Opinion
November 3, 1961 —
November 28, 1961.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the briefs of H. R. George of Milwaukee.
For the respondents there was a brief by Kivett Kasdorf, attorneys, and Clifford C. Kasdorf of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.
Action by Lambrecht Farms and Great American Insurance Company, its workmen's compensation insurance carrier, against the Industrial Commission and Thomas Cathey, to review an interlocutory order of the commission awarding workmen's compensation benefits to Thomas Cathey.
The claimant, Cathey, was employed by Lambrecht Farms. While dressing poultry on April 2, 1958, he slipped and fell on a concrete floor. He struck the left rear and left side of his head and also his left elbow and hip. Prior to this accident he had no serious disabling illness.
On April 14, 1958, claimant consulted a dentist. At that time the left side of his face was badly swollen and he had difficulty in opening his mouth. The dentist felt that the swelling was due to an infection but that it was not due to dental infection. On April 16th the claimant again consulted the dentist. At that time the swelling was more pronounced and he could not open his mouth. The dentist extracted a tooth that had broken off, but referred claimant to an oral surgeon. The claimant was then hospitalized for about three weeks while the inflammation or cellulitis was treated. After being released from the hospital the condition persisted and claimant saw a physician who diagnosed the swelling as an adenitis and cellulitis. The physician referred claimant to a neurologist and psychiatrist. He was later examined by a neurologist at the request of the employer.
The dentist and the various doctors testified at the hearing on the claim for compensation before an examiner for the commission. The examiner found that it would be speculative to hold that the cellulitis was the result of the fall on April 2, 1958; that the cellulitis was not the result of such fall; that such disability as the applicant suffered was the result of the cellulitis; and that claimant sustained no disability as a result of the fall.
The claimant petitioned for review of the findings of the examiner. Upon review the commission reversed the examiner and found that on the basis of the evidence presented the cause of the cellulitis was not definitely established, but that considering the evidence, including the time element, such cellulitis was most probably due to the injury of April 2, 1958. An interlocutory award was made on January 29, 1960, and the present action was commenced to review that award.
The trial court, by judgment dated February 17, 1961, set aside the interlocutory award of the commission and remanded the record to the commission for a review of the transcript of testimony taken and for such other action as the Industrial Commission may in its discretion decide. The claimant appealed from the judgment.
The trial court in a lengthy memorandum decision reviewed the testimony in the record, together with many decisions of this court involving claims for workmen's compensation. The trial court's determination was based in part upon the fact that when the Industrial Commission reviewed the findings and order of its examiner, it did not have before it a complete transcript of the testimony but only had a synopsis thereof prepared by the examiner. Therefore the case was remanded to permit the commission to review the findings and order of its examiner after a study of the entire transcript and to take such other action as it may in its discretion decide.
Although the trial court stated in its memorandum opinion that it is not attempting to infer what findings the commission should ultimately make, the opinion shows that the court did weigh the testimony, particularly that of one witness, and made certain derogatory remarks with reference to it. Pointing to the testimony of the neurologist and psychiatrist who had examined the claimant both for the claimant and the insurance carrier, and particularly to that portion that might sustain the finding of the commission, the trial court stated that it was inconsistent, a fugitive opinion diametrically opposed to previous testimony, and a "quickie" at the tag end of the testimony. In spite of the assurance by the trial court that it was not attempting to infer what the commission should find, it is apparent that its language could only have that effect.
While we feel that a review of the entire transcript of the testimony is desirable, we affirm the judgment of the trial court with the suggestion that the commission disregard the weighing of the testimony and the remarks concerning the same by the trial court. The judgment permits such further action as the commission may decide, which is broad enough to permit a further hearing if the commission deems such action to be desirable.
By the Court. — Judgment affirmed.