26 N.W.2d 165 | Wis. | 1947
This is an action commenced by F. A. McDonald Company and Hartford Accident Indemnity Company, plaintiffs, *135 against John H. Lawver and Industrial Commission of Wisconsin, defendants, on September 24, 1945, to review an award of the Industrial Commission, ordering plaintiffs to pay the sum of $955.50 to defendant, Lawver, for injuries sustained while in the employ of defendant McDonald Company. Defendants appeal. The material facts will be stated in the opinion. Lawver, employed by McDonald Company to handle logs, suffered a sharp pain in his back on January 24, 1944, while he was trying to roll a log. He notified his foreman of the accident and kept on working until quitting time. He suffered intermittent total disability until June 24, 1944, for which he was paid compensation. In addition, the commission found that he had sustained permanent disability equivalent to five per cent of permanent total disability and ordered payment of the compensation. The circuit court set aside the commission's findings and dismissed the application.
The question is as to whether the evidence sustains the finding of permanent disability. There was, of course, evidence by plaintiffs' doctors that there were no objective symptoms of any kind. The commission relied upon a report by Dr. Montgomery. In his report, Dr. Montgomery agreed with the clinical findings of the doctor called by the employer. Under the heading of "impressions" at the end of his report, he states that there is no objective evidence of bone or joint disease or injury; that the injury sustained in the accident was limited to certain tears in the lumbosacral area which would be expected to heal in three to eight weeks. He also stated that there were no conditions in the spine or lower extremities to *136 account for Lawver's complaints; that Lawver, however, has a chronic prostatitis and enlarged and adherent tonsils and that the tonsils and prostate are regarded as probable loci of infection "for an infectious fibromyositis of the posterior cervical and lumbar muscles and for an infectious fibrositis of the interspinous ligaments in the cervical and mid dorsal areas. The presence of lymphadenopathy in the right axilla and in the left groin indicate evidence of an active infection. There -is limitation in voluntary abduction of the shoulders which is believed to be on an infectious periarthritic basis." There are signs of active infection which would account for his symptoms. Dr. Montgomery concludes "I believe that Mr. Lawver's complaints would be considerably reduced, if not completely relieved, by a tonsillectomy and prostatic massages. One of the sulfonamides should also be tried. The septal deviation in the nose is likely causing a partial obstruction in the left nasal passage and may be hindering the drainage from the sinus on that side. The left hydrocele is of no clinical value relative to his complaints. I believe there is no residual disability from the reported lifting incident that occurred on 1/24/44 except for persistence of complaints of pain in the low back. It is reasonable to expect that Mr. Lawyer is temporarily totally disabled but I believe his disability is the result of an infectious cause which was not initiated or augmented by the reported accident on 1/24/44. Due to the persistenceof complaints in the low back and the absence of any significantprevious complaints in this area, an allowance of a five percenttotal disability as the result of the reported injury on1/24/44 might be considered to cover any relationship betweena probable injury and his present subjective complaints thatcannot be differentially identified."
The first contention of the commission is that the underlined portion of Dr. Montgomery's report sustains its finding of five per cent disability. Included in this contention is the claim that the interpretation of medical reports is one of the *137
functions of the commission with which this court does not, and should not interfere, and that for the circuit court to determine the meaning of a medical report is to substitute its findings of fact for those of the commission. We are of the view that this contention cannot be sustained. It is true that this court has recognized that the members of the Industrial Commission are expert triers of fact, and have deferred to this expertness in situations involving an appraisal of the convincing power of expert testimony, and have sustained the power of the commission to reject it when contrary to the commission's expert knowledge on the subject. McCarthy v. Sawyer-GoodmanCo.
The second contention of the commission is that due to its expert character as a fact-finding body, it may wholly disregard the medical testimony and find a permanent disability from the fact, (1) that there were no back pains before the accident; (2) that applicant sustained an injury resulting in pains to his back; and (3) that subjective symptoms persisted after a considerable course of treatment. This inference is not sustainable on the basis of common or general knowledge, and is contrary not only to all the medical opinion in the case, but to all of the medical findings based on actual physical examination of the applicant. To admit the commission's claim in this respect would be to sustain an award on the basis of evidence that is not in the record, and to put beyond the reach of a judicial review a large number of cases in which by any ordinary process of reasoning there is no evidence to sustain the commission, but in which the commission asserts that because of some undisclosed knowledge on its part, or its experience and skill in drawing inferences, the fact has been established. It is our conclusion that such a view cannot be sustained. In connection with the requirement that evidence be adduced before the commission see International H. Co. v. IndustrialComm.
The case principally relied on by the commission is Cutler-Hammer,Inc., v. Industrial Comm.
By the Court. — Judgment affirmed. *140