COURT OF APPEALS

DECISION

DATED AND FILED

July 28, 2020

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. 2019AP481 Cir. Ct. No. 2017CV57

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

MARIE I. MCROBERTS,

 PETITIONER-APPELLANT,

 V.

LABOR AND INDUSTRY REVIEW COMMISSION, MCMILLAN ELECTRIC CO.

AND TWIN CITY FIRE INSURANCE COMPANY,

 RESPONDENTS-RESPONDENTS.

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

JOSEPH D. BOLES, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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. 2019AP481

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¶1 PER CURIAM. Marie McRoberts appeals from a circuit court 

order affirming an order of the Wisconsin Labor and Industry Review 

Commission (LIRC). McRoberts argues LIRC erred by finding that McRoberts 

was not permanently disabled as a result of an April 17, 2013 fall in her 

employer’s parking lot and by dismissing her worker’s compensation application. 

We affirm.

BACKGROUND

¶2 Following her slip and fall, McRoberts went to the emergency room 

and complained of pain that radiated up the right lateral side of her back. She was 

diagnosed with a soft tissue contusion injury. An x-ray showed mild degenerative 

disc disease but no evidence of fracture or dislocation. Almost two years later, 

McRoberts saw Dr. Michael Fitzgerald. In a report prepared in support of 

McRoberts’ claim for worker’s compensation due to her permanent total disability 

resulting from her fall, Fitzgerald opined that although the April 17, 2013 fall did 

not directly cause any disability, it did cause three percent permanent partial 

disability for chronic pain that was aggravated, accelerated and precipitated by the 

work injury. 

¶3 Doctor Stephen Barron conducted a record review at the request of 

McRoberts’ employer’s insurance carrier. In his report, Barron concluded the 

work accident caused a temporary aggravation of McRoberts’ pre-existing back 

condition. Specifically, he opined that the work injury caused a soft tissue 

thoracolumbar sprain that fully resolved by July 17, 2013. In a subsequent report, 

after reviewing records that revealed McRoberts suffered severe symptoms in the 

same area of her low back immediately prior to her fall, Barron changed his 
No. 2019AP481

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opinion and concluded McRoberts’ fall did not cause a new injury and that 

McRoberts’ symptoms were simply a manifestation of her pre-existing condition. 

¶4 A hearing was held on McRoberts’ application for benefits. At the 

outset of the hearing, the administrative law judge (ALJ) noted that McRoberts is 

claiming “this accident caused three percent permanent partial disability to the 

whole body on a functional basis. She [is claiming] compensation for permanent 

and total disability based on a loss of earning capacity. She [is requesting] an 

interlocutory order.” Following the hearing, the ALJ found “[McRoberts] has a 

long history of back problems. The records document back complaints since 

1997.” 

¶5 The ALJ noted that McRoberts suffered frequent flare-ups of back 

pain. In particular, she suffered a significant aggravation after leaning over to 

clean a bathtub in September 2006. She told a physician in May 2008 that her low 

back pain had never gone away since the bathtub incident. She had another 

significant flare-up after a motor vehicle accident in late December 2009. On 

March 23, 2013, McRoberts slipped on ice and reported subsequent low back pain. 

On a scale of one to ten, she complained of level nine back pain that was 

migrating into her right calf. On April 12, 2013—five days prior to the fall at her 

employment—McRoberts saw her primary care physician, complaining of severe 

low back pain that started about three weeks prior when she awoke with pain. She 

said that on two occasions she spontaneously lost all sensation in her legs and fell 

to the ground. 

¶6 The ALJ did not find McRoberts credible. The ALJ also found that 

Dr. Fitzgerald “did not have an accurate history of [McRoberts’ condition] ... and 

this weakens his opinion.” The ALJ concluded:
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I am satisfied that applicant sustained a back injury arising 

out of her employment on April 17, 2013. Based on the 

more credible evidence and the initial opinion from 

Dr. Barron, this injury was in the nature of [a] 

thoracolumbar sprain. I further adopt Dr. Barron’s 

opinions as stated in his first report.[1] Specifically, this 

was a soft tissue injury that fully resolved by July 17, 2013. 

This injury did not cause any permanent disability on a 

functional or vocational basis. The applicant’s ongoing 

symptoms are a continuation of her longstanding 

pre-existing back problems.

¶7 McRoberts petitioned for LIRC review. McRoberts argued that the 

ALJ erred by not concluding she was permanently and totally disabled on an 

odd-lot basis2as a result of the fall in her employer’s parking lot. McRoberts 

contended Dr. Barron’s opinion was predicated on a non-existent “phantom” MRI

report, and therefore his medical opinion could not be considered credible and 

substantial evidence as a matter of law. 

