COURT OF APPEALS

DECISION

DATED AND FILED

May 25, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2098 Cir. Ct. No. 2019CV1626

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

HOWARD L. HARRIS,

PETITIONER-APPELLANT,

V.

DEPARTMENT OF WORKFORCE DEVELOPMENT,

LABOR AND INDUSTRY REVIEW COMMISSION,

NICOLE D. FIELDS AND SOCIETY INSURANCE,

A MUTUAL COMPANY,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County: 

JEFFREY A. CONEN, Judge. Affirmed.

Before Brash, P.J., Graham and White, 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. 2019AP2098

2

¶1 PER CURIAM. Howard L. Harris appeals a circuit court order

affirming a decision of the Wisconsin Labor and Industry Review Commission

that denied Harris’s claim for benefits under the Wisconsin Worker’s 

Compensation Act, WIS. STAT. ch. 102 (2019-20).

1

 Harris argues that the 

Commission’s decision was not based on substantial and credible evidence. We 

disagree and affirm.

BACKGROUND

¶2 Harris was employed as a caregiver by a community-based 

residential facility called Homes, Inc.

2 The work incident for which Harris sought 

worker’s compensation benefits took place on June 19, 2015. On that date, he

discovered a resident sitting on the floor. He attempted to lift the resident, who

fell back into his arms, causing Harris to feel a “pop” in his back. Harris

immediately reported the injury to his employer and was sent home.

¶3 Two days later, Harris was treated at a local emergency department 

for lower back pain. When asked about his prior medical history, Harris stated 

that he had not experienced significant lower back pain since a motor vehicle 

accident in 2005. After medical testing and imaging, it was determined that Harris 

had subtle narrowing of the L4-5 disc, a small left lateral recess disc herniation, 

mild right and left foraminal narrowing in the left lateral recess at L4-5, and mild

bilateral foraminal narrowing at L5-Sl.

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 Nicole D. Fields and Society Insurance, A Mutual Company, are listed as respondents

to this appeal. Fields is the owner of Homes, Inc., and Society is its insurer.
No. 2019AP2098

3

¶4 Harris was referred to Dr. Thomas Perlewitz, who ultimately 

recommended surgical intervention. After recovering from the surgery, Harris

was told that he could return to sedentary work with restrictions. Dr. Perlewitz 

eventually updated these restrictions, and Harris was allowed to work a light-duty 

job up to eight hours per day. Despite attempts at conservative pain management,

Harris reported a worsening of his symptoms, and a functional capacity evaluation 

suggested that more significant limitations were needed.

¶5 Approximately one year later, Harris filed an application seeking

reimbursement of medical expenses and worker’s compensation benefits for 

permanent disability. In support of his claim, Harris submitted reports from 

Dr. Perlewitz, who opined that the June 2015 work incident “served to aggravate 

and accelerate [Harris’s] underlying [lumbar disc degenerative] condition beyond 

its normal progression.” See Lewellyn v. Industrial Comm’n, 38 Wis. 2d 43, 

58-59, 155 N.W.2d 678 (1968) (providing the applicable standard to obtain 

worker’s compensation benefits on the ground that a work injury aggravated a 

preexisting medical condition). Dr. Perlewitz assigned 27 percent permanent

partial disability to Harris’s back and adopted the work restrictions delineated in 

the functional capacity evaluation.

¶6 Homes, Inc. and its insurance provider sought an independent 

medical evaluation by Dr. William Monacci, and they relied on Dr. Monacci’s

opinion to deny Harris’s eligibility for benefits.

3

 Initially, Dr. Monacci agreed 

 

3

 Homes, Inc. and Society Insurance also submitted the report of a vocational expert, 

who opined that Harris had not lost earning capacity. This report was in response to reports from 

Harris’s vocational expert, which outlined Harris’s work limitations and opined that he had lost 

earning capacity. The competing vocational expert opinions did not factor into the Commission’s 

decision to deny benefits, and we consider them no further.
No. 2019AP2098

4

with Dr. Perlewitz that the work incident precipitated, aggravated, and accelerated 

Harris’s preexisting condition beyond its normal progression. However, 

Dr. Monacci qualified this initial opinion with the caveat that he had not received 

or reviewed Harris’s prior medical records.

