Marie I. McRoberts v. Labor and Industry Review Commission

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP481 Cir. Ct. No. 2017CV57

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MARIE I. MCROBERTS,

PETITIONER-APPELLANT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION, MCMILLAN ELECTRIC CO.
AND TWIN CITY FIRE INSURANCE COMPANY,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Pierce County:
JOSEPH D. BOLES, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP481

¶1 PER CURIAM. Marie McRoberts appeals from a circuit court
order affirming an order of the Wisconsin Labor and Industry Review
Commission (LIRC). McRoberts argues LIRC erred by finding that McRoberts
was not permanently disabled as a result of an April 17, 2013 fall in her
employer’s parking lot and by dismissing her worker’s compensation application.
We affirm.

BACKGROUND

¶2 Following her slip and fall, McRoberts went to the emergency room
and complained of pain that radiated up the right lateral side of her back. She was
diagnosed with a soft tissue contusion injury. An x-ray showed mild degenerative
disc disease but no evidence of fracture or dislocation. Almost two years later,
McRoberts saw Dr. Michael Fitzgerald. In a report prepared in support of
McRoberts’ claim for worker’s compensation due to her permanent total disability
resulting from her fall, Fitzgerald opined that although the April 17, 2013 fall did
not directly cause any disability, it did cause three percent permanent partial
disability for chronic pain that was aggravated, accelerated and precipitated by the
work injury.

¶3 Doctor Stephen Barron conducted a record review at the request of
McRoberts’ employer’s insurance carrier. In his report, Barron concluded the
work accident caused a temporary aggravation of McRoberts’ pre-existing back
condition. Specifically, he opined that the work injury caused a soft tissue
thoracolumbar sprain that fully resolved by July 17, 2013. In a subsequent report,
after reviewing records that revealed McRoberts suffered severe symptoms in the
same area of her low back immediately prior to her fall, Barron changed his

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opinion and concluded McRoberts’ fall did not cause a new injury and that
McRoberts’ symptoms were simply a manifestation of her pre-existing condition.

¶4 A hearing was held on McRoberts’ application for benefits. At the
outset of the hearing, the administrative law judge (ALJ) noted that McRoberts is
claiming “this accident caused three percent permanent partial disability to the
whole body on a functional basis. She [is claiming] compensation for permanent
and total disability based on a loss of earning capacity. She [is requesting] an
interlocutory order.” Following the hearing, the ALJ found “[McRoberts] has a
long history of back problems. The records document back complaints since
1997.”

¶5 The ALJ noted that McRoberts suffered frequent flare-ups of back
pain. In particular, she suffered a significant aggravation after leaning over to
clean a bathtub in September 2006. She told a physician in May 2008 that her low
back pain had never gone away since the bathtub incident. She had another
significant flare-up after a motor vehicle accident in late December 2009. On
March 23, 2013, McRoberts slipped on ice and reported subsequent low back pain.
On a scale of one to ten, she complained of level nine back pain that was
migrating into her right calf. On April 12, 2013—five days prior to the fall at her
employment—McRoberts saw her primary care physician, complaining of severe
low back pain that started about three weeks prior when she awoke with pain. She
said that on two occasions she spontaneously lost all sensation in her legs and fell
to the ground.

¶6 The ALJ did not find McRoberts credible. The ALJ also found that
Dr. Fitzgerald “did not have an accurate history of [McRoberts’ condition] … and
this weakens his opinion.” The ALJ concluded:

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I am satisfied that applicant sustained a back injury arising
out of her employment on April 17, 2013. Based on the
more credible evidence and the initial opinion from
Dr. Barron, this injury was in the nature of [a]
thoracolumbar sprain. I further adopt Dr. Barron’s
opinions as stated in his first report.[1] Specifically, this
was a soft tissue injury that fully resolved by July 17, 2013.
This injury did not cause any permanent disability on a
functional or vocational basis. The applicant’s ongoing
symptoms are a continuation of her longstanding
pre-existing back problems.

¶7 McRoberts petitioned for LIRC review. McRoberts argued that the
ALJ erred by not concluding she was permanently and totally disabled on an
odd-lot basis2 as a result of the fall in her employer’s parking lot. McRoberts
contended Dr. Barron’s opinion was predicated on a non-existent “phantom” MRI
report, and therefore his medical opinion could not be considered credible and
substantial evidence as a matter of law.

