271 N.W.2d 142 | Wis. Ct. App. | 1978
This is an appeal from a circuit court judgment reversing an order of the Department of Industry, Labor & Human Relations. The department had affirmed its hearing examiners in dismissing claimant’s application for worker’s compensation benefits.
The respondent Bumpas (claimant), a 44 year old truck driver, filed the application on March 11, 1974, alleging that on January 28, 1974, he slipped at work and injured his left knee. He indicated on the application that he had reported this accident to his employer both orally and in writing.
Claimant testified that on January 28, 1974, he slipped on some ice in the employer’s parking lot while getting into his car, twisted his left knee, and experienced immediate severe pain. He stated several times, both on direct and on cross-examination, that he had never experienced pain or difficulty in his left knee prior to this time. He testified that this incident was witnessed by a co-employee, and that immediately after lunch he reported the injury to the morning dispatcher. Though he continued to work throughout the balance of the day, the pain in his left knee continued to bother him, and the next day he commenced a previously unscheduled two week vacation during which he visited his parents in An-tigo and “rested.” On cross-examination claimant testified that he held a pilot’s license, and that he also flew a private plane out of Mitchell Field, Milwaukee, during that same two week period.
Though claimant testified both on direct and cross-examination that he did not see any doctor or seek any medical treatment for his injury until his return from vacation on February 15 or 16, Dr. Foster’s WC-16-B report, which is dated January 12, 1976, contains the following reference: “1-29-74 Initial examination and X-ray, bilateral knees.”
“This 43 year old gentleman has had increasing pain in his left knee over the past several months and at the present time has had to discontinue several of his pass times [sic] because he is unable to utilize the left leg. When he stands on it he feels a sharp pain frequently and there will be a catching in the knee causing his knee to give out. He has x-ray evidence of what appears to be loose bodies and spurs within the left knee which is probably accounting for his problem. The patient has had surgery on his right knee in the past and has had four operative procedures, the last one two years ago and is doing quite well with the right knee.” (Emphasis supplied.)
Though another section of this report contains a clearly erroneous reference to the patient’s “pain in his right knee,” the report concludes with Dr. Foster’s “impression” of “ [d] egenerative arthritis with loose bodies and possible torn meniscus, knee, left.”
The hospital records contain one further report subscribed by Dr. Foster which bears a notation that it was dictated on April 27, 1974.
*810 “This 43-year-old gentleman entered the hospital for treatment of pain in his left knee. He, for the past several months, has had discomfort in his knee with increasing pains recently. There has been some catching in his knee, and when he is walking it will give out on him.” (Emphasis supplied.)
In neither of these two reports, nor in any of the other hospital and medical records, is there reference to an accident on January 28, 1974, or to a traumatic etiology of the left knee problems found by Dr. Foster in February. Claimant testified on cross-examination that he did not remember what he told the hospital authorities on his admission to the hospital, but that he did remember telling Dr. Foster about slipping on the ice at work.
The co-employee testified that, though he could not remember the exact day or month, he witnessed claimant slip in the parking lot during the winter of 1974. He testified that he had either failed to reveal the incident to the company’s insurance adjuster or had told the adjuster that he had not seen claimant slip because he “didn’t want to get involved,” and because he believed that if he had told him of the fall in the parking lot claimant would not be eligible for worker’s compensation benefits. The circuit court found that the co-worker had impeached himself and ignored this testimony in reaching its decision.
At the August 2, 1976 hearing, the only witness was Dr. Coles, who examined claimant in October, 1975, at the request of the employer. His written narrative report dated November 11, 1975, was also received into evidence. He testified that he had reviewed the medical reports and hospital records, and that based upon the examination and review he believed that the arthritis, loose body, and chondromalacia found by Dr. Foster during the February, 1974 surgery were conditions preceding January 28, 1974. He conceded that arthritic
“Whether or not the patient sustained a significant injury to his left knee on January 28, 1974 remains questionable, since the admitting history on February 17, 1974 does not describe any specific injury, and reference is made to left knee pain of several months duration.”
Dr. Coles also gave his opinion that the “medial instability of the left knee” which was diagnosed by Dr. Buss in February, 1975, and which necessitated the corrective surgery in March, 1975, was not related to the alleged accident in January, 1974, because according to the 1974 operative reports, “the medial collateral ligament was so tight at the time of the initial operation on the left knee that . . . [it] would not even admit the tip of the little finger on valgus stress.”
The hearing examiners found that “no credible evidence was presented to establish that the above alleged injury actually occurred,”
The issue for this court is whether the record contains credible evidence to support the examiners’ finding that the alleged accident on January 28, 1974, did not occur. More precisely, the issue where relief to the applicant is denied is whether the evidence was sufficient to raise in the minds of the department a legitimate doubt as to the existence of facts essential to compensation. Erickson v. ILHR Department, 49 Wis.2d 114, 181 N.W.2d 495 (1970).
Erickson sets forth the applicable rules at length. In sum, they are as follows: the applicant has the
Applying those principles to the facts before it in Erickson, the Supreme Court found insufficient inconsistencies to justify the department’s denial of compensation. The circuit court believed that this case is controlled by Erickson. While the facts of the two cases are similar, this case is distinguishable, and the inconsistencies presented by the record before us are sufficient to raise a legitimate doubt as to claimant’s allegations.