¶8 Regarding the alleged “phantom” MRI, LIRC noted Dr. Barron’s 

report discussed a pre-injury MRI, which indicated that McRoberts had significant 

low back problems. Barron further stated “she had an MRI scan of her lumbar 

spine 1 month prior to the accident [at issue] with an indication of low back pain 

extending down the right leg. ... Her subsequent MRI scan and x-rays did not 

 

1

 The ALJ did not rely on Dr. Barron’s subsequent report. 

2

 The “odd-lot” doctrine embodies the idea that “total disability under worker’s 

compensation law should not be taken literally to mean complete and utter helplessness, because 

some injured workers find themselves, because of their age, education, training, and overall 

capacity, incapable of becoming ordinary work[ers] of average capacity in any well known 

branch of the labor market.” See Ellis v. DOA, 2011 WI App 67, ¶27, 333 Wis. 2d 228, 800 

N.W.2d 6. Under the odd-lot doctrine, when an employee is so injured that he or she can perform 

no services other than those which are so limited in quality, dependability, or quantity that a 

reasonably stable market for them does not exist, the employee is in the position of an “odd-lot” 

in the labor market. See id.
No. 2019AP481

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show any objective change in her condition.” However, no MRI scan was taken of 

McRoberts’ low back after her fall and prior to the preparation of Barron’s report. 

LIRC found the “most reasonable interpretation of the last sentence of this portion 

of Dr. Barron’s report is that he intended to say ‘subsequent x-rays’ and not 

‘subsequent MRI scan and x-rays.’ ... Dr. Barron does not list a post-accident

MRI in his medical record review.” LIRC therefore found that “any reference by 

Dr. Barron to a 2014 post-injury MRI is a typo and that he was not relying upon a 

phantom report when he reached his conclusions about [McRoberts’] condition.” 

¶9 LIRC further found “it is not clear that Dr. Fitzgerald was aware of 

[McRoberts’] significant history of bilateral and right-sided back pain.” LIRC 

noted McRoberts “had severe pain and symptoms on or around March 25, 2013, 

shortly before the work incident. In addition, Fitzgerald did not begin treating 

[McRoberts] until early in 2015.” LIRC also noted that McRoberts “was seen for 

severe back pain on April 12, 2013, shortly prior to the work incident of April 17, 

2013.” 

¶10 LIRC also noted that the ALJ did not find McRoberts credible 

because, among other things, her testimony was “vague and inconsistent.” After 

reviewing the record, LIRC agreed with the credibility impression of the ALJ. 

LIRC also agreed with the ALJ’s disability determination, and it affirmed and 

adopted as its own the ALJ’s findings and conclusions. 

¶11 The circuit court confirmed LIRC’s order. The court concluded this 

case “presents a question of credibility of expert witnesses,” and it noted that the 

denial of McRoberts’ application “was based on a finding that Dr. Barron’s 

opinion, which did not support Ms. McRoberts’ claim, was more credible than 

Dr. Fitzgerald’s opinion that supported Ms. McRoberts’ application.” The court 
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found LIRC acted within its power and that its findings of fact supported its 

decision. The court also found that LIRC’s reliance on Barron’s opinions rather 

than Fitzgerald’s opinions was supported by credible and substantial evidence, and 

that reasonable minds could accept Barron’s opinions as adequate to support the 

denial of the application. McRoberts now appeals.

DISCUSSION

¶12 We review LIRC’s decision, not the circuit court’s. Pick ’n Save 

Roundy’s v. LIRC, 2010 WI App 130, ¶8, 329 Wis. 2d 674, 791 N.W.2d 216. 

LIRC’s findings of fact are conclusive if supported by credible and substantial 

evidence, and factual findings include the drawing of one of several reasonable 

inferences from undisputed facts. See WIS. STAT. § 102.23(6) (2017-18); Bosco v. 

LIRC, 2003 WI App 219, ¶24, 267 Wis. 2d 293, 671 N.W.2d 331, aff’d, 2004 WI 

77, ¶24, 272 Wis. 2d 586, 681 N.W.2d 157. “Credible evidence” is that evidence 

which excludes speculation or conjecture. Milwaukee Bd. of Sch. Dirs. v. WERC, 

2008 WI App 125, ¶7, 313 Wis. 2d 525, 758 N.W.2d 814. Evidence is 

“substantial” if a reasonable person relying on the evidence might make the same 

decision. Id. LIRC is the sole judge of the weight and credibility of medical 

witnesses. Bumpas v. DILHR, 85 Wis. 2d 805, 817, 271 N.W.2d 142 (Ct. App. 

