable cause of death at the time it occurred ?
"Your opinion should be based on reasonable probabilities rather than on absolute certainty, and upon the facts which have been given, and in light of the further fact that autopsy findings are not available because of the absence of postmortem examination."
Pursuant to such request Dr. Kurtz submitted his opinion in the form of a letter addressed to Mr. Nelson, the pertinent portions of which are as follows:
"Undoubtedly this man had a certain amount of coronary disease which may or may not have manifested itself by the classical symptoms prior to January 28, 1953. Death would not necessarily have been due to coronary thrombosis which means the formation of a blood clot in the coronary artery. It could just as well have been due to one of the two following causes:
"(1) The unusual strain and physical effort may have resulted in the rupture of a small capillary within the wall of one of the coronary arteries and the resulting hemorrhage beneath the lining (intima) of the artery could have produced sufficient occlusion of that artery to cause a fatal infarct of the myocardium. This mechanism is well recognized and has been described by several pathologists, notably Wartman, who has found this mechanism to prevail as the underlying cause of coronary occlusion in nearly half of all cases examined at postmortem. In these instances there may or may not be time for a blood clot to form at the site of subintimal hemorrhage and hence the term `coronary thrombosis' may not be applicable. Nevertheless, it is just as serious and just as apt to result fatally as if a true thrombosis had occurred.
"(2) The severe exertion in the presence of coronary disease with inadequate circulation to the heart muscle could have resulted in an arrhythmia or irregular heart action of some type which might in the course of thirty minutes have developed into ventricular fibrillation which is always promptly fatal. This mode of death is well recognized in cases of this type and there are several instances in the literature in which electrocardiographic proof is available. On postmortem examination no blood clot is found in the coronary artery and if death occurs very early in the attack the pathologist may not be able to demonstrate a true infarct in the heart muscle. An infarct, as you know, is an area of heart muscle which, under the microscope, shows evidence of cell destruction as a result of interference with blood supply.
"To summarize, I would like to point out that a coronary thrombosis is probably the least likely mechanism in this case but there are two other possibilities, as described above, either of which might readily explain the sudden heart attack which occurred during the physical effort and which resulted in death thirty minutes later. In my opinion death was precipitated by the unusual physical exertion but, the heart must have been damaged to a certain extent prior to this time and the coronary sclerosis which must have been present was not of itself due to his work. There is no reason to believe that this man would have died at this time had he not been engaging in an unusually strenuous type of physical effort."
Under date of October 16, 1953, the commission sent copies of the foregoing letter of Dr. Kurtz to both the attorney for Mrs. Fields and to the assistant attorney general who had represented the state at the prior hearing, and notified such counsel that the report of Dr. Kurtz was being made a part of the record, and, if they desired to cross-examine Dr. Kurtz, the expense of producing Dr. Kurtz for cross-examination would be upon the party making the request. To this letter of the commission the assistant attorney general replied under date of October 23, 1953, as follows: "I am hereby requesting the privilege of cross-examining Dr. Kurtz on his report as independent examiner, and am also asking the privilege of introducing rebuttal testimony." Because of such request of the assistant attorney general, a further hearing was held before Examiner Gintz in the city of Madison on December 4, 1953, at which Dr. Kurtz was subjected to rigorous cross-examination by counsel for the state. Dr. Enzer also was recalled as a witness by the state and adhered to the opinion expressed by him at the first hearing. The state also called as an expert medical witness a Dr. Francis F. Rosenbaum of Milwaukee, another heart specialist, who expressed an opinion similar to that of Dr. Enzer.
Under date of March 9, 1954, the commission entered findings of fact whereby it was determined that the deceased's death occurred while he was performing services incidental to his employment and that the accident causing death arose out of the employment. Based upon such findings, an interlocutory order was entered granting benefits. The state thereafter instituted an action in circuit court for review. Judgment was rendered September 16, 1955, in such circuit court action confirming said interlocutory order of the commission. From such judgment the state has appealed.
The state advances the following contentions on this appeal:
(1) The commission acted without and in excess of its powers in appointing Dr. Kurtz as an independent medical examiner.
(2) Dr. Kurtz's opinion as to cause of death does not constitute credible evidence to support the commission's finding on that issue because Mr. Nelson's letter to the doctor did not set forth all of the essential facts.
(3) Dr. Kurtz's opinion as to cause of death does not constitute credible evidence because based upon speculation as brought out in the state's cross-examination of the doctor.
(4) The commission did not make such a review of the evidence as is required by statute.