¶7 As discussed in greater detail below, Harris’s medical records 

document an extensive history of reported low back pain and injuries, including

previous work-related back injuries and injuries following at least three separate 

motor vehicle accidents. Among other things, the medical records reveal that

Harris consulted with a doctor on April 7, 2015—the same date he started working 

for Homes, Inc. and just three months before the June 2015 work incident. 

According to the doctor’s notes from this consultation, Harris rated his lower back 

pain as “10/10.” He told his doctor that the pain “[h]appens after a day of work,” 

and that it “started about 7 years ago but was exacerbated by a recent car 

accident.”

¶8 After reviewing Harris’s medical records, Dr. Monacci revised his 

opinion and concluded that Harris’s pain syndrome was a chronic condition, and 

that the June 2015 work incident did not cause a significant change in his 

condition. Dr. Monacci noted Harris’s significant history of low back pain and 

symptoms consistent with those reported by Harris after the work incident. He 

further concluded that the MRIs taken after the work incident were “essentially 

identical” to the MRIs taken in 2005 and 2007, years before the work incident.

¶9 Harris’s claim proceeded to an administrative hearing before an

administrative law judge (ALJ). During the hearing, the parties more or less 
No. 2019AP2098

5

agreed that Harris had a permanent partial disability.4 The dispositive issue was 

the cause of the disability—that is, whether Harris’s preexisting condition had

been precipitated, aggravated, and accelerated by the work incident, or whether his 

condition following the work incident was a manifestation of an ongoing pain 

syndrome dating back years.

¶10 After considering the evidence, the ALJ found Dr. Monacci’s expert 

opinion to be more credible and persuasive than the expert opinion submitted by 

Dr. Perlewitz, and the ALJ determined that Harris’s medical history created 

legitimate doubt that Harris’s condition was precipitated, aggravated, and 

accelerated by the June 2015 work incident. Harris had testified that he 

experienced only temporary pain after each of his prior injuries and that he did not 

have any back problems when he went to work for Homes, Inc., but the ALJ did 

not credit this testimony. According to the ALJ, “inconsistencies between 

[Harris’s] testimony regarding his medical history and the medical records cast

doubt on his credibility as a witness.” Based on these findings and credibility 

determinations, the ALJ dismissed Harris’s claim for benefits.

¶11 Harris sought review by the Commission, which adopted the ALJ’s 

findings, conclusions, and rationale as its own. The Commission concluded that 

the evidence did not support Harris’s claim that the June 2015 work incident 

resulted in a compensable work injury. The circuit court upheld the Commission’s 

decision, and this appeal follows.

 

4

 Dr. Monacci and Dr. Perlewitz both reported that Harris suffered a permanent partial 

disability, and they essentially agreed upon the extent of that disability. As stated above,

Dr. Perlewitz assigned 27 percent permanent partial disability to Harris’s back. Dr. Monacci 

opined that Harris had a 25 percent permanent partial disability.
No. 2019AP2098

6

DISCUSSION

¶12 In an appeal from an administrative agency decision, we review the 

agency’s decision, rather than the circuit court’s decision. American Mfrs. Mut. 

Ins. Co. v. Hernandez, 2002 WI App 76, ¶11, 252 Wis. 2d 155, 642 N.W.2d 584. 

We will reverse the Commission’s decision only if it acted without or in excess of 

its powers, if its order was procured by fraud, or if its findings of fact do not 

support the order or award. WIS. STAT. § 102.23(1)(e). When the Commission’s 

decision turns on its findings of fact, we will affirm if the record contains credible

and substantial evidence to support its findings, even if there is evidence that 

might lead to a contrary determination. See § 102.23(6); see also Valadzic v. 

Briggs & Stratton Corp., 92 Wis. 2d 583, 592-94, 286 N.W.2d 540 (1979).

¶13 An employee seeking worker’s compensation benefits has the 

burden of proof, and benefits should be denied when the evidence raises a 

“legitimate doubt” about whether the employee is eligible for benefits. Bumpas v. 

DILHR, 95 Wis. 2d 334, 342, 290 N.W.2d 504 (1980); see also Kraynick v. 

