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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.
November 16, 2000
                                                                                                  A  party  may  file  with  the  Supreme  Court  a
                                                                                                  petition  to  review  an  adverse  decision  by  the
                                                                        Cornelia G. Clark
                                                                                                  Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                        Clerk, Court of Appeals
                                                                                                  RULE 809.62.
                                                                        of Wisconsin
No.                                                                     00-0569
STATE OF WISCONSIN                                                      IN COURT OF APPEALS
                                                                        DISTRICT IV
ANITA NOVAK,
PLAINTIFF-RESPONDENT,
V.
LABOR AND INDUSTRY REVIEW COMMISSION,
DEFENDANT-APPELLANT,
SECURITY INSURANCE GROUP C/O EBI ORION GROUP,
AND MINERAL POINT CARE CENTER,
DEFENDANTS.
APPEAL  from  an  order  of  the  circuit  court  for  Iowa  County:
GEORGE S. CURRY, Judge.  Reversed and cause remanded with directions.




No. 00-0569
Before Vergeront, Deininger and Hue, JJ.1
¶1                                                                                          PER CURIAM.    The  Labor  and  Industry  Review  Commission
(LIRC) appeals a circuit court order that set aside its decision to reduce the amount
of worker’s compensation benefits awarded to Anita Novak.   The circuit court
concluded that LIRC’s decision was improperly based on a medical report which
was outdated and which neither party had asked to be followed.    Because we
conclude that the medical report upon which LIRC relied meets the threshold of
substantial and credible evidence, we reverse the circuit court’s order and remand
with directions to reinstate LIRC’s decision.
BACKGROUND
¶2                                                                                          It is undisputed that Novak suffered a back injury on May 1, 1995,
while lifting a patient in the course of her duties as a certified nursing assistant.
The parties disagree, however, on the nature and extent of Novak’s injury and the
amount of medical expenses which can be attributed to it.
¶3                                                                                          Novak  was  initially  treated  by  Dr.  Gordon  Grieshaber   on
May 3, 1995.   He diagnosed a lumbar strain with secondary myofascial back pain,
and he prescribed medication and physical therapy.   In June, Grieshaber released
Novak  to  return  to  work  for  no  more  than  four  hours  per  day  with  lifting
restrictions, and Novak assumed receptionist duties for her employer for several
months.   Grieshaber added fibromyalgia to Novak’s diagnosis in September, as
her back pain continued.
1  Circuit Judge William F. Hue is sitting by special assignment pursuant to the Judicial
Exchange Program.
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No. 00-0569
¶4                                                                                       In November, Dr. James G. Gmeiner examined Novak on behalf of
her employer’s insurer and diagnosed a soft tissue strain/sprain to the lumbar
spine, accompanied by “illness behavior” and “hidden factors” which appeared to
have hindered Novak’s recovery.   Gmeiner concluded that Novak had reached a
healing plateau from the work injury by October 25, 1995, and he completed a
WC-16B practitioner’s report form stating that there was no permanent disability
and Novak could return to work without restriction.
¶5                                                                                       In December, the employer offered Novak the opportunity to return
to work as a certified nursing assistant, but she declined on the basis that she could
not physically tolerate the work.    She began seeing a chiropractor, Dr. James
Wenger, who diagnosed lumbar segmental dysfunction, low back pain, cervical
segmental dysfunction, and neck pain, and recommended that she not work more
than half days.
¶6                                                                                       By May 1996, Wenger concluded that Novak had plateaued in her
chiropractic  care  and  referred  her  to  Dr.  Ray  Purdy.                             Purdy  diagnosed
lumbrosacral pain of soft tissue origin and referred Novak to Dr. James Leonard at
the UW Rehabilitation Medicine Clinic.   Leonard diagnosed mechanical low back
pain related to the original back strain.    He believed that Novak had not yet
reached an end to her healing, and could benefit from additional physical therapy.
Leonard filled out a WC-16B in which he concluded that Novak had reached her
healing plateau as of July 19, 1996, with three percent permanent partial disability,
and said she could return to full-time work thereafter with a twenty-pound lifting
restriction.
¶7                                                                                       In October  1996, Novak got a job answering telephone calls for
Lands’ End, where she worked twenty to thirty hours per week.   She took a second
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No. 00-0569
part-time job in March 1997, at a convenience store where she worked some eight-
hour shifts. In August 1997, the employer offered Novak a full-time position as a
hospitality aide, which involved the occasional lifting of thirty pounds.   Novak
rejected  the  offer  based  on  Wenger’s  four-hour-a-day  limitation  and  lifting
restrictions.
¶8                                                                                           Wenger  completed  WC-16B  forms  dated  March  13,  1997  and
January 20, 1998.   Wenger noted that Novak had been born with an extra vertebra,
which made her injury more difficult to treat and placed her at higher risk for
further injury.    Wenger concluded that Novak was fifteen percent permanently
disabled, and continued to recommend that she be restricted to half-days with
lifting  and  movement  restrictions.     Grieshaber  completed  a  WC-16B  dated
March 23,  1998,  in  which  he  concurred  with  Leonard’s  assessment  of  three
percent  permanent  disability,  but  also  accepted  Wenger’s  proposed  lifting
restrictions and limitation to four-hour work days.
¶9                                                                                           Novak’s  vocational  expert,  Veronica  Butler,  assessed  Novak  as
suffering a fifty-nine to sixty-seven percent loss of earning capacity based on
Wenger’s restrictions, and as suffering no loss given Gmeiner’s opinion.    The
employer’s vocational expert, John Meltzer, assessed an earning capacity loss of
fifty-five  to  sixty-five  percent  based  on  Wenger’s  restrictions,  five  to  fifteen
percent  based  on  Leonard’s  opinion  that  Novak  could  work  full-time  with
restricted lifting, and no loss based on Gmeiner’s opinion.
