City of Milwaukee v. Miller

• Decision Date: 28 October 1913
• Citation: 154 Wis. 652,144 N.W. 188
• Parties: CITY OF MILWAUKEE v. MILLER ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 652

144 N.W. 188

CITY OF MILWAUKEE

v.MILLER ET AL.

Supreme Court of Wisconsin.

Oct. 28, 1913.

Syllabus by the Judge.

An employee, in the course of his service, received an injury to a great toe. Without notice to the employer of his needing medical and surgical treatment and desiring to have such employer furnish the same, the employee procured such treatment, lasting ninety days. Notice was not given the employer at any time, except that the employee claimed compensation for his loss. Thereafter the former tendered the latter services of a competent physician and surgeon, but the latter chose to continue to be treated by the person of his choice who was assisted by the employee's niece. She voluntarily and without promise or expectation of compensation, acted as nurse. In due course the Industrial Commission awarded reparation for the loss, including $222.00, for medical and surgical treatment and $32.00 for services of the nurse.

Principles of sections 2394--1 to 2394--71, Stats. 1911 (Workmen's Compensation Act), apply as follows:

By the logic of the Workmen's Compensation Act personal injuries to employees are a natural element in the cost of production and are necessarily paid by the consumers of the things produced.

The Workmen's Compensation Act is to minimize personal injury, distress and loss and so the burden upon the public as well as on the person injured, recognizing that such loss as legitimately enters into the cost of production as wages.

In construing a statute which is referable to the police power and was originated to promote the common welfare, supposed to be seriously jeopardized by the infirmities of an existing system--the conditions giving rise to the law, the faults to be remedied, the aspirations evidently intended to be embodied in the enactment, and the effects and consequences as regards responding to the prevailing conception of the necessities of public welfare, should be considered and the enactment given such broad and liberal meaning as can be fairly read therefrom so far as required to effectively eradicate the mischiefs it was intended to obviate.

Proper administration of the Workmen's Compensation Act requires appreciation of the manifest legislative purpose to abolish the common law system regarding injuries to employees as unsuitable to modern conditions and conceptions of moral obligations, and erect in place thereof one based on the highest present conception of man's humanity to man and obligations to members of the employee class,--one recognizing every personal loss to an employee, not self-inflicted, as necessarily entering into the cost of production and required to be liquidated in the steps ending with consumption.

In dealing with a personal injury claim under the Workmen's Compensation Act, the logic and makeweights formerly supposed to justify penalizing employers as wrong-doers, to the ultimate expense of consumers, should not be allowed to play any part; but the directly responsible party should be regarded as standing for the aggregate of consumers and joining with the injured person in submitting to the sound judgment of impartial administrators the question of how much, under all the circumstances, by legislative standards, should the public be burdened as a reparation to such person or his dependents for his or their loss.

The amount allowed for reasonable expenses of medical and surgical treatment should be the fair value of the service as such,--neither more nor less because of the employer being liable therefor.

The burden of proof to establish to a reasonable certainty the reasonableness of charges for medical and surgical treatment under the Workmen's Compensation Act, is on the employee; and, in case of the proof being insufficient,the claim should be reduced sufficiently to cure the infirmity.

The reasonableness of an employee's claimed expenses reasonably incurred for medical and surgical treatment being disputed by credible evidence and not supported other than by opinion evidence of the person most interested, the trial tribunal should apply ordinary common sense and experience to the matter--not being bound or necessarily efficiently influenced by the verification by such interested one--and fix the allowable amount at such sum as appears to it to be reasonable; and where the claim is obviously exorbitant, should not allow it, in the whole, regardless of how strongly supported by evidence from the mouth of the interested party.

