Theisen v. Industrial Comm

Full title: THEISEN, Respondent, v. INDUSTRIAL COMMISSION and others, Appellants

Court: Supreme Court of Wisconsin

Date published: Oct 6, 1959

98 N.W.2d 446 (Wis. 1959)

98 N.W.2d 446

Opinion

September 11, 1959 —

October 6, 1959.

APPEAL from a judgment of the circuit court for Dane county, ALFRED L. DRURY, Reserve Circuit Judge, Presiding. Affirmed.

For the appellant Industrial Commission the cause was argued by Mortimer Levitan, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.

For the respondent there was a brief by Ament Russell of Merrill, attorneys, and William L. McCusker of Madison of counsel, and oral argument by Mr. Jacob J. Ament and Mr. McCusker.

On September 26, 1957, Peter Theisen commenced an action to review an order of the Industrial Commission affirming the order of an examiner dismissing Theisen's application for workmen's compensation benefits. Theisen was employed by Antigo Milk Products Corporation at the time of an alleged injury on August 17, 1956. After a hearing, the examiner found that on that day Theisen began having serious trouble with his low back and was eventually operated for such condition; that no particular injury occurred to the applicant in the course of his employment which would account for this condition, and that the condition was due to causes other than injury arising out of employment, and that the employment did not aggravate any pre-existing condition so as to result in disability and necessity for treatment.

It was established without dispute that on August 17th Theisen began work at 7 or 7:30 a. m., worked at hauling powdered milk for some two hours, and was then engaged in loading 60-pound cartons of butter on a cart in the plant cooler; that a short while later fellow employees found him leaning over the end of the cart, crying and sweating, and another employee took him home; that later that day he consulted his physician, Dr. Beattie, who felt he had a disc condition and advised him to enter the hospital; that he entered the hospital August 21st; that an orthopedic surgeon, Dr. Braun, saw him on August 28th; that after making tests, Dr. Braun recommended surgery; and that on September 11th Dr. Braun performed a laminectomy, finding a moderately large, protruded disc between the fourth and fifth lumbar vertebrae, on the left.

The record also discloses that Peter Theisen was sixty-two years of age. He had operated a farm of 120 acres for about twenty years and had sold it in early March, 1956. He had been a patient of Dr. Beattie for about a year for chronic alcoholism. Dr. Beattie testified that there had been a possibility of an ulcer and a complaint of abdominal pain, but never of back trouble. Peter had been in the hospital on occasion in connection with chronic alcoholism and had been in the hospital August 12th to 14th, complaining of pain in the left shoulder and elbow and vomiting.

He had started to work for the Antigo Milk Products Corporation on April 24, 1956. Pursuant to the practice of the employer, he was examined a short while later, and presumably found able to do the work. His work consisted of hauling powdered milk from the plant to the warehouse and loading butter, cream, and milk on trucks and railroad cars. He had made complaints to other employees about the work, but had not complained of any back trouble. His wife and daughter also testified that he had not complained of any difficulty with his back. At times he and another man would lift barrels of powdered milk weighing 242 pounds onto a cart, piling them two high; at times he and another man would lift 100-pound sacks and pile them nine high.

On August 17th, after hauling powdered milk for a time, he was lifting 60-pound cartons of butter onto carts, and Louis Theisen and Nathan Voltz were to pull the carts out of the cooler and onto a freight car. Louis and Nathan pulled a loaded cart out. When they returned ten or fifteen minutes later, they found Peter slumped over a partially loaded cart. Welnetz, another employee, took Peter home. He rested for a time and then was taken to Dr. Beattie's office by his daughter-in-law.

Dr. Beattie testified that Peter told him on August 17th that Peter had lifted a 60-pound case of butter that morning, and as he was bending over he slipped a little bit and had a severe, excruciating pain in the back that radiated down the left leg; that he was unable to stand immediately. Dr. Beattie testified that when Theisen entered the office he was in a great deal of pain. It was Dr. Beattie's impression that Theisen "had a disc" and the doctor advised him to go to the hospital immediately. Theisen preferred not to and the doctor gave him drugs to relieve pain and told him to go home and go to bed.

Theisen did enter the hospital on August 21st. Dr. Beattie testified that he was in constant pain and was confined to bed.