In support of its first contention, the state maintains that sec. 102.17(1)(c), Stats., did not authorize the commission to request an opinion from Dr. Kurtz as an independent, impartial, medical examiner appointed by the commission. It is the position of the state that up to the point when such opinion was requested of Dr. Kurtz there was no "dispute" in the testimony, nor did the testimony raise any "doubt" as to liability which would warrant the appointment of an independent medical examiner. We find it unnecessary to pass on this contention inasmuch as the record clearly establishes that the state has waived any right to raise such question on this appeal. This is because the state never at any time while the proceedings were pending before the commission voiced any objection to Dr. Kurtz's report being made part of the record. An adequate opportunity was afforded the state to make such objection at the beginning of the second hearing held on December 4, 1953. At the opening of that hearing the examiner made the following statement on the record and asked the following question of both counsel for applicant and the state:
Sec. 102.17(1)(c), Stats., reads: Whenever the testimony presented at any bearing indicates a dispute, or is such as to create doubt, as to the extent or cause of disability or death, the commission may direct that the injured employee be examined or autopsy be performed, or an opinion of a physician be obtained without examination or autopsy, by an impartial, competent physician designated by the commission who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer. . . . The report of such examination shall be transmitted in writing to the commission and a copy thereof shall be furnished by the commission to each party who shall have an opportunity to rebut the same on further hearing.
"Let the record show that previous hearing was had March 17, 1953; that order was issued July 23 which was set aside by the commission on September 16, 1953. The report of Dr. Kurtz which is dated October 11, 1953, on the basis of independent medical examination, is a part of the record. The matter is now pending before the Industrial Commission as a body for cross-examination of Dr. Kurtz and for rebuttal of his report. Is that correct, gentlemen?"
Both counsel for the state and applicant answered the examiner's question in the affirmative and the assistant attorney general proceeded at once to call Dr. Kurtz for cross-examination. It was incumbent upon counsel for the state at that time to enter a formal objection on the record to the admissibility and competency of Dr. Kurtz's report, if the state desired to raise the issue that such medical report was not properly part of the record to be considered by the commission in making its findings and award. Instead, the assistant attorney general proceeded with the cross-examination of Dr. Kurtz, which failed to shake the opinion expressed by him in his report. We hold that this clearly constitutes a waiver and the admissibility of such report cannot now be questioned for the first time on appeal. Zweig v. Industrial Comm. (1955), 269 Wis. 324, 332, 333, 69 N.W.2d 440.
The medical report of Dr. Kurtz was based entirely upon the statement of facts appearing in Mr. Nelson's letter to the doctor requesting such report. In such letter Mr. Nelson correctly set forth the age, height, and weight of Fields and also stated that Fields was apparently in good health and active before January 28, 1953. This letter also reported that deceased had been examined on January 23, 1953, and nothing abnormal had been found as to his heart and blood pressure. The prior nature of Fields' work for the conservation department was described as follows:
"Applicant's job was that of a conservation warden and included investigation of `beaver complaints,' checking of hunters, picking up and setting traps, and `blowing' beaver dams, skinning and stretching beaver, making arrests of violators, repairing equipment, conducting correspondence, and other miscellaneous duties."
The letter further set forth an accurate description of all that Fields did on the morning of January 28, 1953. The state contends that the medical report of Dr. Kurtz does not constitute credible evidence upon which the commission could base a finding of causation between the physical exertion to which Fields' employment subjected him that morning and his fatal heart attack. The basis of such contention is that the statement of facts set forth in the Nelson letter was entirely inadequate and misleading. The specific complaint leveled against such statement of facts is that there was not narrated some of the testimony showing that Fields had been inured to hard outdoor physical exercise and work. After carefully reviewing those bits of testimony omitted from the statement of facts in the Nelson letter, which are set forth in the state's brief, we are of the opinion that they were merely cumulative in character to the facts stated in the letter. We find nothing misleading in such statement of facts and consider the same a fair synopsis of the material facts brought out in the testimony.
The second ground of the state's attack upon Dr. Kurtz's report is that the medical opinion stated in such report is mere speculation. Such opinion was based upon " reasonable probabilities," thus meeting the test of definiteness laid down in that leading Wisconsin case on medical-opinion evidence, Hallum v. Omro (1904), 122 Wis. 337, 341, 344, 99 N.W. 1051. It is the position of the state that the doctor under cross-examination admitted that, in stating his opinion based upon reasonable probabilities, he was dealing entirely in speculation.
This same contention was advanced in the trial court and is most adequately dealt with and completely answered in the memorandum decision of the learned trial judge, the late ALVIN C. REIS. Because all actions to review awards of the commission in workmen's compensation cases must be instituted in the circuit court for Dane county, Judge REIS became a specialist in this field of law during his nineteen years as judge of such court. of the hundreds of such cases coming before him, only a small fraction thereof were ever appealed to this court. Because of his vast experience in this branch of the law, the members of this court came to have great respect for his decisions in workmen's compensation cases. Not only were his memorandum decisions a source of enlightenment on the legal and factual issues presented, but we were often entertained by their sparkling language and sallies of brilliant wit. The following extract from Judge REIS' memorandum decision in the instant case is not only determinative of the issue now under consideration, but is also illustrative of the pungent style that was so characteristic of his written opinions:
"The angling with that word `speculative' is well illustrated in the transcript. Dr. Kurtz had stated his opinion that Fields' death was due to the physical strain to which he had been subjected — that this was reasonably probable, as a thousand doctors have testified with approval in other cases. But the state's attorney takes him through a course in linguistics:
"`Q. Now, just as a matter of semantics, what do you mean by "probability" and how would you distinguish "probability" from "possibility?" A. Probability is — implies something which is more likely. Possibility is perhaps less likely but still within the realm of possibility.