The right of the employer under the Workmen's Compensation Act to furnish reasonably necessary medical and surgical treatment, and creating liability to the employee for reasonable expense incurred by him, or in his behalf, in that regard, in case of the former unreasonably neglecting or refusing to make the proper provision, by necessary implication reserves to the employer, under ordinary circumstances, reasonable opportunity to exercise the privilege, and renders competency of the employee to obtain such treatment, or for the same to be obtained in his behalf, at the expense of the employer, contingent upon such opportunity having been accorded.

The privilege accorded the employer, as stated, requires, as an incident, reasonable time to exercise it after notice of the need therefor.

The stated rules do not militate against competency of an injured employee to obtain medical and surgical treatment at the expense of his employer in the interim between the happening of the injury and time for notice to the employer of the employee's needs.

Competency of an injured employee to procure medical and surgical treatment, or for such to be procured in his behalf, at the expense of the employer, under the Workmen's Compensation Act, exists for the reasonable time after the injury, required for such employee to afford the employer opportunity to exercise his privilege; it is then suspended if the employer exercises such privilege, but revives and relates back to the time of suspension, if necessary, if the employer unreasonably neglects or refuses to exercise such privilege.

The legislative idea in the Workmen's Compensation Act is that an employer is so specially interested in his injured employee being restored as soon as practicable, as to be most likely to provide proper medical and surgical treatment, and the letter and spirit of the law require that such beneficial and manifestly economic phase of the enactment should be given its intended dignity.

The law does not cast upon employers the duty of active vigilance to discover cases of personal injury to their employees, but casts upon the latter such vigilance as they can reasonably exercise to bring such injuries to the attention of employers with their need and desire for medical and surgical treatment to be provided.

Expense for services of a nurse, as such, are not allowable against the employer for the period of ninety days after the injury, or at all during such period, except as a part of reasonably necessary medical and surgical treatment, proved to be such by the physician and surgeon in attendance.

Expense for services of a nurse, as such, after the first ninety days are not chargeable to the employer, nor at all thereafter except by allowance of the maximum percentage of disability indemnity.

The common rule in the law of negligence that the wrong-doer cannot mitigate his liability by taking advantage of relief furnished by one's wife, family, friends or otherwise, has no application to cases under the Workmen's Compensation Act. That eliminates all penalizing features and limits compensation to the injured person, aside from indemnity disability, to expenses or liabilities actually incurred.

The legislative requirement that the employer shall bear the burden of reasonably necessary medical and surgical treatment of his injured employee, was not intended as a charity to one, or as a penalty as to the other, but as the recognition of the economic truth that such expense is a legitimate element in the cost of production and should be placed upon the product as directly as practicable, using the employer as a necessary first step in that regard.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Modified and affirmed.

The Industrial Commission, in due course, awarded Henry Miller, under the provisions of the Workmen's Compensation Act, on account of a personal injury to him which occurred while he was in the performance of his duties as an employee of the city of Milwaukee, $222 for physician's services, $32 for expense incurred for services of a nurse, $5 paid out for bandages and supplies, and $172.50 for disability indemnity. An action was brought in the circuit court for Dane county to test the decision as to the first two items, resulting in the award of the Commission being sustained.

One of Miller's great toes was severely injured by a road roller. The member was so lacerated and the bone known as the first digit so badly crushed that amputation became necessary. The wound becoming somewhat infected, recovery was slow because thereof and the man's age and condition of health. He resided in the house with two relatives, a niece and her mother. The former acted voluntarily as nurse, and withoutpromise or expectation of compensation. Miller did not, at any time, notify the municipality of his needing services of a physician or nurse, or give the corporation any opportunity to furnish such services. He did not notify it of his injury until October 21, 1912, three weeks after it happened. The notice then given was in the ordinary form for claiming compensation for his loss. He called Dr. Bradstad to treat him on the day of the injury. The amputation took place 11 days thereafter. November 17th, after the city received the notice aforesaid, it voluntarily tendered Miller the services of Dr. Carroll, a competent physician. Notwithstanding such tender Miller continued to employ Dr. Bradstad. From the time of such tender...