¶8 Regarding the alleged “phantom” MRI, LIRC noted Dr. Barron’s
report discussed a pre-injury MRI, which indicated that McRoberts had significant
low back problems. Barron further stated “she had an MRI scan of her lumbar
spine 1 month prior to the accident [at issue] with an indication of low back pain
extending down the right leg. … Her subsequent MRI scan and x-rays did not

1
The ALJ did not rely on Dr. Barron’s subsequent report.
2
The “odd-lot” doctrine embodies the idea that “total disability under worker’s
compensation law should not be taken literally to mean complete and utter helplessness, because
some injured workers find themselves, because of their age, education, training, and overall
capacity, incapable of becoming ordinary work[ers] of average capacity in any well known
branch of the labor market.” See Ellis v. DOA, 2011 WI App 67, ¶27, 333 Wis. 2d 228, 800
N.W.2d 6. Under the odd-lot doctrine, when an employee is so injured that he or she can perform
no services other than those which are so limited in quality, dependability, or quantity that a
reasonably stable market for them does not exist, the employee is in the position of an “odd-lot”
in the labor market. See id.

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show any objective change in her condition.” However, no MRI scan was taken of
McRoberts’ low back after her fall and prior to the preparation of Barron’s report.
LIRC found the “most reasonable interpretation of the last sentence of this portion
of Dr. Barron’s report is that he intended to say ‘subsequent x-rays’ and not
‘subsequent MRI scan and x-rays.’ … Dr. Barron does not list a post-accident
MRI in his medical record review.” LIRC therefore found that “any reference by
Dr. Barron to a 2014 post-injury MRI is a typo and that he was not relying upon a
phantom report when he reached his conclusions about [McRoberts’] condition.”

¶9 LIRC further found “it is not clear that Dr. Fitzgerald was aware of
[McRoberts’] significant history of bilateral and right-sided back pain.” LIRC
noted McRoberts “had severe pain and symptoms on or around March 25, 2013,
shortly before the work incident. In addition, Fitzgerald did not begin treating
[McRoberts] until early in 2015.” LIRC also noted that McRoberts “was seen for
severe back pain on April 12, 2013, shortly prior to the work incident of April 17,
2013.”

¶10 LIRC also noted that the ALJ did not find McRoberts credible
because, among other things, her testimony was “vague and inconsistent.” After
reviewing the record, LIRC agreed with the credibility impression of the ALJ.
LIRC also agreed with the ALJ’s disability determination, and it affirmed and
adopted as its own the ALJ’s findings and conclusions.

¶11 The circuit court confirmed LIRC’s order. The court concluded this
case “presents a question of credibility of expert witnesses,” and it noted that the
denial of McRoberts’ application “was based on a finding that Dr. Barron’s
opinion, which did not support Ms. McRoberts’ claim, was more credible than
Dr. Fitzgerald’s opinion that supported Ms. McRoberts’ application.” The court

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found LIRC acted within its power and that its findings of fact supported its
decision. The court also found that LIRC’s reliance on Barron’s opinions rather
than Fitzgerald’s opinions was supported by credible and substantial evidence, and
that reasonable minds could accept Barron’s opinions as adequate to support the
denial of the application. McRoberts now appeals.

DISCUSSION

¶12 We review LIRC’s decision, not the circuit court’s. Pick ’n Save
Roundy’s v. LIRC, 2010 WI App 130, ¶8, 329 Wis. 2d 674, 791 N.W.2d 216.
LIRC’s findings of fact are conclusive if supported by credible and substantial
evidence, and factual findings include the drawing of one of several reasonable
inferences from undisputed facts. See WIS. STAT. § 102.23(6) (2017-18); Bosco v.
LIRC, 2003 WI App 219, ¶24, 267 Wis. 2d 293, 671 N.W.2d 331, aff’d, 2004 WI
77, ¶24, 272 Wis. 2d 586, 681 N.W.2d 157. “Credible evidence” is that evidence
which excludes speculation or conjecture. Milwaukee Bd. of Sch. Dirs. v. WERC,
2008 WI App 125, ¶7, 313 Wis. 2d 525, 758 N.W.2d 814. Evidence is
“substantial” if a reasonable person relying on the evidence might make the same
decision. Id. LIRC is the sole judge of the weight and credibility of medical
witnesses. Bumpas v. DILHR, 85 Wis. 2d 805, 817, 271 N.W.2d 142 (Ct. App.
1978). If there are contradictory medical reports, it is for LIRC to decide if one
expert’s testimony is more persuasive than another’s. Id.