Dr. Beattie testified that, keeping in mind the history given him and the condition observed, it was his opinion that the disc condition was a direct result of the injury received on August 17th; and that he knew of no way in which the alcoholism could have brought about the disc condition. On cross-examination, Dr. Beattie testified that assuming that for many weeks prior to August 17th Theisen complained of inability to do his work, and complained constantly that the work was too much for him, these assumptions would have no bearing on Dr. Beattie's opinion as to the likelihood of a relationship between a deteriorating disc and the complaint; that assuming that Theisen made no complaint that he had anything to do with a butter-carton accident, slipping or lifting or falling with it, that assumption would not alter the opinion in any way. He said his opinion was, "that the cause of the injury was actually the weight lifting and bending and sudden movement causing the pressure upon the cartilaginous disc. . . . and sudden tension and torque, producing a little more pressure than the cartilaginous disc was able to withstand;" that as far as he knew, Theisen "slipped but didn't fall; but one leg slipped from under him and, according to what he told me, as he was holding the butter in a bent-over position." The doctor testified, however, that it would not make a great deal of difference in his opinion whether Theisen slipped and did not fall, or whether he slipped and fell to the ground, or whether he just had a sudden onset while lifting the carton of butter; that the ordinary work which Theisen was doing could have caused it.

Dr. Braun testified that on August 28th Peter had a great deal of pain in the lower back with radiation to the left leg and was barely able to move; and that his findings indicated there was an acute disc lesion. He testified that Theisen told him that on August 17th while loading 60-pound cartons of butter in the cooler, he slipped on a wet rack and apparently was on the edge of it; that in slipping he noticed a sudden, severe jolt while trying to hold the carton; that he was able to hold the carton, but slipped to the floor, causing more acute pain in his low back and immediate pain in the left hip; that he had denied any previous back trouble.

Dr. Braun testified that the insult Theisen described as occurring in the cooler could have caused this type of disc lesion and that from the history and findings the acute herniated disc was caused by the fall. Dr. Braun testified that he considered the disc, which he found to have been protruded, a fresh disc. He indicated that one could not determine from observation the length of time it had protruded except that the fresher ones are the whiter ones and usually they can stay fresh for a period of three to six months, but after that they turn a definite yellowish color. On cross-examination, Dr. Braun testified that the herniation would be an extremely painful condition; that the acute pain usually is a sharp jolt and then there is a period of some quiescence and it gradually increases in severity; that the acuteness does not necessarily last for quite a few minutes, but can come like a flash and go like a flash and then gradually gets worse over a period of hours; that beyond this first effect there usually is continuous pain of a mild nature which becomes gradually more severe.

On further cross-examination, Dr. Braun was asked whether, if subsequent testimony showed that Theisen had complained of inability to do his work for quite a number of weeks before August 17th, that would change his conclusions. An objection was sustained to this question. Then the following testimony was given:

" Q. Does a disc gradually deteriorate? A. Yes.

" Q. Would not this man have had complaint about his back prior to August 17, 1956, if he had a disc that was gradually deteriorating or bulging? A. Yes, he would gradually have pain if there was gradual or progressive degeneration. It usually takes an insult of heavy lifting or slipping, or some other nature, to actually cause the acute back condition that is associated with the disc lesion.

" Q. Doctor, in case this man had a disc that was gradually deteriorating prior to this insult of August 17th you mentioned, would not ordinary normal work have caused periodic and even constant occasions of pain? A. Well, there is a probability it could. It usually depends on the amount of degeneration or extrusion that is present. Some people can work with a slight bulging and have slight pain with it.

"Q. Doctor, when you mention an acute disc lesion on August 17, 1956, and you do not have the history of the patient, could you determine the difference between an acute lesion as of that date and a chronic lesion as of that date? A. No, I don't believe you could do that. However, when he was first examined he could not hardly move and it was in an acute phase at that time.

" Q. As of that date you could not, other than by a physical examination, distinguish between an acute lesion and a chronic lesion, could you? A. That is true. A person can have an acute exacerbation of a chronic disease.

" Q. As far as a chronic disc disease is concerned, you can have an acute onset simply by bending over, can you not? A. That's right. I see people bending over and picking up a dime and getting an acute disc lesion.

" Q. Following that would you say it wouldn't matter whether he was picking up a dime or have a 60-pound carton in his hand. A. No. . . . Either way. You can't deny that. Any type of bending or twisting or turning can cause an acute back.

" Q. Following your answer here suppose it is shown the applicant has a history, merely showing he was lifting and had an acute pain. Isn't it just as logical that a normal lift or a normal bend with or without a weight in his hand, would cause a protrusion of the disc that was already deteriorating or possibly already partly protruded? A. The least amount of twisting or bending can cause an acute lesion in any age of an individual. Frequently you have to assume that this was a degenerative disc in that line before you can definitely state just the mere lifting would cause it."

