Gen. Accident Fire & Life Assur. Corp. v. Indus. Comm'n

• Decision Date: 09 February 1937
• Citation: Gen. Accident Fire & Life Assur. Corp. v. Indus. Comm'n, 223 Wis. 635, 271 N.W. 385 (Wis. 1937)
• Parties: GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited, et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

223 Wis. 635

271 N.W. 385

GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited, et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 9, 1937.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

This was an action by General Accident, Fire & Life Assurance Corporation and Milwaukee Athletic Club, plaintiffs, against Industrial Commission of Wisconsin and Thomas Larkin, defendants, commenced on October 5, 1935, to review an award of the Industrial Commission.By the terms of this award the defendantThomas Larkin was found to have been injured in the course of his employment by the Milwaukee Athletic Club, and certain sums were awarded to him for such disability.The action was tried to the court, and judgment entered on June 25, 1936, confirming the award.Plaintiffs appeal.The material facts will be stated in the opinion.Rouiller, Dougherty, Arnold & Kivett and Michael H. Keelan, all of Milwaukee (Glenn D. Roberts, of Madison, of counsel), and W. Wade Boardman, of Madison, for appellants.

James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Andrew W. Brunhart, of Milwaukee, for respondents.

WICKHEM, Justice.

The defendant Larkin was employed as athletic director by the defendant athletic club, his duties requiring him to engage in all branches of athletic work.He was injured on February 10, 1933, when he stumbled in stepping from one mat to another while carrying a weight over his head.He felt a pain in the middle of his back and down his spine at the time of the accident.Subsequently he grew weak and finally quit work on March 24, 1933.His case was diagnosed as osteoarthritis of the spine with encroachments of spurs of bone upon the spinal cord.The question of fact principally litigated was the causal relation between the disability which Larkin concededly has and the accident which he claims to have caused it.It was the contention of plaintiff that the injury was not the proximate cause of the disability or at least that such a relation could only be established by speculation or guess.There was a hearing before examiners of the Industrial Commission, and their findings were to the effect that the work of defendant Larkin as athletic director over a period of more than 24 years contributed towards the development of arthritis in his spine; that shortly after the accident one of his arms started to pain him and was numb; that the applicant grew progressively worse and his left arm and leg became weak; that the accident was an incident which applicant's spinal cord could not stand because of long-continued constriction; that the applicant sustained injury under circumstances entitling him to compensation; and that his permanent disability was equivalent to 25 per cent. of permanent disability.Petitions were duly made to the commission for a review of the findings and award of the examiners, and within ten days the commission, on August 8, 1935, set aside the findings of the examiners upon the ground of probable error and required the defendants to answer the petition for review within ten days from the date of the order.Thereafter, on September 17, 1935, after a review of the entire record, the commission entered an order in which all of the findings of the examiners theretofore made and set aside were adopted except that which fixed the percentage of permanent total disability at 25 per cent.The commission increased this percentage to 50 per cent.

The first contention of plaintiffs is that the Industrial Commission acted in excess of its powers in making the award without complying with the provisions of the statutes governing workmen's compensation.Since the contention is that the commission failed in several respects to comply with statutory provisions, it will be necessary further to subdivide plaintiffs' claims and to deal with them seriatum.

[1] It is first asserted that the commission did not comply with section 102.18(1), Stats., requiring the making and filing of findings of fact.This objection is addressed to the fact that the commission expressly adopted findings of the examiners which had theretofore been set aside and did not make findings of its own.The objection is without merit.While the findings of the examiners were set aside and in legal contemplation did not constitute a determination, the commission, after a complete review of the record, could thereafter adopt as its own the wording of these findings.The matter is one of form rather than of substance.

