2004AP2157 Wisconsin Insurance Security Fund and Eau Galle Cheese Factory v. Labor and Industry Review Commission

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“[C]redible evidence affirmatively supports the Commission’s findings. The nature of Kallstrom’s work is undisputed. The work required Kallstrom to reach into the middle of a table that measured ten feet wide by five feet high so that he could manually cut large slabs of cheese with a hand-held knife. Kallstrom then used steel hoops to grasp the cheese blocks and manually stack them on a press. The average weight of these cheese blocks with the hoops was thirty-five pounds….

“Kallstrom’s most recent treating physician, Dr. T. Sunil Thomas, examined Kallstrom and discussed with him his work duties. The doctor also read Kallstrom’s administrative testimony on the topic. Dr. Thomas stated that if the duration, frequency, and extent of workplace exposure was accurately described by Kallstrom, it was Dr. Thomas’s opinion to a reasonable degree of medical probability that Kallstrom’s work activities starting in 1985 and ending in 2000 were at least a material contributory factor in Kallstrom’s back injury….

“This case involves the Commission weighing conflicting expert medical evidence. We do not reweigh the credibility of such evidence. See Valadzic, 92 Wis. 2d at 598. The Commission found Dr. Thomas’s assertions to be more credible, and thus found that the degenerative disk condition was caused by work-related activities. Because there is credible evidence to support the Commission’s finding, it will not be disturbed.”

Finally, we conclude that “when, as here, an insurer becomes subrogated by paying medical expenses arising from injuries that are compensable under the worker’s compensation statutes, and the employer’s worker’s compensation insurance carrier is in liquidation, Wis. Stat. § 646.31(11) precludes the Commission from ordering the employer to reimburse the subrogated insurer for those expenses. Consequently, we remand with directions that the circuit court amend its order so that it directs the Commission to delete its directive that Eau Galle Cheese reimburse Kallstrom’s health care insurer.”

Affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

Dist III, Pepin County, Morey, J., Lundsten, P.J.

Attorneys:

For Appellant: Christopher D. Walther, Milwaukee

For Respondent: William W. Cassel, Madison; Jeffrey J. Klemp, Menomonie