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Fabricating Engineers v. Anderson11/22/2005
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Fabricating Engineers and its insurer, Liberty Insurance Corporation, appeal an order affirming a decision by the Labor and Industry Review Commission pertaining to George Anderson's claim for workers' compensation benefits. Fabricating Engineers argues that no credible evidence supports the Commission's decision that the occupational disease portion of Anderson's disability was caused by his employment with Fabricating Engineers. We disagree and affirm the order.
BACKGROUND
Anderson worked as a heavy equipment operator for approximately twenty-five years. On November 12, 1999, he was working as a forklift operator for Fabricating Engineers. He was manually adjusting the width of the metal tongs on the forklift when he felt his back pop. Anderson lost all feeling in his legs, collapsed, and was unable to get up.
Anderson received hospital and follow-up care for his back injury, primarily by Dr. Thomas Rieser and Dr. Timothy DeFlorian. On February 17, 2000, Dr. Stephen Barron examined Anderson at the request of Fabricating Engineers. Barron concluded Anderson had reached a healing plateau and could work with no restrictions or need for further treatment.
On March 2, Rieser examined Anderson. At that time, Anderson was still experiencing pain, but wanted to try to return to work. Rieser released Anderson to return to work without restrictions. On March 18, Anderson began working for Louis Leustek & Sons, Inc. He rotated tasks with a co-worker, working one hour in a crane and one hour reading gauges. Anderson continued to experience back pain and quit working entirely on September 9.
Anderson underwent back surgeries on November 9, 2000, and May 14, 2001. In a July 2002 certified medical report, Rieser opined Anderson was disabled, with a disability date of November 12, 1999. Rieser apportioned the cause of that disability, with 30% due to pre-existing conditions and 70% work-related. He further apportioned the work-related portion, with 30% due to the trauma sustained on November 12, 1999, and 70% due to long-term industrial exposure. DeFlorian likewise opined that Anderson was disabled, stating that Anderson had "some degenerative discs per past records, but barring the injury he had 11-12-99 he should have been able to continue his normal work duties until retirement."
At a May 15, 2003 hearing, the administrative law judge found Rieser's opinion, supported by DeFlorian's opinion, more credible than Barron's. The ALJ found that, as a result of the November 12, 1999 injury, Anderson sustained permanent partial disability on a functional basis, as well as permanent and total disability based on a loss of earning capacity.
Fabricating Engineers sought review of the order by the Commission. The Commission affirmed and adopted the ALJ's findings as its own. It concluded that Fabricating Engineers was
liable for the disability arising not only from [Anderson's] traumatic injury of November 12, 1999, but also from his occupational exposure or disease. The date of disability from the occupational exposure or disease occurred with the November 12, 1999 traumatic injury, as Dr. Rieser indicates at box 8 of his form practitioner's report, and the insurer was on the risk on that date.
Fabricating Engineers commenced this action for review in the circuit court. The circuit court upheld the Commission's findings.
STANDARD OF REVIEW
We review the decision of the commission, not that of the circuit court. Virginia Surety Co. v. LIRC, 2002 WI App 277, , 258 Wis. 2d 665, 654 N.W.2d 306. We may on
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