CARR v. INDUSTRIAL COMM., 25 Wis.2d 536 (1964)

131 N.W.2d 328

Supreme Court of Wisconsin.October 27, 1964 —
November 24, 1964.

APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.

The appellant, a construction worker, seeks reversal of a circuit court affirming on review the denial of compensation by the Industrial Commission.

The appellant, Carr, was employed by Square Construction Company as a laborer in an underground project. Because the work underground had to be done under pressure,

Page 537

all employees had to go through a decompression process at the termination of each working shift.

At the termination of his night shift on April 1, 1961, Carr went through the normal decompression process. This consisted of about five minutes in the first chamber and about 25 minutes in the second chamber. These chambers allow for a gradual decompression to compensate for the differences between underground and surface pressure.

Fellow employees of Carr drove him home that morning. As he stepped out of the car, he fell to the ground and was unconscious for an undetermined time. While lying on the ground, Carr had an involuntary bowel movement and urination.

Carr’s fellow employees took him to the county emergency hospital, where he was confined for two days. Upon admittance to the hospital, Carr was examined by Dr. Smith. Carr complained of having the “bends.” He was short of breath, but said nothing about cramps in the joints. Dr. Smith concluded at the time that Carr had fainted due to lack of sleep and fatigue. When Carr was released from the hospital, Dr. Smith diagnosed the symptoms as syncope or fainting.

On April 11, 1961, Carr was examined by Dr. Becker, his own physician. Dr. Becker determined that Carr was suffering from caisson disease (decompression illness commonly called the “bends”), and that the past medical, social, and family history was noncontributory.

Dr. Becker’s diagnosis constituted the basis for the claim that Carr made to the Industrial Commission. However, the hearing examiner found that Carr did not sustain the injury while performing services growing out of and incidental to his employment. The Industrial Commission denied compensation based on this determination.

During the hearing, Carr stated that he drank about a quarter pint of gin the day previous to the accident. He also

Page 538

testified that he was involved in a scuffling incident about three weeks prior to his injury.

Carr petitioned the circuit court for review. The court determined that there was credible evidence to sustain the finding of the Industrial Commission. The court relied primarily on the testimony of Dr. Smith, who testified that in his opinion Carr did not have the bends. Carr appeals from this judgment.

For the appellant there was a brief by Glassner, Clancy Glassner of Milwaukee, and oral argument by William E. Glassner, Jr.

For the respondent Industrial Commission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was George Thompson, attorney general.

For the other respondents there was a brief by Moore Moore, and oral argument by Frank Crivello, all of Milwaukee.

HEFFERNAN, J.

The question is whether there is credible evidence which, if unexplained, would support the finding of the Industrial Commission in a workmen’s compensation case. Shawley v. Industrial Comm. (1962), 16 Wis.2d 535, 114 N.W.2d 872; Wagner v. Industrial Comm.
(1956), 273 Wis. 553, 565, 79 N.W.2d 264, 80 N.W.2d 456; Indianhead Truck Lines v. Industrial Comm.
(1962), 17 Wis.2d 562, 565, 117 N.W.2d 679. See also Seymour v. Industrial Comm., ante, p. 482, 131 N.W.2d 323.

Upon the record of this case, we must affirm. The testimony of Dr. Smith that in his opinion Carr did not have the bends is the evidence upon which the Industrial Commission could rely. Although Carr made out a prima facie
case based upon the conclusion of his personal physician, Dr. Becker, that he had caisson disease, this diagnosis was disputed at the hearing by Dr. Smith. It is not our function to

Page 539

resolve or weigh conflicting medical evidence. That function is solely within the province of the Industrial Commission Unruh v. Industrial Comm. (1959), 8 Wis.2d 394, 399, 99 N.W.2d 182:

“The weight and credibility to be given medical witnesses in a workmen’s compensation case are for the Industrial Commission. The rule as stated in Milwaukee E.R. T. Co. v. Industrial Comm. (1951), 258 Wis. 466, 475, 46 N.W.2d 198, is: `It is a well-established rule that the commission’s finding on disputed medical testimony is conclusive A. D. Thomson Co. v. Industrial Comm. (1928), 194 Wis. 600, 602, 217 N.W. 327; General A. F. L. Assur. Corp. v. Industrial Comm. (1937), 223 Wis. 635, 641, 271 N.W. 385; Crucible Steel Casting Co. v. Industrial Comm., supra [(1936), 220 Wis. 665, 265 N.W. 665] (p. 669).’ See also Borden Co. v. Industrial Comm., supra; Borum v. Industrial Comm. (1959), 6 Wis.2d 168, 93 N.W. (2a) 860.”

This is true even though this court might have ruled differently had it been in the position of the Industrial Commission.

The Industrial Commission must choose between any conflicting testimony. Deciding these issues of fact is the peculiar office of the Industrial Commission. Unruh v. Industrial Comm., supra.

The Industrial Commission on all disputed facts chose on the basis of credible evidence to resolve those facts against Carr. We agree with the trial court that the findings of the Industrial Commission must be sustained.

By the Court. — Judgment affirmed.

Page 540