California Packing Co. v. Industrial Commission

• Decision Date: 03 May 1955
• Citation: 70 N.W.2d 200,270 Wis. 72
• Parties: CALIFORNIA PACKING CO., et al., Respondents, v. INDUSTRIAL COMMISSION and Cora Colstad, Appellants.
• Court: Wisconsin Supreme Court

Page 200

70 N.W.2d 200

270 Wis. 72

CALIFORNIA PACKING CO., et al., Respondents, v. INDUSTRIAL COMMISSION and Cora Colstad, Appellants.

Supreme Court of Wisconsin.

May 3, 1955.

Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for appellant.

Toebaas, Hart, Kraege & Jackman, Madison, for respondents.

FAIRCHILD, Chief Justice.

The facts of the case are undisputed. Respondents do not challenge that finding of fact of the examiner, confirmed by the industrial commission, that:

'As a result of the injury the applicant has sustained a permanent disability of 64 per cent as compared with loss of the left leg at the hip.'

The only competent evidence in the record as to the amount of partial permanent disability is that contained in the verified report of Dr. James E. Miller, which states that:

'Disability should be figured at one and one half inches shortening, which is 14%, plus loss of motion and nonunion, which it is felt should put the total disability in the vicinity of fifty per cent.'

In arriving at the figure of 64% partial permanent disability, the industrial commission relied on a certain letter by Dr. H. L. Greene to respondent Liberty Mutual Insurance Company, insurer of respondent, the California Packing Company, which letter was submitted by respondents to the industrial commission upon the request of the commission. Dr. Greene fixed permanent partial disability at 64%. His report was, however, unverified and therefore did not constitute competent evidence and was never recognized as such by respondent packing company, which, on the contrary, repeatedly refused to admit the letter as evidence.

As a result of certain communications between the industrial commission and respondents, respondents agreed not to appeal, with the understanding that the order for partial permanent disability would be on the basis of 64%. In this matter the respondents are supported by the statement of the examiner in this order and findings that: 'No claim is made for temporary partial disability. * * * The present issue is the degree of permanent disability.' However, when the commission reserved jurisdiction to make further awards, respondents were justified in seeking a review of that part of the order reserving jurisdiction based on the finding that:

'It is uncertain whether the applicant may sustain renewed temporary disability or further permanent disability or whether she may require further treatment as a result of the injury. Jurisdiction is therefore also reserved to award further benefits in the event of further disability or need for further treatment.'

We agree with respondents' contention that there is no credible evidence to warrant or support the above finding, and that the commission acted in excess of its power in reserving jurisdiction. The verified report of Dr. Miller, the only evidence in the record which can be considered as evidence, states that the choices of treatment are two: (1) further surgical intervention; (2) accepting disability as it is. By rejecting further surgery, applicant has accepted the disability as it is. Even if a fugitive letter containing Dr. Greene's opinion were acceptable as evidence, the conclusion which is to be drawn from it is similar to that drawn from Dr. Miller's report. Dr. Greene's opinion states that:

'I feel that she will be confined to two crutches as long as she lives unless some type of operative procedure is performed. * * * It is my opinion that there will be no improvement in this case unless surgery is performed and then I do not believe that she will be returned to any kind of employment.'

No evidence has been produced from which it can be concluded that applicant's condition will improve without surgery, or that there will be a retrogression. On the contrary proof has been produced showing that it might improve with surgery. This the applicant has rejected. The condition complained of is therefore static.

As the learned trial judge pointed out in his opinion: 'Before the commission could fix the extent of partial permanent disability of the left leg the healing period must be over. The healing period has been defined in the case of Knobbe v. Industrial Comm., 208 Wis. 185, on pages 189 and 190 . The evidence in this case sustains the fact that the healing period was over within the definition of the Knobbe case. Dr. Wirig, the attending physician of the applicant, fixed that date to be April 24, 1950 * * *. Applicant herself corroborated the fact that her condition has been the same for the past two years. Drs. James E. Miller and H. L. Greene, orthopedic physicians who examined her for the purpose of evaluating her disability, concluded that her condition was static, and no improvement could be expected unless further surgery would be performed. * * * Further surgery was refused by the applicant * * *.'

The inference of the industrial commission that there is a likelihood of future complications 'is not sustainable on the basis of common or general knowledge, and is contrary not only to all the medical opinion in the case, but to all of the medical findings based on actual physical examination of the applicant. To admit the commission's claim in this respect would be to sustain an award on the basis of evidence that is not in the record, and to put beyond the reach of a judicial review a large number of cases in which by any ordinary process of reasoning there is no evidence to sustain the commission, but in which the commission asserts that because of some undisclosed knowledge on its part, or its experience and skill in drawing inferences, the fact has been established. It is our conclusion that such a view cannot be sustained.' F. A. McDonald Co. v. Industrial Comm., 250 Wis. 134, 26 N.W.2d 165, 167. See also Miller Rasmussen Ice & Coal Co. v. Industrial Comm., 263 Wis. 538, 57 N.W.2d 736.

It is in the interest of public welfare that determinations made by the commission, even though administrative in character, should be just, definite, certain, and should bring the controversy to an end. Welhouse v. Industrial Comm., 214 Wis. 163, 252 N.W. 717. In the words of the trial court, 'The healing period was over * * * it was the duty of the commission to fix the extent of permanent partial disability. * * * In fact, it was the only controverted issue, and the commission made a finding and order thereon. It became a final order, and the commission would have no further jurisdiction over it unless within twenty days it set aside the findings and order on its own motion because of the discovery of a mistake or upon the grounds of newly discovered evidence. * * * It could not treat such an order as an interlocutory one, not for the same disability, and reserve jurisdiction to make any further award.'

It is our opinion that there is no credible evidence to sustain the finding that it is uncertain whether the applicant may sustain renewed temporary disability or further permanent disability or whether she may require further treatment...