[2][3] It is next contended that the award of the Industrial Commission was not made within the time allowed by statute.This is based on subsection (4) of section 102.18, which was dealt with in Wacho Manufacturing Co. et al. v. Industrial Comm., et al.(Wis.)270 N.W. 63, filed last month.This subsection empowers the commission to set aside, modify, or change its orders, findings or awards within twenty days from the date thereof upon the grounds of mistake or newly discovered evidence.This case is covered by subsection (3), which provides that within ten days after the filing of a petition to review, the commission may set aside the findings or order of an examiner in whole or in part, or direct the taking of additional testimony.In this case the order of the examiners was set aside and the parties directed to frame an issue looking to the taking of new testimony.The setting aside of the examiners' order restored the status, and the matter was completely open before the commission as though it had never been brought before the examiners at all.The statement in Seaman Body Corporation v. Industrial Commission et al., 214 Wis. 279, 252 N.W. 718, 720, to the effect that “the only power which the commission has to set aside an award” is that conferred by subsection (4) of section 102.18, applies only to cases where the commission acts upon its own motion and has nothing to do with the situation where a petition to review has been filed and the proceedings are upon that petition.

It is next contended that the Industrial Commission based its award upon the report of an independent medical examiner appointed contrary to law.Section 102.17 (1)(c) provides as follows: “Whenever the testimony presented at any hearing indicates a dispute, or is such as to create doubt, as to the extent of disability, the commission may on its own motion or, in the employer or injured employe so requests, it may direct that the injured employe be examined by an impartial, competent physician designated by the commission who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer.The expense of such examination shall be paid by the employer.The report of such examination shall be transmitted in writing to the commission and a copy thereof shall be furnished by the commission to each party who shall have an opportunity to rebut the same on further hearing.”

[4][5] In accordance with this section, the commission appointed Dr. Bleckwenn to examine the applicant, but plaintiffs claim that Dr. Bleckwenn was called in not to determine the extent of disability, but to determine whether there was in fact any disability arising out of his employment.It is contended that the designation of Dr. Bleckwenn was not for a purpose authorized by the statute, and that since the appointment was contrary to law, an award based upon Dr. Bleckwenn's findings must fail.The vice of this argument is that it assumes that the commission is wholly disabled, in the absence of a dispute concerning the extent of disability from calling independent expert testimony.We do not so understand the law.There is no doubt that the qualifications and credibility of experts is for the commission to determine.Wisconsin Granite Company v. Industrial Comm. et al., 214 Wis. 328, 252 N.W. 155;Hills Dry Goods Co. v. Industrial Comm., 217 Wis. 76, 258 N.W. 336.There is no showing that Dr. Bleckwenn was under contract or regularly employed by a compensation insurance carrier, or self-insured employer, or any showing that he was in fact defendant's physician.Nor does the fact that his report is broader than the extent of disability invalidate it or prevent the commission from considering it.Nor do we see in view of section 102.17(1)(b), Stats., which gives the commission the authority to direct an employee claiming compensation to be examined by a regular physician and the results reported to the commission, how plaintiffs' objection can be sound.The essential requirement is that such ex parte testimony shall be reduced to writing and that either party may have the right to rebut the same on final hearing.There is no contention that there was a violation of plaintiffs' rights in this respect.

Belonging literally to the class of objections heretofore discussed but closely related to the claim that the award is not sustained by the evidence, is the contention that the crucial point of dispute in this case, namely, whether the accident proximately caused the disability, is a jurisdictional question with respect to which the findings of the commission are not conclusive.It is contended that section 102.03, Stats., specifies the following conditions of liability under the Workmen's Compensation Act: (1) Where a relation of employee and employer exists; (2) where an employer and employee are subject to the provisions of the act; (3) where the employee sustains an injury; (4) where at the time of the injury he is performing service incidental to his employment; (5) where the injury is not intentionally self-inflicted; (6) where the accident or disease causing injury arises out of his employment.As to all of these conditions, it is asserted that the finding of the commission as to the facts is not conclusive, although it is conceded that the commission must decide these questions at the time of the hearing upon a claim for...