Miller Rasmussen Ice & Coal Co. v. Industrial Commission

Fairchild, J. While this court has recognized that the members of the Industrial Commission are expert triers of — 540 — fact and has “deferred to this expertness in situations involving an appraisal of the convincing power of expert testimony, and has sustained the power of the commission to reject it when contrary to the commission’s expert knowledge on the subject,” it is not to be understood, however, that we can or should abdicate this court’s function of reviewing the record before the commission to ascertain whether there is evidence to support it. F. A. McDonald Co. v. Industrial Comm. 250 Wis. 134, 137, 26 N. W. (2d) 165. In the opinion in the case just cited, Mr. Justice Wickhem said: “Carried to its logical conclusion, the contention of the commission would require such an abdication in all cases involving expert knowledge and opinion.” The principles stated in the McDonald Case afford a guide to the solution of the problem now before us. The following facts are before us: On September 18, 1945, Edwin A. Edwards was injured while in the employ of Miller Rasmussen Ice & Coal Company when he was squeezed between the fender of the truck he was working on and the back end of another truck pulling out of its parking place. The injury was minor, the only objective finding being abrasions on both hips. Edwards continued to work until October 6, 1945. Then followed intermittent periods of hospitalization, examination, treatment, and employment until December 5, 1946. Edwards did nothing by way of employment from December 5, 1946, until March 1, 1948, when the rehabilitation department set him up in a shoe-repair shop. He was fully examined by orthopedic specialists and psychiatrists. In addition, independent medical examinations were had'on two separate occasions at the request of the commission, by Dr. Herman Wirka, orthopedist at the State of Wisconsin General Hospital; and also on two separate occasions psychiatric examinations were made by Dr. Mabel Masten, physician and professor of neuropsychiatry at the Wisconsin General Hospital. Five hearings were held before three different exam — 541 — iners of the commission over a period of five years. The fifth and final hearing was held June 5, 1951. The commission made its own findings and issued its order of July, 1951, referred to in the statement of facts. If the commission’s finding of total disability is to be sustained, the reports of the psychiatrist, on which it is based, must show to a reasonable probability 'or certainty that the trauma of 1945 so upset Edwards’ basic psychoneurotic personality that since September 18, 1945, he has been unable to perform any useful employment except for intermittent periods in 1945 and 1946. The pertinent portions of Dr. Masten’s report of 1947 in relation to her psychiatric examination of Edwards read as follows: “His early years were marked by insecurity and lead to a conduct disorder. He has been in several penal institutions in the state of Illinois. He went on probation for his last offense in 1929. He was released from probation in 1932 and denies that there has been any subsequent misconduct. Two automobile thefts resulted in prison terms. Part of his early life was spent with grandparents, and for a time he was in an institution for dependent children, and from the age of fifteen years on he was on his own. He married at nineteen years and now has eight children. He had had many jobs and has always had trouble making an income adequate for his growing family. . . His attitude toward his disability and his future employability is not healthy. He accepts his condition as irre-medial and is ready to allow his wife to take over the responsibilities for wage earning while he plans to take her place in the home. He is an immature person. These factors will make rehabilitation difficult. With no objective medical and social history, I cannot make a definitive psychiatric diagnosis•, though I have no hesitation in saying that he .is not psychotic and that, he is a neurotic type, but without objective data I cannot call him a constitutional psychopath as the history of misconduct suggests. The negative X-ray studies do not confirm my original clinical impression of arthritis and — 542 — disc disease; however, the negative findings do not entirely rule out the disc disease for it is difficult to demonstrate a niidline herniation which the bilateral radiation of pain in his legs suggests. I must admit, however, that the negative X-ray findings and the poor personality structure favors a diagnosis of a psychoneurotic reaction to trauma. I think we can say with safety that he is not malingering, though I know you appreciate that on a scientific basis, the latter is a hard diagnosis to make either in the negative or in the positive.’' Dr. Masten’s report dated January 29, 1951, contains the following opinion: “Psychologic examination gave no evidence of psychotic disorder nor was there anything to explain his behavior on an organic basis. The Wechsler Bellevue intelligence test indicates an intelligence quotient of 122, which indicates superior intelligence. It became obvious that he is not making use of his native endowment and that he is operating under a severe handicap of psychoneurosis. His early social history suggests constitutional inadequacy. Emotional immaturity