Louis Theisen testified that he is not related to Peter; that when Louis and Voltz returned to the cooler on August 17th and found him slumped over and crying, Louis asked him what was wrong and Peter said, "I don't know, . . . I can't take it any more;" that Peter did not say anything about hurting his back or having slipped, or having a severe jolt while trying to hold the butter carton. He testified that Peter had told Louis before that the work was getting kind of hard for him and just a few days before had said he didn't know how long he would be there; that his stomach was bothering him; that when Louis and Voltz moved the loaded cart out of the cooler, ten to fifteen minutes before, Peter was perfectly "O.K." and was doing his work; that when they returned, "Well, we knew that he was hurt. We knew that he was having trouble with his stomach." Louis testified that he visited Peter in the hospital a short while later and Peter did not mention that he had gotten hurt on the job.

Louis testified that after Peter applied for compensation, Peter came to Louis' house and offered him $50 if he would say that Peter was hurt on the job. Peter remembered talking to Louis, but testified at first that he could not remember offering him $50 and later that he did not do so.

Voltz testified that when they returned to the cooler with the empty cart, the only thing he remembered that Peter said was that he could not take it any more; that he said nothing about getting hurt or about slipping or having a sudden jolt while trying to load a carton of butter. He testified that when Peter first came to work he had worked regularly, but later kept missing days occasionally; that when Peter came to work on August 17th he said he did not feel good; that Peter seemed to be in a lot of pain when Voltz saw him leaning over the back end of the cart with his head in his hands, and that he never had complained before about having any trouble with his back.

Francis Welnetz, another employee, testified that he was called to the cooler and told that Peter was sick; that when asked what was the matter, Peter said, "I don't know. I don't feel good." Welnetz took Peter home, and testified that Peter did not complain on the way home that he had been hurt on the job; that Peter told his wife he did not know what was the matter, "I just don't feel good;" that Peter appeared to be in pain, but said nothing about his back. At a later time, Peter's daughter telephoned Welnetz that Peter had hurt his back at the plant. The daughter testified this was the day Peter went to the hospital; Welnetz thought it was close to a week after August 17th.

Peter's wife testified that Peter was in pain and was white as a sheet; that he lay down for a while and that she helped him dress in order to go to the doctor's office, and that the girls helped him to get to the car, and that he went to the doctor's office close to the noon hour; that he had never complained of any back trouble before and had been able to do the farm work all right. Peter's daughter-in-law testified that she had been called to come and take Peter to the doctor and had helped him get to her car; that he said he was sore all over; that he was bent over and did not look the same as usual; that she had known him for seven years and that before that day he had never complained to her about any trouble with his back. Peter's daughter testified that when her father was brought home on August 17th, he said, "I hurt myself at work;" that he was white as a ghost, was sweating, and was bent over; and that her father had never complained of any back pain before that time.

Peter testified that he had never had trouble with his back or left leg; that he had had ulcer trouble; that on August 17th, he got hold of one crate of butter and was putting it on the cart and must have slipped with his left foot on the wooden rack; that it felt as if he had broken his back; that something let loose; that when the pain hit him, he dropped the butter but he managed to pick it up again and put it on the cart; that that was all he could do and was leaning up against the cart when the others came back. He testified that he went down to his knees when he slipped; that he was positively sure that he told Louis that he had hurt himself; that he had pain in his back and left side; and that he explained to the doctor August 17th how he hurt himself and asked the doctor to report his injury to the plant but did not think the doctor did so.

FAIRCHILD, J.

The attorney general relies on the well-established rule that the commission is the sole judge of the credibility of witnesses. Molinaro v. Industrial Comm. (1956), 273 Wis. 129, 134, 76 N.W.2d 547. There is no dispute about this principle. In addition to Peter Theisen's great interest in the outcome, his credibility was impeached by evidence tending to show that he attempted corruptly to influence another witness. 58 Am. Jur., Witnesses, p. 390, sec. 723. Under the circumstances, the circuit court correctly sought to determine whether, erasing all Peter Theisen's uncorroborated testimony, the evidence would compel findings supporting an award. The circuit court excluded from consideration Peter's testimony to the effect that he slipped and fell while lifting a butter carton. Peter's testimony that he immediately complained of injury to his fellow employees was in conflict with their testimony, and the commission could properly believe them rather than him in any event. The opinions of the doctors to the extent that they were based on Peter's statement to them that he slipped and fell were to be disregarded if the commission believed that he did not slip or fall. Pressed Steel Tank Co. v. Industrial Comm. (1949), 255 Wis. 333, 335, 38 N.W.2d 354.

