MOSER v. USEMCO, INC., 2007 WI App 216

305 Wis.2d 656, 739 N.W.2d 492

No. 2007AP000525 FT.Court of Appeals of Wisconsin.
August 9, 2007.

APPEAL from an order of the circuit court for Monroe County: MICHAEL J. MCALPINE, Judge. Affirmed.

Before Higginbotham, P.J., Vergeront and Bridge, JJ.

PER CURIAM.

¶ 1 Hellena Moser, on behalf of her deceased husband Robert Moser, appeals a circuit court order affirming a decision of the Labor and Industry Review Commission.[1] Moser argues that the Commission’s decision is not supported by credible and substantial evidence and that it acted outside of or in excess of its lawful authority. We affirm.[2]

¶ 2 We will uphold the Commission’s factual findings if they are supported by substantial and credible evidence See WIS. STAT. § 102.23(6) (2005-06)[3] ;Kitten v. DWD, 2001 WI App 218, ¶ 19, 247 Wis. 2d 661, 634 N.W.2d 583, aff’d on other grounds, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649. “Substantial evidence is the quantity and quality of evidence which a reasonable person could accept as adequate to support a conclusion.”Kitten, 247 Wis. 2d 661, ¶ 19.

¶ 3 Moser argues that the Commission’s decision is not based on substantial and credible evidence and that it acted in excess of its authority when it concluded that Robert’s exposure to welding fumes at work was not a material factor in the development or progress of the cancer that killed him.

¶ 4 Robert’s treating physician, Dr. Robert Witte, attributed Robert’s cancer to years of exposure to welding fumes. Dr. Witte based his opinion on studies that showed higher rates of lung cancer among welders exposed to welding fumes than the general public. However, Dr. David Blake, a doctor contracted to perform an independent medical examination on Robert, opined that Robert’s exposure to welding fumes was not a material contributory causative factor in the onset or progression of Robert’s lung cancer. Dr. Blake pointed out that one of the studies Dr. Witte relied on in asserting that welders have a higher incidence of lung cancer due to welding fumes showed no significantly increased rate of lung cancer among welders when asbestos exposure and smoking were taken into account. Dr. Blake explained that this suggests that the increased cancer risk to welders is associated with asbestos exposure, rather than welding fumes themselves. Dr. Blake stated that Robert’s lung cancer was not the type of cancer associated with asbestos exposure. Finally, Dr. Blake opined that Robert’s cigarette smoking was a direct cause of his lung cancer.

¶ 5 We must affirm the Commission’s decision if it is supported by “evidence which a reasonable person could accept as adequate to support a conclusion.” Id. Dr. Blake’s opinion was adequate to support the decision. It was the Commission’s prerogative to find Dr. Blake’s opinion more credible than Dr. Witte’s opinion. Id., ¶ 20 (the commission, not the reviewing court, determines the credibility of the witnesses). We thus conclude that there was substantial and credible evidence to support the Commission’s decision and that it acted within its authority in making the decision it did.

By the Court. — Order affirmed.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

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