Industrial Comm’n, 34 Wis. 2d 107, 110-11, 148 N.W.2d 668 (1967). In making 

a legitimate doubt determination, the Commission “cannot rely solely upon its 

‘cultivated intuition.’” Kowalchuk v. LIRC, 2000 WI App 85, ¶8, 234 Wis. 2d 

203, 610 N.W.2d 122. “A legitimate doubt comprises ‘some inherent 

inconsistency ... or conflict in the testimony.’” Id. (citations omitted).

¶14 Employees claiming benefits must prove, among other things, that 

the “accident or disease causing injury arises out of the [claimant’s] employment.” 

WIS. STAT. § 102.03(1)(e). Whether an injury was caused by a workplace accident 

is a question of fact. See Bumpas, 95 Wis. 2d at 342. Disputes about causation 

often arise when an employee claims that a workplace incident exacerbated the 
No. 2019AP2098

7

employee’s preexisting condition. Our supreme court has explained that 

employers take their employees “as is” and cannot deny liability simply based on a 

preexisting condition. See Brown v. Industrial Comm’n, 9 Wis. 2d 555, 570, 101 

N.W.2d 788 (1960).

5

 “If the work activity precipitates, aggravates and accelerates 

beyond normal progression[] a progressively deteriorating or degenerative 

condition, it is an accident causing injury or disease and the employee should 

recover ....’” Lewellyn, 38 Wis. 2d at 59.

¶15 Here, the parties dispute causation, and the Commission resolved 

this dispute by adopting the ALJ’s findings and conclusions. As explained above, 

the ALJ evaluated the competing expert reports submitted by Dr. Monacci and 

Dr. Perlewitz, and it found that Dr. Monacci offered the more credible and 

persuasive opinion that Harris’s work incident did not cause his injury. On appeal, 

Harris asserts that the Commission violated his due process rights and public 

policy by affirming the ALJ’s “erroneous decision.” He argues that the decision is 

erroneous because it relies “solely” upon intuition, conjecture, and speculation, it 

is not based on credible and substantial evidence, it adopts “unsubstantiated 

assumptions” by Dr. Monacci that were contradicted by Dr. Perlewitz, it is “laced 

with improper credibility determinations,” and it “completely disregard[s] key and 

relevant facts.” For all of these reasons, Harris contends that the Commission

 

5

 See also M. & M. Realty Co. v. Industrial Comm’n, 267 Wis. 52, 63, 64 N.W.2d 413 

(1954) (“the fact that [an employee] may be susceptible to injury by reason of a preexisting 

physical condition does not relieve the ... employer from being held liable for [worker’s]

compensation benefits if the employee becomes injured due to [their] employment”).
No. 2019AP2098

8

acted “in excess of its powers” when it concluded that there was a legitimate doubt 

that he was entitled to benefits.

6

¶16 As demonstrated by the foregoing, Harris is attempting to frame his 

argument as one based on due process and questions of law. However, all of 

Harris’s arguments are based on the premise that the Commission erroneously 

credited Dr. Monacci’s opinions, and that it should have instead credited the 

contrary evidence provided by Harris’s own testimony and Dr. Perlewitz’s written 

report.

7

 Therefore, the dispositive question is whether the Commission’s findings 

of fact and credibility determinations are supported by substantial and credible 

evidence. See WIS. STAT. § 102.23(6) (providing that a reviewing court “shall not 

substitute its judgment for that of the commission as to the weight or credibility of 

the evidence on any finding of fact,” but may “set aside the [C]ommission’s order 

or award” if it “depends on any material and controverted finding of fact that is 

not supported by credible and substantial evidence”); see also Valadzic, 92 Wis 2d 

at 592-94.

¶17 Harris argues that the Commission should have adopted

Dr. Perlewitz’s opinion about the cause of his current back condition. He argues 

that, as the treating physician, Dr. Perlewitz is in the best position to evaluate

Harris’s medical condition. Harris contends that Dr. Monacci’s opinion should 

 

6

 Harris also asserts that he was denied the right to a hearing, but it cannot be disputed 

that Harris participated in an evidentiary hearing before the ALJ in which he provided testimony 

and evidence. We address this assertion no further.