Nevertheless, the circuit court concluded that the evidence compelled a finding that an accident causing injury arose out of the employment. As stated in its written decision:

"It is undisputed that applicant had performed his work including the loading of 60-pound butter tubs without incident for two to three hours before the alleged injury. There is no dispute as to the conditions present when he was found except whether the racks on which the tubs stood were wet, damp, or dry. . . . There is not a scintilla of evidence which permits of a reasonable doubt or a reasonable inference but that the applicant was able to work up to the time in question, that something happened in that cooler; that that something caused pain which disabled him from continuing his work; and that that something was diagnosed in a matter of two or three hours later and verified by the subsequent operation as a so-called slipped disc. There is no inconsistency in any of these facts."

Later on, the court stated:

"There was testimony which the commission had the right to find credible notwithstanding denial by the applicant that he attempted to bribe another employee to testify that he had stated at the time that he was injured. This is shocking and repulsive, if true. However, the court and the commission were confronted with the question as to whether, assuming the attempt was made, in view of the facts established by proof other than that of the applicant, it was sufficient to create a legitimate doubt either as to burden of proof or credibility as to the facts essential to compensation. This question, it seems to the court, upon the record must be answered in the negative. This conclusion does not operate as approval or condonement of such an attempt. The law prescribes the penalty but denial of compensation, otherwise proper, is not the penalty prescribed."

The attorney general points out that Peter Theisen had previously complained about his work and suggests that even though he did not complain specifically about his back, his complaints justified the inference that "he had difficulty with his back, but that it had not progressed to the point of painfulness evidenced by complaints;" that Peter complained of not feeling good when he came to work that morning; that when the pain became disabling he did not relate it to any alleged injury; and that in various conversations thereafter he did not so relate it. The examiner and commission found that on August 17th "the applicant began having serious trouble with his low back."

Let us assume that the evidence permitted the commission to entertain a legitimate doubt that Peter's generalized complaints about his work may have reflected the gradual and progressive pain which Dr. Braun associated with gradual progressive degeneration of the area where the disc was found on surgery to have protruded. Let us agree with the attorney general that the applicant, who had the burden of proof, did not sufficiently disprove the existence of some degeneration prior to the morning of August 17th. Nevertheless, as the circuit court pointed out, no disabling pain had manifested itself during two hours of substantial physical exertion and then, "something happened in that cooler; that that something caused pain which disabled him from continuing his work." It may be conceivable under the medical testimony that Theisen bent over for some purpose totally unrelated to his duties, or in some manner that involved no exertion such as occurred in Buettner v. Industrial Comm. (1953), 264 Wis. 516, 520, 59 N.W.2d 442, and that such bending triggered the acute herniation. Such a coincidence, though possible, was highly unlikely. Not only was there testimony from members of Peter's family and his fellow employees, negativing previous complaints of back trouble, but, if it existed, it had escaped the attention of the doctors whom he had consulted about other matters. We deem the improbability of the supposed coincidence so great that upon this record, the commission was not entitled to assume that that was the explanation.

In Wisconsin Appleton Co. v. Industrial Comm. (1955), 269 Wis. 312, 322, 69 N.W.2d 433, this court sustained an award of compensation where an employee developed an acute disc syndrome while doing his usual heavy physical work. It is true that in that case, there was testimony that the degenerating disc lesion had been developing over a period of time and that the nature of the work done for the same employer was responsible for the degenerating condition. It was said, however: "It is not essential that the exertion producing the disability be out of line with the ordinary duties of the job in order that the disability be compensable." The decision of this court in Wisconsin Power Light Co. v. Industrial Comm. (1955), 268 Wis. 513, 68 N.W.2d 44, was quoted with approval. In that opinion, which concerned the death of an employee from a ruptured aneurysm, it was stated that the physical strain which produces an injurious physical result constitutes an accident in the sense that that term is used in the act. The court quoted from 1 Larson, Law of Workmen's Compensation (1952), p. 519, sec. 38.20, to the effect that a majority of jurisdictions now hold that when usual exertions lead to something actually breaking, herniating, or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental. Among other conditions mentioned in this connection as compensable are herniated intervertebral discs "even when the exertion or conditions producing the change were not out of line with the ordinary duties of the job."

In M. M. Realty Co. v. Industrial Comm. (1954), 267 Wis. 52, 63, 64 N.W.2d 413, herniation of a disc occurred when an employee bent from his waist to pick up two 2 x 4s, 16 feet long. An award of compensation was upheld, notwithstanding the fact that the structures which previously had held the disc in place between the vertebrae of his back had been weakened by a prior injury.

We conclude that the evidence before the examiner and commission compelled them to find that the acute herniation, whether preceded by some degree of degeneration or not, was caused by the bending and lifting procedure which Theisen was performing in his work, whether accompanied by an unusual slipping or twisting or not, and that further proceedings should be had to determine the other matters material to the proper award of compensation.

By the Court. — Judgment affirmed.

HALLOWS, J., dissents.