Discher v. Industrial Commission

• Decision Date: 07 June 1960
• Parties: John DISCHER, Respondent, v. INDUSTRIAL COMM. and International-Harvester Co., a foreign corporation, Appellants.
• Court: Wisconsin Supreme Court

Page 519

103 N.W.2d 519

10 Wis.2d 637

John DISCHER, Respondent, v. INDUSTRIAL COMM. and International-Harvester Co., a foreign corporation, Appellants.

Supreme Court of Wisconsin.

June 7, 1960.

Otjen & Otjen, Milwaukee, John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for appellants.

Goldberg, Previant & Cooper, Milwaukee, for respondent.

FAIRCHILD, Justice.

Ch. 328, Laws of 1953, became effective July 1, 1953. It substantially restricted the right of an employee to recover workmen's compensation for occupational loss of hearing. It amended sec. 102.52(17) and (18), Stats., so that deafness is a scheduled permanent partial disability (irrespective of wage loss) only if it results 'from accident or sudden trauma.' Sec. 102.565 was amended so that when an employee is discharged or transferred from employment because of a loss of hearing due to prolonged exposure to noise in his employment, or when he ceases employment, and it is inadvisable for him to continue in it on account of such impairment, and he suffers wage loss by reason of such discharge, transfer, or cessation, compensation may be allowed. Since Mr. Discher did not suffer wage loss under the conditions specified, he cannot be allowed compensation under the law as amended.

Mr. Discher contends, however, that since he could have been allowed compensation if he filed his application on June 30, 1953, before Ch. 328 became effective, and if he can show a percentage of hearing loss as of that date, he is still entitled to an allowance.

His case presents the question whether Ch. 328, Laws of 1953, governs an application, made after July 1, 1953, by one who began to sustain occupational loss of hearing before that date but continued without wage loss in the employment which caused the impairment. This question was expressly left undecided in Green Bay Drop Forge Co. v. Industrial Comm., 1953, 265 Wis. 38, 51c, 60 N.W.2d 409, 61 N.W.2d 847.

We can find no indication that the legislature intended that the occupational loss of hearing provisions of Ch. 328, Laws of 1953, should not govern cases like the one before us. Those provisions contain nothing which specifies any type of case to which they are not to be applied, nor as to which their effect is to be delayed. Furthermore, the enactment of the occupational loss of hearing provisions of Ch. 328, Laws of 1953, represents a legislative decision that allowance of compensation for occupational hearing loss before it results in wage loss is not in the public interest. The industrial commission had issued its order, later upheld in the Green Bay Drop Forge case, on July 28, 1952, awarding such compensation without wage loss, and it is reasonable to suppose that the construction of the law adopted by the commission in making that award prompted the legislature to enact Ch. 328, under which a similar award could not be made. Under these circumstances, there is no reason to supply by implication any unexpressed intention detracting from the full effect of these provisions.

The workmen's compensation act does, however, provide a general rule for the consequences of a change in the law. Sec. 102.03(4), Stats.1953, provides: 'The right to compensation and the amount thereof shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury.'

Thus the 'date of the injury' must be determined. Occupational hearing loss results from a succession of events, many of which in Mr. Discher's case occurred prior to July 1, 1953. Such loss has been treated as an occupational disease, and each day of exposure to the conditions which cause industrial disease is not considered a date of injury.

There are two approaches to determining the time or date of injury in cases of occupational disease: (1) Where there is wage loss before termination of employment, the date of commencement of wage loss establishes the date of injury. Wagner v. Industrial Comm., 1956, 273 Wis. 553, 561, 79 N.W.2d 264, 80 N.W.2d 456; (2) For reasons explained in the Green Bay Drop Forge Company case, the legislature defined 'time of injury' and 'date of injury' in sec. 102.01(2), Stats., as 'the date of the accident which caused the injury, or in the case of disease, the last day of work for the last employer whose employment caused disability.'

Discher seems to rely principally on approach No. 1. He sustained no wage loss, but argues that if date of wage loss is equivalent to date of injury where an occupational disease causes disability of a type not included in the schedule, any date upon which a modicum of a scheduled disability arose from occupational exposure should be a date of injury, any one of which can be selected by the employee for the purposes of his application for compensation. If this be a sound proposition, much of the intellectual travail of the commission and this court in following approach No. 2 in Green Bay Drop Forge Company could have been avoided for this proposition would have achieved the same result quite simply. We can find no authority, nor sound reasoning to support the conclusion that the employee is entitled to select one out of such innumerable past dates of injury, and unless he is entitled arbitrarily to select one of them the proposition that they are all dates of injury would result in confusion, the resolution of which would be unwieldy, if not impossible. Limitations would have run upon portions of his claim, and other changes in the law, such as those which altered the maximum average weekly earnings, would probably cause some portions of his claim to have legal results different from others. It was, of course, this very multiplicity of dates upon which the hearing loss was progressively accumulated which caused the industrial commission to consider that occupational hearing loss is an occupational disease rather than a succession of accidental injuries. See Commission Memorandum, pp. 183 and 184, Appellant's Appendix, Green Bay Drop Forge Co. v. Industrial Comm., supra.

Approach No. 2 was followed by the commission in the Green Bay Drop Forge Company case. When that matter was before the industrial commission, Ch. 328, Laws of 1953, had not yet been enacted, but it was necessary to determine the 'time of injury' for other reasons. The commission rejected the theory of successive dates of...