| Wis. | Nov 29, 1960
On this appeal counsel for the employee centers his attack upon the following finding of fact of the examiner, which finding was affirmed on review by the commission :
“. . . that his [the employee’s] present complaints and alleged disability are due to causes wholly unrelated to his accident of April 15, 1957, or his employment with the respondent [employer]
It is asserted that either such finding is without support in the evidence, or at best is based upon mere speculation.
Whether the employee sustained permanent partial disability due to the accident which occurred on April 15, 1957, as a result of his lifting of the heavy metal flange, is dependent upon the medical testimony.
Immediately after the accident the employee was treated by Dr. Levine who is in the employ of the employer. X rays were taken which were negative with respect to showing any injury. Dr. Levine’s diagnosis was lumbosacral back strain. The employee was hospitalized and traction was there applied. Physiotherapy treatments were also given and a lumbosacral corset was prescribed and worn by the employee. Discharge from the hospital occurred May 5, 1957. Thereafter, on May 7, 1957, Dr. Levine gave the employee tablets containing aspirin, phenacetin, and caffeine. These were to relieve pain. The doctor also recommended that the employee continue to wear the corset, which he did. On May 20, 1957, the employee returned to work. Dr. Levine advised him to take heat treatments if his back bothered him, and the doctor assumed that the employee did have such heat treatments after May 20, 1957. Dr. Levine’s last examination of the employee was made on May 31, 1957. At the hearing Dr. Levine testified that his opinion to a reasonable medical probability was that the employee sustained no permanent disability as a result of the accident of April 15, 1957.
In addition to Dr. Levine, Dr. Sadoff and Dr. Ansfield testified at the hearing, the former as a witness for the employee and the latter as witnesses for the employer and insurance carrier. Dr. Sadoff examined the employee on July 22, 1958, and took X rays which showed essentially negative findings. It was Dr. Sadoff’s expressed opinion that the employee was suffering from an impending-disc lesion due to the accident of April 15, 1957, resulting in a ten per cent permanent partial disability. Dr. Ansfield made his examination of the employee on October 10, 1958, and X rays were taken. It was this physician’s opinion that there was a possibility but not a probability of a disc involvement such as testified to by Dr. Sadoff. Dr. Ansfield further testified that one would have to speculate if the recurrence of symptoms, after the lapse of the seven-month, pain-free period, is to be attributed to the accident of April 15, 1957. However, Dr. Ansfield stated that he did believe the employee’s statements to the effect that he did sustain pain after the lapse of such seven-month period.
While Dr. Ansfield did not express a medical opinion as to whether or not the employee did sustain a permanent partial disability as a result of the accident, he made it very clear by his testimony that an opinion that the accident had produced permanent partial disability would be based on speculation and not probabilities. If the examiner believed this testimony of Dr. Ansfield, he had the right to reject
However, we cannot agree with the contention advanced by counsel for the employee that Dr. Levine’s testimony, wherein he expressed the medical opinion that the employee sustained no permanent disability as a result of the accident, must be rejected. The reason advanced to support such contention is that such opinion was based upon assumed facts that did not exist. While this court has held in Pressed Steel Tank Co. v. Industrial Comm. (1949), 255 Wis. 333, 335, 38 N. W. (2d) 354, that a medical opinion so based must be disregarded, facts of the instant appeal do not fall within such rule. Although Dr. Levine did not see the employee after May 31, 1957, the record is entirely silent as to whether or not he was acquainted with the employee’s subsequent medical history. Dr. Levine was not questioned as to this. There is nothing in the record as to what assumption, if any, Dr. Levine made with respect to that which occurred after May 31, 1957, when he expressed his medical opinion at the hearing to the effect that no permanent disability resulted from the accident. It might well be argued that his opinion was not entitled to much weight in the absence of a showing that he was acquainted with the em
After carefully reviewing the evidence, it is our conclusion that there was credible medical testimony to support the finding that the employee did not sustain any permanent disability as a result of the accident of April 15, 1957.
By the Court. — Judgment affirmed.