7

 Indeed, in his reply brief, Harris asserts that we should reverse the Commission’s 

decision because it “(1) erroneously [found] Harris not to be credible; (2) incorrectly 

determin[ed] that Dr. Monacci is more credible than Dr. Perlewitz; and (3) fail[ed] to base its 

findings of fact on credible and substantial evidence.”
No. 2019AP2098

9

not be believed because he was “hired by the insurance company,” he “examined 

Harris on [only] one occasion,” and he “bears no responsibility” for Harris’s 

treatment. In other words, Harris invites us to reevaluate the competing expert 

testimony and make our own determination as to which expert is more credible.

¶18 We decline this invitation because the Commission “‘is the sole

judge of the weight and credibility of the witnesses’” offering medical testimony, 

and it is the Commission’s role to reconcile any conflicts or inconsistencies. 

Wisconsin Ins. Sec. Fund v. LIRC, 2005 WI App 242, ¶18, 288 Wis. 2d 206, 707 

N.W.2d 293 (emphasis added) (citation omitted); see also E. F. Brewer Co. v. 

DILHR, 82 Wis. 2d 634, 637, 264 N.W.2d 222 (1978) (“Conflicts in testimony of 

medical witnesses are to be resolved by the [Commission], and a determination of 

the [Commission] that the testimony of one qualified medical witness rather than 

the testimony of another is to be believed is conclusive.”). Simply put, Harris’s 

suggestion that we substitute our own determinations about the relative credibility 

and persuasiveness of the medical opinions is contrary to our standard of review.

¶19 Here, the Commission adopted Dr. Monacci’s opinion. Dr. Monacci 

concluded that the workplace incident “did not cause a significant change in 

[Harris’s] condition,” and that Harris’s “surgical intervention was not reasonable 

and necessary with respect to the work injury of June 19, 2015, but rather an 

ongoing pain syndrome well documented in the medical records spanning several 

years and requiring intervention.” For the following reasons, we conclude that this

opinion is “neither incredible nor inherently unreasonable,” see Tuohy v. 

Industrial Commission, 5 Wis. 2d 576, 583, 93 N.W.2d 344 (1958), and that it is 

instead supported by credible and substantial evidence.
No. 2019AP2098

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¶20 Dr. Monacci’s opinion finds support in Harris’s medical records, 

which document an ongoing, chronic low back problem that goes as far back as

2000. Specifically, the records demonstrate that Harris was treated in 2000 for 

“mid to low back pain ... caused by lifting objects at work”; Harris was treated in 

2003 following a motor vehicle accident for “low to mid back pain”; Harris was 

treated in 2005 following another motor vehicle accident; Harris continued to be 

treated in 2006 for “severe low back pain with radiation down the left lower 

extremity to the entire foot”; Harris was treated in 2007 following a work-related 

injury for “sharp left-sided lower back pain with radiculitis down into the left leg”; 

Harris was treated in March 2008 for “severe pain in his left upper mid and lower 

back radiating to his left upper arm and left lower leg”; finally, Harris was again 

treated for back pain in February and April 2015 following a third motor vehicle 

accident. In fact, Harris visited a doctor on April 7, 2015, and the doctor’s 

consultation notes state that Harris “is here today because of lower back pain.” 

According to the notes, Harris described “achy” pain in his “lower back” that

“radiates to his left thigh and leg.” Harris rated the pain as “10/10” and stated that

it “[h]appens after a day of work.”

¶21 The medical records also document that Harris was given MRIs in 

2005 and 2007, both of which demonstrate a disc herniation/protrusion with 

annular tear at L4-5 affecting the L5 nerve root. When Dr. Monacci compared the 

MRI images from 2005 and 2007 with the post-work incident MRI imaging from 

2015, he concluded that there was no significant difference between the images. 

The ALJ credited this conclusion, and Harris points to nothing in the 
No. 2019AP2098

11

administrative record that would give us reason to doubt it.8 As the Commission

explained, “[t]he absence of any significant difference between the 2005 and 2007 

MRI results and the post-work-incident MRI results, together with the preincident ... medical record of April 7, 2015 ... are particularly supportive of 

Dr. Monacci’s causation opinion.”

