R. T. Madden, Inc. v. Department of Industry, Labor & Human Relations

169 N.W.2d 73, 43 Wis. 2d 528, 1969 Wisc. LEXIS 1000
CourtWisconsin Supreme Court
DecidedJuly 3, 1969
Docket263
StatusPublished
Cited by61 cases

This text of 169 N.W.2d 73 (R. T. Madden, Inc. v. Department of Industry, Labor & Human Relations) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R. T. Madden, Inc. v. Department of Industry, Labor & Human Relations, 169 N.W.2d 73, 43 Wis. 2d 528, 1969 Wisc. LEXIS 1000 (Wis. 1969).

Opinions

Heffernan, J.

The. power of this court to review the findings of fact made by the department is governed by statute and is limited in scope. Sec. 102.23 (1), Stats., provides:

“102.23 Judicial review. (1) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive .... the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
“(a) That the commission acted without or in excess of its powers.
“ (b) That the order or award was procured by fraud.
“(c) That the findings of fact by the commission do not support the order or award.”

The purpose of these limitations was stated in the concurring opinion of Mr. Justice Crownhart in McCarthy v. Sawyer-Goodman Co. (1927), 194 Wis. 198, 205, 215 N. W. 824:

“. . . the legislature, in passing the workmen’s compensation act, in the interest of speedy justice for the workingmen, sought to limit appeals and protracted litigation.”

It is explicit in the legislation that the administrative powers vested by the legislature in the department are not to be exercised by the courts. A reviewing court, even though it has the complete record before it, has no authority to make its own findings of fact. Under the statute it may only determine, as set forth in sec. 102.23, Stats., in setting aside an award “That the findings of fact by the commission do not support the order or [537]*537award.” In the instant case the circuit court, in applying the statutory mandate applicable on review, stated:

“This determination resolved the factual issues presented to the agency in favor of the employee. If these findings of fact are based upon credible evidence and logical inferences therefrom, then they are binding and conclusive on this court.
“This then provokes the first inquiry on review: Is there any credible evidence to sustain the result reached ?”

In reaching this conclusion the trial judge relied upon the succinct statement of the rule set forth in Unruh v. Industrial Comm. (1959), 8 Wis. 2d 394, 398, 99 N. W. 2d 182:

“The question is not whether there is credible evidence in the record to sustain a finding the commission did not make, but whether there is any credible evidence to sustain the finding the commission did make.”

A long line of cases by this court support the use of the “any credible evidence” test. This test was recently used by this court in Detter v. ILHR Department (1968), 40 Wis. 2d 284, 287, 161 N. W. 2d 873. We therein relied upon Lewellyn v. ILHR Department (1968), 38 Wis. 2d 43, 155 N. W. 2d 678, which approved the standard of Schuh v. Industrial Comm. (1958), 2 Wis. 2d 611, 614, 87 N. W. 2d 256, that “Findings of fact by the commission must stand in the reviewing courts if there is any credible evidence to support them.”

On this appeal, however, Madden Company contends that the standard of “any credible evidence” relied upon by the trial court is an incomplete test and that the only standard properly to be applied was stated in Shawley v. Industrial Comm. (1962), 16 Wis. 2d 535, 539, 114 N. W. 2d 872. Therein we said:

“In passing on the issue of whether the evidence sustains a finding of the commission made in a workmen’s [538]*538compensation proceeding, the test is whether there is credible evidence which, if unexplained, would support the finding.” (Emphasis supplied.)

The appellant herein takes the position that the “unexplained” rule emphasizes that a finding of fact of the department will not be affirmed as a matter of course just because there is some credible evidence in the record to support it. Appellant contends that any other position would reduce the judicial review of a question of fact to a nullity. In its brief appellant concedes that there is some credible evidence to support the findings of the examiner, but it contends this court has the right and obligation to look into the sufficiency of the evidence. The sufficiency of the evidence, it claims, is determined by whether or not the evidence underpinning the department’s findings is explained away by other credible evidence in the record, so that it loses its probative value. It also contends that, although the burden of proof is less than in a civil case, the basic facts must be established within a reasonable certainty by a preponderance of the evidence. Basically, appellant takes the position that the facts relied upon by the department show that Madden’s conduct was reasonable under the circumstances. It recounts the facts in the record that Madden’s supervisor, a week before the accident, ordered a new set of drive wheels, that it would easily take a week to get replacements, that at least one operator of the machine stated it was operating satisfactorily, and that no one, prior to the accident, claimed that the saw was unsafe, although the maintenance man for Madden acknowledged that he had received complaints about the operation of the machine. The employer points out that there was testimony that the slippage of the machine might have been caused, not by the admittedly worn wheels, but as the result of failure to run the machine at the proper speed, or that it was not properly placed on the ramp so that it ran off of the two-by-fours and tipped over. [539]*539It apparently is the contention of the appellant that these items of evidence, which admittedly appear of record, explain away equally credible evidence which support the department’s findings.

Thus, if we were to follow the “unexplained” rule advocated by the appellant and concur in its interpretation of the meaning of the rule, we would, under its theory, be obliged to reverse the department and the trial court. On the other hand the department, while not agreeing with the interpretation of the “unexplained” rule advanced by the appellant, and taking the position that the evidence relied upon by the appellant is merely contradictory and should be disregarded in the face of evidence that supports the findings, urges that this court delete the phrase of “if unexplained” from the standard of review frequently used by this court and suggests that henceforth the court rely solely upon the standard of whether there is “any credible evidence” to support the findings of the department. It argues that the phrase, “evidence which if unexplained,” encourages unwarranted and meritless litigation, contrary to the purposes of the Workmen’s Compensation Act, which was designed to settle the claims of workmen injured in industrial accidents without needless appeals and protracted litigation.

The department argues that the “if unexplained” phrase should be deleted because it constitutes a confusion and perversion of the language and meaning of the standard of review set forth in Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 83, 85, 258 N. W. 336. Therein Mr. Chief Justice Rosenberry, speaking for the court, in reliance upon 5 Wigmore, Evidence, sec. 2494, concluded that the test that should be applied to industrial commission cases is:

“ ‘Are there facts in the evidence which if unanswered

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Bluebook (online)
169 N.W.2d 73, 43 Wis. 2d 528, 1969 Wisc. LEXIS 1000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-t-madden-inc-v-department-of-industry-labor-human-relations-wis-1969.