and dependency appear to have rendered him unfit to face the responsibility of his growing family consisting of wife and nine children. The accident has provided a defense against facing the demands of reality. There may be some degree of malingering. This commonly exists in many psychoneu-rotic traumatic reactions, but primarily his condition is the result of personality disorder and neurotic behavior. . . .” Analyzing the 1947 report, we find that Dr. Masten was “unable to make a definitive psychiatric diagnosis,” although in broad terms the report states that applicant is a “neurotic type.” Later she says that she can say “with safety that he is not malingering,” but she immediately adds that “on a scientific basis, the latter is a hard diagnosis to make either in the negative or in the positive.” The statement that claimant’s poor personality structure “favors a diagnosis of psy-choneurotic reaction to trauma” points merely to a possibility, and there is no statement in the report which with reasonable — 543 — certainty or probability states that Edwards was suffering from traumatic psychoneurosis. In the report of 1951 Dr. Masten emphasizes applicant’s psychoneurosis, emotional immaturity and dependency, and his early social history suggesting constitutional inadequacy. The only mention made of psychoneurotic traumatic reactions is in a general statement that malingering commonly exists in such cases. She does not associate Mr. Edwards with traumatic psychoneurosis, but says that “his condition is the result of personality disorder and neurotic behavior beyond his understanding.” She does not say that such neurotic behavior was due to trauma. The report shows and the record shows that applicant had trouble facing the demands of reality long before the accident occurred, and there is nothing to show to a reasonable certainty or probability that malingering was not behind the claimant’s using the accident as a “defense against facing the demands of reality,” and it is admitted in this report that “there may be some degree of malingering.” On consideration of the two above reports, we find that uncertainties so completely predominate that it is understandable that no basis has been found for an opinion as to a reasonable certainty of trauma causing applicant’s maladjustment. As said in F. A. McDonald Co. v. Industrial Comm., supra, with respect to the medical report there (p. 137) : “[It] is nothing more than a statement that there might be a . . . total disability having a causal relation to the accident. This is addressed to the possibilities and not the probabilities of the situation. ... So far as the commission’s finding of permanent disability is based upon the medical report ... , it must be considered to be just as speculative as the report itself.” Other testimony which supports a finding of malingering is that of Dr. Wirka and Dr. James R. Hurley, a specialist in psychiatry and neurology. In his 1951 report, Dr. Wirka — 544 — says: “There is no orthopedic problem in this man so far as I can see. Pie almost borders on malingering.” Dr. Wirka’s account of the examination points to malingering where he says: “On orthopedic examination the gait was not typical of any bone or joint lesion. The gait did not appear real. The gait changed frequently and as often as possible in the distance covered on the request of walking. The limp changed from one leg to the other.” Dr. Hurley testified that in his opinion a diagnosis as to Edwards rests “between the syndrome called hysteria, or neurosis and malingering, or a constitutional psychopathic personality” but that “the greater probability lies in malingering.” - We, therefore, have a case where applicant’s complaints are entirely subjective, with no pathological basis according to orthopedists who examined him, and where examination by psychiatric experts have produced no credible evidence with sufficient positiveness to attribute claimant’s psychoneurotic condition to the slight trauma he received in September, 1945. Before it may decide to make an award, the commission must be convinced by substantial evidence. It is not too high a test to require, in treating with expert testimony that evidence, to some degree of reasonable certainty, of a relation between an injury and a result be shown by a competent opinion. This seems to be necessary to avoid resting decisions on possibilities and leaving a result based on speculation and conjecture instead of basing decisions on proof which satisfies the mind of the existence of this essential relationship. Especially is this true if we are to continue to have the rights of all parties involved protected under administrative procedure and avoid arbitrary decisions. The contention put forth by the attorney general that the commission may disregard the medical testimony and find a permanent disability from the fact that (1) there were no pains before the accident; (2) that applicant sustained an — 545 — injury resulting in pain; and (3) that subjective symptoms persisted after a considerable treatment is not sustainable. “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.” F. A. McDonald Co. v. Industrial Comm., supra (p. 138). By the Court.- — -Judgment reversed and cause remanded with directions to enter judgment setting aside the award and remanding the record to the Industrial Commission for further proceedings.