Barlau v. Minneapolis-Moline Power Implement Co.
| Decision Date | 02 April 1943 |
| Docket Number | 33359. |
| Citation | 9 N.W.2d 6,214 Minn. 564 |
| Parties | BARLAU v. MINNEAPOLIS-MOLINE POWER IMPLEMENT CO. |
| Court | Minnesota Supreme Court |
Rehearing Denied April 29, 1943.
Syllabus by the Court.
1. Where the members of the industrial commission are equally divided in opinion on an appeal from a referee's decision awarding compensation to an injured employe, an affirmance of the referee's decision occurs by operation of law.
2. Where, as here, there is evidence to show that an employe was injured while doing his work, a finding that the injury arose in the course of the employment must be sustained.
3. An accidental injury to an employe while doing his work caused by falling because of an epileptic seizure, arises out of the employment. The rule of Stenberg v. Raymond Co-Op Creamery, 209 Minn. 366, 296 N.W. 498, is adhered to.
Faegre & Benson, Paul J. McGough, and Donald L. Robertson, all of Minneapolis, for relator.
J Russell Carroll, of Hopkins, for respondent.
The work of Alfred A. Barlau, employe, was to drill iron castings with a drill press in the employer's machine shop in Hopkins. He took the castings from a wheelbarrow, in which they were hauled and placed on his right, and, after drilling them, put them in a tray on his left.
While engaged in doing his work at about 11:30 a. m. on March 29, 1938, he fell to the floor. A fellow workman found him unconscious, lying on his right side close to the press and about a foot from the tray on his left. His legs were 'kind of folded back' and curled under him. His eyes were wide open and staring.
He was taken on a stretcher to the nurse's office in the shop. There he was examined by the nurse, who put a thermometer under his left armpit and folded his left arm over his chest to hold the thermometer in place. In being helped to sit on a table, he put his left arm around her shoulder. His family physician, Dr. James A. Blake, who was called, made some examination. The employe was then helped to Dr. Blake's office, which was nearby, where he was placed on a cot. Dr. Blake examined him 'rapidly.' The employe, with the assistance of his wife and two brothers, then walked to his home nearby. On the way he complained of pain in his left shoulder. His wife assisted in undressing him. She noticed that his left shoulder and his right eye were 'black and blue.' He was then put to bed, where he remained until he was later removed to a hospital in Minneapolis. About 4:30 or 5 in the afternoon Dr. Blake was called. He found the employe in fit of epilepsy. He ordered the employe removed to the hospital, where an X-ray was taken which showed a comminuted fracture of the humerus extending into the head thereof at the shoulder joint.
The employe claimed that he sustained the injury to his arm and shoulder when he fell at his work. The employer claimed the injury occurred during the epileptiform seizure which the employe had had at his home. The fact of injury was not disputed, but the cause thereof was. The employe did not know just how he was injured. He testified that all he remembered was that, while he was engaged in doing his work, he 'just simply went out like a light,' and that was the last he remembered. He testified further that after recognizing his 'brother and the nurse at the doctor's office in the plant' he did not again regain consciousness until after he had been removed to the hospital. The determination as to when and how he was injured was made with the aid of medical testimony.
For the employe, there was testimony that he was unconscious immediately following the injury and that he was stuporous until after he had been taken to the hospital. This was practically undisputed. His medical testimony was to the effect that he was injured by the fall while he was doing his work and that it was not likely that he sustained the injuries during the epileptiform seizure in his bed in his home. The reasons given for the opinion were that, since the humerus was dislocated backwards, the injury was caused by a severe, direct blow from the front; that such a blow might be caused by a fall forward; that the employe fell forward while at his work; that no fall other than the one which the employe sustained at his work was shown; and that an ordinary epileptic contraction could not produce such a fracture. The employe's medical expert, Dr. Herman, also testified that such an injury might well have escaped discovery in the course of the examinations prior to taking the X-ray at the hospital for the reasons that such an injury might not be observed even if the employe had had his clothes off and that discovery of such an injury depends upon cooperation of the patient by his manifestation of pain when his parts are manipulated, which the employe was incapable of giving because of his stuporous condition.
The employer's medical testimony was to the effect that, although the nurse and Dr. Blake examined the employe before he was taken to the hospital, they failed to discover such an injury; that an epileptiform seizure could produce such an injury; and that, since the employe had the injury when he was received at the hospital and had had an epileptic seizure at his home, he sustained the injury during the seizure at his home. Dr. Blake testified that, while his opinion was as has been stated, he had examined the employe 'rapidly' in the nurse's office and had gone over him 'roughly' in his office, as doctors do in accident cases to determine if there are any serious injuries; that the examinations made by him might have failed to reveal the injury; and that the injury 'could have happened at the plant.'
The employe's claim petition was assigned by the commission to a referee for hearing and decision. The referee found that 'the employe * * * sustained a 70 percent permanent disability of his left arm, including the shoulder joint,' and made an award of compensation accordingly.
The employer appealed to the industrial commission from the referee's 'findings of fact and decision.' One of the members of the commission being incapacitated by illness, the appeal came on to be heard before the other two members on the testimony taken before the referee, all the records, files, and proceedings in the matter, and the arguments of counsel. One commissioner voted for affirmance, the other for reversal. Being equally divided, the commissioner voting for affirmance ordered that 'the findings and decision of the referee stand affirmed.'
Here, the employer contends: (1) The order of one commissioner affirming the referee's decision is not a decision of the commission and is invalid; (2) the injury did not arise in the course of the employment--that is, it occurred at the employe's home, where he was not serving the employer; and (3) the injury did not arise out of the employment, but out of the epilepsy afflicting the employe during a seizure at his home, which was entirely disconnected with his work.
1. The answer to the question whether there was a decision of the commission by the equal division of the participating members depends upon whether a referee has the power to decide as well as to hear, and whether an appeal from a referee's decision to the commission is the same in essence as an appeal from one court to another.
The procedural provisions of the workmen's compensation act define the duties and powers of the industrial commission and its referees. The commission is composed of three commissioners. Minn.St.1941, § 175.02 (§ 4033). [1] § 175.09 (§ 4038). The commission has the power to appoint referees, § 175.13 (§ 4042), who are, in effect, its appointees and employes. The commission has the power to hear claim petitions or to assign them to one commissioner or to a referee for hearing. § 176.44 (§ 4303). After a claim petition has been assigned for hearing the commission may reassign it. § 176.45 (§ 4304). Where a case has been assigned, one commissioner or a referee, as the case may be, has the same power as the commission to render a decision in virtue of § 176.50 (§ 4309), which provides:
'The industrial commission, if a petition is directed to be heard by it, or the commissioner or referee to whom a petition is assigned for hearing, shall hear all competent evidence produced and make in writing and as soon as may be after the conclusion of the hearing such findings of fact, conclusions of law, and award or disallowance of compensation or other order as the pleadings and the evidence produced before it or him and the provisions of this chapter shall in its or his judgment require.'
Under § 176.54 (§ 4313) 'the commission, or a commissioner or a referee, in * * * conducting a hearing' shall not be bound by the technical rules of evidence.
An appeal may be taken to the commission from the decision of one commissioner or a referee under § 176.56 (Mason St.1940 Supp. § 4315), which, so far as here material, provides:
'Any party in interest may, within 30 days after notice of a commissioner's or referee's award or disallowance of compensation, or other order involving the merits of the case, shall have been served on him, take an appeal to the industrial commission on the ground:
'(1) That the award or disallowance of compensation, or other order appealed from, is not in conformity with the terms of this chapter, or that the commissioner or referee committed any other error of law;
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