¶22 We now turn to Harris’s arguments to the contrary. Harris accuses 

the Commission of conducting a “cursory” review and “cherry-pick[ing]” medical 

records, but the record does not support this accusation. In its decision adopting 

the ALJ’s findings of fact and conclusions of law, the Commission expressly 

stated that it reviewed Harris’s review petition, the hearing evidence, and the 

arguments set forth by the parties, and that it found the evidence to be 

“particularly supportive of Dr. Monacci’s causation opinion.” We now examine

the evidence that Harris contends the Commission ignored and explain why it does 

not require a contrary result.

¶23 First, and perhaps most prominently, Harris argues that he could not 

have had an “ongoing” condition because he did not receive any medical treatment 

for his back from March 2008 until February 2015. According to Harris,

Dr. Monacci failed to account for this “asymptomatic period,” which “negates” his

conclusion that Harris’s symptoms reflect an ongoing or active chronic condition.

 

8

 In his opening appellate brief, Harris criticizes the Commission for failing to account 

for a letter from Dr. Perlewitz, which asserts that the similarities between the pre-and postincident MRIs are “a moot point,” and that his causation opinion “does not suggest nor did it 

require a change in MRI findings.” In its response brief, the Commission explains that this letter 

was written after the ALJ’s decision and is not part of the hearing record. Harris does not 

respond to this argument in his reply brief, and we consider his argument about Dr. Perlewitz’s 

post-hearing letter no further.
No. 2019AP2098

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¶24 We disagree. Although the absence of medical records suggests that 

Harris did not receive treatment for back pain between March 2008 and 

February 2015, it does not necessarily mean that Harris was asymptomatic during 

these seven years. Harris’s assertion that he was asymptomatic is also called into 

question by the consultation note from April 7, 2015, which states that Harris 

reported that his lower back pain “started about 7 years ago but was exacerbated 

by a recent car accident.” Harris disputes the accuracy of this consultation note, 

but the ALJ found that Harris “provided no plausible reason for his medical 

providers to take inaccurate or incorrect notes for the purposes of treating and 

diagnosing [Harris].” As the sole arbiter of witness credibility, the Commission

reasonably could have credited the medical reports over Harris’s conflicting

testimony.

¶25 Second, Harris argues that Dr. Monacci failed to account for Harris’s 

assertion that “all prior instances of back pain” were a “temporary” aggravation of 

his condition. For example, Harris describes his symptoms following the 

January 2015 accident as “insignificant, temporary, and short lived.” However, 

the Commission did not credit Harris’s account because it was inconsistent with 

his medical records. Harris argues that the inconsistencies between his testimony 

and the medical reports are due to Harris’s poor memory rather than intentional 

deception,9 but Harris does not explain why this distinction matters. Either way, 

the Commission was entitled to discredit testimony that was inconsistent with the 

 

9

 Specifically, he argues that “the absence of a good memory does not constitute 

intentional deception or intentional concealment of information,” and that “[t]he fact that Harris is 

a bad historian or does not have a good memory regarding his medical history before and after 

[the June 2015 work incident] does not establish that he is not credible; he just simply does not 

remember.”
No. 2019AP2098

13

medical records; it is the inconsistency itself, not the reason for the inconsistency, 

which is the basis for the Commission’s determination that Harris’s testimony was 

not credible.

¶26 Third, Harris argues that Dr. Monacci failed to account for the fact

that Harris was not subject to work restrictions and did not have surgery until after 

the June 2015 work incident. The fact that Harris did not have restrictions when 

he started to work at Homes, Inc. does not mean that he did not suffer from 

significant back pain at that time; indeed, as discussed, Harris’s medical records

report that he described his pain as “10/10” on April 7, 2015, the very same day he 

started his employment. Additionally, Harris’s medical records demonstrate that 

he discussed the possibility of surgical intervention as early as 2008, seven years 

prior to the work incident.

¶27 For all these reasons, we reject Harris’s argument that Dr. Monacci’s 

opinion is inherently incredible or unreasonable. Tuohy, 5 Wis. 2d at 583. We 

conclude that Dr. Monacci’s opinion and Harris’s medical records provide

credible and substantial evidence that the June 2015 work incident did not cause 

Harris’s current back condition. Therefore, the Commission properly concluded 

that the evidence raised a legitimate doubt about the existence of facts essential to 

Harris’s claim.

CONCLUSION

¶28 We conclude that Harris has not shown any reason to set aside the 

Commission’s order. Accordingly, we affirm the circuit court.
No. 2019AP2098

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.