"`Q. Are both within the realm of speculation? A. Yes.
"`Q. So that when you say it's a "possibility" or "probability", you are speculating in either case, aren't you? A. Yes.'
"Such semantic gymnastics of cross-examination would ruin about every transcript of medical testimony that we have seen in nineteen years on the bench, if we are to assume, as the state does, that it annihilates Dr. Kurtz's testimony in the present case.
"The examiner sought to clear the muddy atmosphere which had been created. The following has its point:
"`The Examiner: Now, for the purpose of our testimony here this afternoon, you (referring to witness), of course, are aware of what we mean by "certainty." If something is true to a reasonable degree of certainty, why, you are quite positive of its being true. On the other hand, if you believe something may be true to a "possibility" it's quite doubtful. Now, we have "probability" in between there somewhere. You are probably better aware of the supreme court's actual definition of that than I am, Mr. Levitan, although I don't think it's even entirely clear by the supreme court. Now, "probability," of course, is in between possibility and certainty. I think it might still be speculative because it is not certain; but it is not just a guess as is a possibility.
"`The Witness: No. I think we would have to classify this as a strong probability on the basis of work which has been done and statistics which I can quote you if necessary, but I think it's much more than a possibility. I would prefer not to use the word "certainty." (Our italics.)'
"The doctor helped to explode this `speculation' chameleon when he emphasized strong probability on the basis of work which has been done and statistics which I can quote you if necessary.' That sounds expert; and, we say again, strong probability should be strong enough."
We turn now to the last contention advanced by the state, i. e., that the commission did not properly review the evidence as required by statute. The provisions of subs. (1) and (3), sec. 102.18, Stats., require that the findings and interlocutory order of the commission in the instant case be based upon a review of the evidence submitted. In Berg v. Industrial Comm. (1940), 236 Wis. 172, 180, 181, 294 N.W. 506, it was held that it is proper for the commission to base its award upon a typewritten memorandum, or synopsis, of the testimony prepared by the examiner before whom the testimony had been given where the shorthand notes of the reporter were not transcribed and filed until after the entering of the award. Such case further held that such procedure was not a denial of due process.
The United States supreme court had a similar problem presented in Morgan v. United States (1936), 298 U.S. 468, 56 Sup. Ct. 906, 80 L. Ed. 1288. The secretary of agriculture was empowered by act of congress to fix rates for stockyard services after conducting a "full hearing" in the matter. In an opinion by Mr. Chief justice HUGHES it was held that the statutory requirement of a "full hearing" made it mandatory that "the officer who makes the determinations [in that case the secretary of agriculture] must consider and appraise the evidence which justifies them." However, it was also held that such evidence might be taken by an examiner, and that evidence so taken "may be sifted and analyzed by competent subordinates," ( 298 U.S. 481).
In the instant case Examiners Taugher and Gintz prepared synopses of the testimony received at the respective hearings conducted by them upon Mrs. Fields' application. The two members of the commission who subscribed the commission's findings and interlocutory order on March 9, 1954, had read to them aloud in full these synopses, and also reviewed and considered the various exhibits. They did not have read to them the shorthand notes of the two reporters and such notes were not transcribed nor filed until sometime after the interlocutory order had been entered.
Such synopses prepared by Examiners Taugher and Gintz constitute part of the record in this case. It is urged by the state that such synopses are not "a fair and full statement of the essential testimony" as required by this court's opinion in Berg v. Industrial Comm., supra. In support of such contention the state's brief sets forth certain extracts of testimony which were not specifically covered in the examiners' synopses. This poses the question of what test should be employed in such a situation by a reviewing court in determining when it should vacate the commission's award and remand for further proceedings as authorized by sec. 102.24, Stats.
It seems to us that where, as in the instant case, the synopses of the testimony on which the commission relied in making its findings and order are attacked on the ground that certain specific testimony was not summarized in the synopses, the court should not vacate the award and remand for further proceedings, unless it is convinced that the omission was so prejudicial that it is likely the commission would have reached the opposite conclusion from that which it did if the synopses had set forth an adequate summary of the omitted testimony. Applying such test to the omitted testimony in the case at bar, we deem it highly unlikely that, if the synopses had summarized the same, the commission would have come to any other conclusion than it did. We believe that no useful purpose would be gained by setting forth the claimed omissions and the lengthy synopses in order to demonstrate the reasonableness of our conclusion that the omissions would not have been likely to have affected the commission's determination of the crucial issue of whether Fields' fatal heart attack was caused by his employment.
By the Court. — Judgment affirmed.
FAIRCHILD, C. J., dissents.