1978). If there are contradictory medical reports, it is for LIRC to decide if one 

expert’s testimony is more persuasive than another’s. Id. 

¶13 McRoberts requests that we set aside LIRC’s order because it

depends on findings that are not supported by credible and substantial evidence. 

In this regard, McRoberts does not question whether Dr. Barron’s opinions are 

more credible than Dr. Fitzgerald’s opinions. According to McRoberts, the issue 

here is whether Barron’s opinions, “when considering the record as a whole, [are] 
No. 2019AP481

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so completely discredited they are incredible as a matter of law[.]” Essentially, 

McRoberts argues that Barron’s reference to the non-existent MRI “was not a 

typographical error, but the foundational predicate Barron gave for his opinions.” 

Because the foundational basis Barron provided for his opinions did not exist, 

McRoberts contends the opinions are completely discredited and must be 

disregarded. 

¶14 First, we conclude LIRC’s finding that Dr. Barron’s report contained 

a “typo” is a proper inference drawn from the evidence as a whole. See Crystal 

Lake Cheese Factory v. LIRC, 2003 WI 106, ¶25, 264 Wis. 2d 200, 664 N.W.2d 

651. LIRC reasonably inferred that Barron intended to say “subsequent x-rays” 

and not “subsequent MRI scan and x-rays.” Barron noted at page 3 of his report 

that McRoberts’ post-accident x-rays showed “mild degenerative disc disease.” 

Throughout that report, Barron noted that McRoberts had MRI scans taken before

her workplace fall. He did not reference anywhere else in his report any 

post-injury MRI. As LIRC correctly observed, Barron did not list a post-accident 

MRI in his medical record review. It is also undisputed that x-rays were taken 

subsequent to McRoberts’ parking lot fall. Moreover, to the extent McRoberts 

implies that LIRC’s finding of a typographical error is not evidence that a 

reasonable mind might accept, we note that the ALJ and the circuit court made the 

same decision as LIRC. 

¶15 McRoberts also misconstrues LIRC’s decision by suggesting that 

LIRC improperly relied upon the “opinion” of counsel that Dr. Barron’s report 

contained a “typo,” which is not evidence. However, LIRC did not consider 

counsel’s statement in this regard made at the start of the hearing to be 

testamentary evidence. Rather, counsel made an argument, and LIRC stated that it 
No. 2019AP481

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“agrees with the respondent” that Barron’s reference to a “subsequent MRI scan” 

was a typographical error. 

¶16 In her reply brief, McRoberts makes much of the fact that Dr. Barron 

did not correct or clarify the “typo” in his subsequent report. There would be no 

need for Barron to do so, however, because by then his opinion had changed, and 

he no longer concluded McRoberts sustained any injury in her fall. 

¶17 We also reject McRoberts’ contention that a foundational basis for 

Dr. Barron’s opinions did not exist. LIRC’s finding that McRoberts’ slip and fall 

in her employer’s parking lot did not cause a permanent and compensable 

workplace injury relied in part on Barron’s expert opinion from his first report. In 

that report, Barron opined that McRoberts suffered a thoracolumbar soft tissue 

sprain; that the fall temporarily aggravated her longstanding pre-existing back 

condition; and that the soft tissue sprain resolved within three months. LIRC also 

relied on Barron’s explanation that before her workplace injury, McRoberts had “a 

strong history of prior complaints of thoracolumbar pain” and had been “treated 

for years for this condition.” Barron also emphasized that less than one month 

before her fall in the employer’s parking lot, McRoberts had an MRI scan with an 

indication of low back pain extending down her right leg. Barron’s first report 

constituted credible and substantial evidence supporting LIRC’s decision. 

¶18 Given the above analysis, together with the remainder of the 

evidence—including but not limited to LIRC’s findings that McRoberts was not 

credible and that Dr. Fitzgerald’s opinion was based, in part, upon an incorrect 

history—LIRC reasonably concluded that McRoberts sustained a soft tissue injury 

that fully resolved by July 17, 2013, as opined by Dr. Barron in his first report. 

LIRC correctly denied McRoberts’ claim for permanent partial disability and it
No. 2019AP481

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properly found that her ongoing symptoms were a continuation of her 

longstanding pre-existing back problems. 

By the Court.—Order affirmed.

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

809.23(1)(b)5. (2017-18).