¶10    The administrative law judge (ALJ) adopted Wenger’s opinion that
Novak was fifteen percent permanently disabled and should be restricted to four-
hour working days, which the ALJ found would reduce her earning capacity by
fifty percent.   The ALJ ordered the insurer to pay $4,063.70 in unpaid medical
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No. 00-0569
bills and to reimburse Anita for an additional $3,384.57 for medical bills which
she had already paid.   The ALJ reserved jurisdiction over the matter to deal with
further treatment arising from the injury.
¶11    The employer appealed to LIRC, which adopted Leonard’s report as
the most credible medical evidence.   LIRC reduced Novak’s earning capacity loss
from  fifty  percent   to  ten  percent,  reduced  the   medical  payments  and
reimbursements to $2,520.80 from the $7,448.27 awarded by the ALJ, and closed
the matter from future claims for additional treatment.
¶12    Novak appealed to the circuit court.    She submitted a letter from
Leonard in which he noted that he had no basis for disagreeing with the treatment
recommended  by  those  physicians  who  had  examined  Novak  after  he  had
completed his report.   The circuit court set aside LIRC’s decision on the grounds
that Leonard’s report was insufficient to support it.    LIRC appeals the circuit
court’s order.
ANALYSIS
¶13    We first note that our review on certiorari is limited to the record
created before the commission.   See State ex rel. Whiting v. Kolb, 158 Wis. 2d
226, 233, 461 N.W.2d 816 (Ct. App. 1990).   Therefore, we will not consider the
letter Leonard prepared after LIRC’s decision.2   We will consider only whether:
2  Novak argues that LIRC should have set aside its decision and reopened the matter to
accept Leonard’s letter as newly discovered evidence under WIS. STAT. § 102.18(4)(c) (1997-98).
It appears, however, that Novak first made this motion after the circuit court had already decided
the present certiorari action.   Even if the motion to reopen were properly before this court,
evidence is not “newly discovered” if it could have been obtained earlier with due diligence.
Novak has not given any reason why she could not have obtained a clarifying letter from Leonard
prior to her initial hearing.
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No. 00-0569
(1) the commission stayed within its jurisdiction,  (2) it acted according to law,
(3) its action was arbitrary, oppressive or unreasonable and represented its will and
not  its  judgment,  and                                                                    (4) the  evidence  was  such  that  the  commission  might
reasonably make the order or determination in question.   See id.
¶14    WISCONSIN STAT. § 102.23(6) (1997-98)3 permits a court to set aside
an agency decision which “depends upon any material and controverted finding of
fact  that  is  not  supported  by  credible  and  substantial  evidence.”    Substantial
evidence is that which is  “relevant, probative, and credible, and which is in a
quantum that will permit a reasonable factfinder to base a conclusion upon it.”
See Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169 (1983).
We will search the record to locate evidence which supports the commission’s
decision, even when a factual finding is contrary to the great weight and clear
preponderance of the evidence.   See Vande Zande v. DILHR, 70 Wis. 2d 1086,
1097, 236 N.W.2d 255 (1975).
¶15    Novak first challenges the evidence supporting the commission’s
decision  on  the  grounds  that  Leonard’s  report  was  not  properly  before  the
commission.   She points out that the report was not offered as a separate exhibit
and asserts that she did not have an opportunity to cross-examine the doctor.   See
WIS. STAT.  § 102.17(1)(d) and WIS. ADMIN. CODE  § DWD  80.22(2).    We see
nothing in the cited statute or administrative rule which requires a practitioner’s
report to be offered separately in order to be admissible.    Moreover, because
Novak  herself  offered Leonard’s  report  into  evidence  as  part  of  her  certified
medical history file, without objection, the commission was never called upon to
3  All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
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No. 00-0569
decide whether or not Leonard was available.   Novak has therefore waived any
argument  that  the  report  was  inadmissible.    Because  the  doctor’s  report  was
certified as a medical record and properly offered and received into evidence, the
commission could properly consider it.
¶16    Novak next claims that Leonard’s report did not rise to the level of
substantial and credible evidence.   She argues that the report was remote in time,
of an interim nature, and discredited by other fully established facts.   The fact that
the report was nearly two years old does not make it incredible as a matter of law,
however.    See Bourassa v. Gateway Erectors, Inc.,  54 Wis. 2d  176,  184,  194
N.W.2d 602 (1972) (reviewing a five-year-old report).   Novak’s injury itself had
occurred nearly three years prior to the hearing.   We see nothing “interim” about
Leonard’s conclusion that Novak had reached a healing plateau over a year after
the incident.   Leonard specifically commented that Novak was likely to continue
to experience some back pain, but believed that any future medical treatment
would not be assessable to the work injury.   The fact that some other doctors later
offered contradictory opinions does not make the contrary opinions “established
facts.”
¶17    It is the exclusive function of the commission to weigh the medical
evidence and reconcile inconsistencies.   See Manitowoc County v. DILHR, 88
Wis. 2d 430, 437, 276 N.W.2d 755 (1979).   In any event, Leonard’s opinion that
Novak was only three percent disabled and could resume working full time was
also  supported  by  Grieshaber’s  opinion  that  Novak  was  only  three  percent
disabled, Gmeiner’s opinion that Novak could resume working full time, and the
fact that Novak had, in fact, resumed working a number of eight-hour shifts.   We
are satisfied that Leonard’s report constituted substantial and credible evidence
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No. 00-0569
supporting the commission’s determination.   We reverse the order of the circuit
court and direct it to enter an order affirming LIRC’s decision.
By the Court.—Order reversed and cause remanded with directions.
                                                                                   This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                          (b)5.
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