In Erickson, the inj ured employee immediately stopped work, immediately went to the plant hospital, was diagnosed the day following at another hospital to have a ruptured hernia, and explained on redirect examination comments he was alleged to have made to a supervisory employee immediately before the accident about pains in his legs and back prior to the accident. Though hospital records in that case contradicted Erickson’s testimony that he had never experienced back pains prior to his work accident, those same records, as well as the WC-16-B reports of three different doctors, all uniformly referred to the accident at work. Though there was some dispute as to whether Erickson had reported his accident to the nurse at the plant hospital, no admissible evidence was received to suggest that he did not, leaving Erickson’s testimony unimpeached. While a supervisory employee denied that Erickson had reported the inci
Claimant, by contrast, did not stop work but went to lunch and returned to work the balance of the day, went on vacation for two weeks during which he trav-elled to and from Antigo and flew a plane out of Milwaukee, and did not, according to his own testimony, seek any medical attention despite the fact he was in pain “all the time.” Though claimant asserts on this appeal that he saw Dr. Foster the day following the accident, the evidence tending to show that, discussed below, is contradictory and the contradictions are entirely unexplained. The hospital reports dictated by Dr. Foster, to whom claimant said he reported the details of the accident, are silent as to those details and contain no suggestion of any traumatic cause of any of the diagnosed problems.
Dr. Foster’s April 27 report repeats the substance of the original report in different language. This suggests that the doctor was not merely repeating in the second report a “mistake” made in dictating the first, but twice omitting details likely to have been included in such reports if known to him at the time of dictation. The reports conflict with the same doctor’s WC-16-B report filed almost two years after the alleged incident. They also conflict with claimant’s repeated testimony that he had never previously had any pain or difficulty with his left knee, as they refer in some detail to pain and other problems for several months. There is no explanation for these conflicts.
Though claimant alleges that he reported the accident both orally and in writing to his employer, neither the written report nor testimony by the employee to
“The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” 2 Wigmore (3rd ed.), sec. 285, p. 162, Coney v. Milwaukee & S. T. Corp., 8 Wis.2d 520, 527, 99 N.W.2d 713 (1959).
In Bowen v. Industrial Comm., 239 Wis. 306, 1 N.W.2d 77 (1941), a workman’s compensation claimant failed
“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.”
The employer contended before the circuit court that the missing witness inference should be applied against claimant for failure to produce the dispatcher. It has not raised this argument on appeal. For this reason, we do not reach this issue, and do not apply the inference against either party.
The corroboration which was offered to support claimant’s assertion that an accident occurred are the five WC-16-B reports submitted by Drs. Foster and Buss. As noted above, Dr. Foster’s report was dated almost two years after the alleged accident. It contains the first and only reference by him to a work-related injury, and conflicts with his original reports. Though we note claimant’s argument that the WC-16-B report is, by statute, “prima facie evidence as to the matter con
Further, though Foster’s WC-16-B report contains a reference to X-rays taken on January 29, the day after the alleged injury, the X-rays themselves were not produced. The only other evidence of this office call is found in Exhibit F
“Failure to produce what is within one’s reach should be considered in determining what weight should be given [a party’s] testimony. A party’s omission to
The first of Dr. Buss’ WC-16-B reports, dated May 8, 1975, leaves blank that portion of the form headed “State in patient’s own words the accident ... to which he attributes the condition for which he saw you.” Though his last three reports designate claimant’s slip on the ice as causal to the condition requiring the corrective surgery performed by Buss more than a year after the alleged accident, the department is free to disregard opinions and conclusions of medical witnesses based upon statements of the claimant if it does not believe such statements are true. Davis v. Industrial Comm., 22 Wis.2d 674, 126 N.W.2d 611 (1964); Franckowiak v. Industrial Comm., 12 Wis.2d 85, 106 N.W. 2d 51 (1960); Theisen v. Industrial Comm., 8 Wis.2d 144, 153, 98 N.W.2d 446 (1959); Pressed Steel Tank Co. v. Industrial Comm., 255 Wis. 333, 38 N.W.2d 354 (1949). This principle is particularly applicable in this instance, where Dr. Coles disagreed, on purely medical grounds, with Dr. Buss’ conclusion that the 1975 “instability” of claimant’s knee was caused by the alleged 1974 accident. If there are contradictory medical reports, the department’s findings are conclusive. Tuohy v. Industrial Comm., 5 Wis.2d 576, 93 N.W.2d 344 (1958). It is for the examiner to decide if one expert’s testimony is more persuasive than another’s. Soper v. Industrial Comm., 5 Wis.2d 570, 93 N.W.2d 329 (1958).
Our decision in this case rests on an exhaustive search of the original record. That search was necessary because the department failed to give reasons for the conclusion that there was not credible evidence to support claimant’s allegation. Our burden, and that of the circuit court, would have been considerably eased had the department stated the facts upon which its determination was made. In light of the demands on this court’s time, we ask that it do so in future cases.
By the Court. — Judgment reversed.
Claimant’s brief ignores the existence of this second report. The circuit court’s opinion contains no reference to it. We can only assume that neither party directed that court’s attention to the existence of this critical piece of evidence.
Neither the examiners nor the department gave any reasons for this finding.
Even if the inference had been correctly applied against the employer in this case, it would not have substantially aided claimant’s cause. “This inference ‘does not operate to relieve the adverse party of the obligation of establishing his case.’ Rudy v. Chicago M., St. P. & P. R. Co., 5 Wis.2d 37, 47, 92 N.W.2d 367 (1958),” quoting 1 Jones, Evidence (4th ed.), p. 53, sec. 22, and 2 Wigmore, Evidence (3rd ed.), p. 179, sec. 290.
Neither the circuit court’s opinion nor the briefs of either party refer to this significant exhibit.