¶13 McRoberts requests that we set aside LIRC’s order because it
depends on findings that are not supported by credible and substantial evidence.
In this regard, McRoberts does not question whether Dr. Barron’s opinions are
more credible than Dr. Fitzgerald’s opinions. According to McRoberts, the issue
here is whether Barron’s opinions, “when considering the record as a whole, [are]

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so completely discredited they are incredible as a matter of law[.]” Essentially,
McRoberts argues that Barron’s reference to the non-existent MRI “was not a
typographical error, but the foundational predicate Barron gave for his opinions.”
Because the foundational basis Barron provided for his opinions did not exist,
McRoberts contends the opinions are completely discredited and must be
disregarded.

¶14 First, we conclude LIRC’s finding that Dr. Barron’s report contained
a “typo” is a proper inference drawn from the evidence as a whole. See Crystal
Lake Cheese Factory v. LIRC, 2003 WI 106, ¶25, 264 Wis. 2d 200, 664 N.W.2d
651. LIRC reasonably inferred that Barron intended to say “subsequent x-rays”
and not “subsequent MRI scan and x-rays.” Barron noted at page 3 of his report
that McRoberts’ post-accident x-rays showed “mild degenerative disc disease.”
Throughout that report, Barron noted that McRoberts had MRI scans taken before
her workplace fall. He did not reference anywhere else in his report any
post-injury MRI. As LIRC correctly observed, Barron did not list a post-accident
MRI in his medical record review. It is also undisputed that x-rays were taken
subsequent to McRoberts’ parking lot fall. Moreover, to the extent McRoberts
implies that LIRC’s finding of a typographical error is not evidence that a
reasonable mind might accept, we note that the ALJ and the circuit court made the
same decision as LIRC.

¶15 McRoberts also misconstrues LIRC’s decision by suggesting that
LIRC improperly relied upon the “opinion” of counsel that Dr. Barron’s report
contained a “typo,” which is not evidence. However, LIRC did not consider
counsel’s statement in this regard made at the start of the hearing to be
testamentary evidence. Rather, counsel made an argument, and LIRC stated that it

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“agrees with the respondent” that Barron’s reference to a “subsequent MRI scan”
was a typographical error.

¶16 In her reply brief, McRoberts makes much of the fact that Dr. Barron
did not correct or clarify the “typo” in his subsequent report. There would be no
need for Barron to do so, however, because by then his opinion had changed, and
he no longer concluded McRoberts sustained any injury in her fall.

¶17 We also reject McRoberts’ contention that a foundational basis for
Dr. Barron’s opinions did not exist. LIRC’s finding that McRoberts’ slip and fall
in her employer’s parking lot did not cause a permanent and compensable
workplace injury relied in part on Barron’s expert opinion from his first report. In
that report, Barron opined that McRoberts suffered a thoracolumbar soft tissue
sprain; that the fall temporarily aggravated her longstanding pre-existing back
condition; and that the soft tissue sprain resolved within three months. LIRC also
relied on Barron’s explanation that before her workplace injury, McRoberts had “a
strong history of prior complaints of thoracolumbar pain” and had been “treated
for years for this condition.” Barron also emphasized that less than one month
before her fall in the employer’s parking lot, McRoberts had an MRI scan with an
indication of low back pain extending down her right leg. Barron’s first report
constituted credible and substantial evidence supporting LIRC’s decision.

¶18 Given the above analysis, together with the remainder of the
evidence—including but not limited to LIRC’s findings that McRoberts was not
credible and that Dr. Fitzgerald’s opinion was based, in part, upon an incorrect
history—LIRC reasonably concluded that McRoberts sustained a soft tissue injury
that fully resolved by July 17, 2013, as opined by Dr. Barron in his first report.
LIRC correctly denied McRoberts’ claim for permanent partial disability and it

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properly found that her ongoing symptoms were a continuation of her
longstanding pre-existing back problems.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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