Green Bay Drop Forge Co. v. Industrial Commission

• Decision Date: 06 October 1953
• Citation: 265 Wis. 38,60 N.W.2d 409
• Parties: GREEN BAY DROP FORGE CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

Page 409

60 N.W.2d 409

265 Wis. 38

GREEN BAY DROP FORGE CO. et al. v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Oct. 6, 1953.

Rehearing Denied Dec. 30, 1953.

See 61 N.W.2d 847.

Action instituted pursuant to section 102.23, Stats., by the plaintiff Green Bay Drop Forge Company (hereinafter referred to as the 'employer') and its insurance carrier to review an interlocutory order of the industrial commission dated July 28, 1952, awarding workmen's compensation to the defendant Albert Wojcik (hereinafter referred to as the 'employee').

The employee, who was born April 4, 1891, commenced to work for the employer on March 14, 1945, and as far as the record discloses is still so employed. On November 2, 1951, the employee filed with the industrial commission his application for workmen's compensation alleging that he had sustained a partial permanent loss of hearing caused by excessive noise while in the employ of the employer. During all the period the employee had been so employed he had worked in the drop forge department of the employer. There were many drop forge hammers in operation in such department, and at the hearing held upon the application counsel for the employer and its insurance carrier stipulated 'that there was sound in the drop forge plant above which was adequate to produce damage to the ear if the man [the employee] continued in that sound long enough.'

The two expert medical witnesses were agreed that the employee had sustained loss of hearing in both ears, both physicians attributed such loss of hearing to the employment in the employer's plant, and both considered the loss of hearing to be permanent.

After the conclusion of the hearing before an examiner of the commission, briefs were filed by opposing counsel, and thereafter the commission filed a nine page memorandum opinion together with formal findings of fact, and an interlocutory order awarding the employee compensation. In such findings of fact the commission found that the employee had sustained a permanent loss of hearing in both ears as a result of exposure to noise in his employment, and that such impairment of hearing was a 'disease'. The compensation awarded was based upon a percentage of the 333 1/3 weeks of compensation which section 102.52(17), Stats.1951, provides for total loss of hearing of both ears, reduced by the employee's age factor as required by section 102.53(2), Stats.1951.

Upon review, the circuit court for Dane county by judgment set aside the findings and order of the commission on the ground that the commission acted without and in excess of its powers and that the findings did not support the award. From such judgment the employee and the commission have appealed.

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

Quarles, Spence & Quarles, Milwaukee, Kenneth Grubb, Milwaukee, of counsel, for respondents.

CURRIE, Justice.

Counsel for the respondent employer and its insurance carrier advance the following two contentions for affirmance of the trial court's determination that the employee cannot as a matter of law recover workmen's compensation for the partial permanent loss of hearing he has sustained as a result of the noise to which his ears were subjected in the course of his employment by the employer:

(1) The employee sustained no wage loss and without such wage loss there can be no disability arising from occupational disease which is compensable under the Workmen's Compensation Act; and

(2) An employee cannot recover workmen's compensation based upon disability due to occupational disease without first having terminated his employment with the employer under the definition of 'date of injury' contained in section 102.01(2), Stats.1951.

This is the first case to reach this court in which workmen's compensation has been awarded for an impairment of faculty or disability listed in the schedule contained in section 102.52, Stats.1951, or for a percentage of the schedule disability based upon sub. (3) of section 102.55, Stats.1951, which provides in part as follows:

'For all other injuries to the members of the body or its faculties which are specified in this schedule resulting in permanent disability, though the member be not actually severed or the faculty totally lost, compensation shall bear such relation to that named in this schedule as disabilities bear to the disabilities named in this schedule.'

This court has repeatedly held that in the case of occupational disease, such for example as silicosis, there can be no disability within the meaning of the Workmen's Compensation Act without a wage loss, and that it is the wage loss and not the exposure of the employment which constitutes the disability. Typical of such cases are those of Milwaukee Malleable & Grey Iron Works v. Ind. Comm., 1936, 220 Wis. 244, 263 N.W. 662, 265 N.W. 394; and Schaefer & Co. v. Ind. Comm., 1936, 220 Wis. 289, 265 N.W. 390. For example, in its opinion in the latter case this court stated, 220 Wis. at page 291, 265 N.W. at page 391:

'This court has consistently held under the Workmen's Compensation Act that in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results while the employer-employee relationship exists between the parties.'

Counsel for respondents rely upon the holding of cases such as these, and quote extensively in their brief from the court's opinions in such cases, in support of their contention that the employee in the instant case is precluded from recovering compensation because he has sustained no wage loss. However, in those cases the court had before it the problem of establishing a disability as a result of occupational disease without giving any consideration to the question of whether the loss due to occupational disease of a member of the body, or the impairment of a faculty, specifically covered by the schedule contained in section 102.52, Stats.1951, would in itself establish the disability, irrespective of any wage loss.

The first schedule of disabilities, for which specified weeks of compensation were provided, was inserted into the Workmen's Compensation Act by amendment in 1913. Then, in 1923, a further amendment was enacted, which in effect applied a relative injury clause to nonschedule injuries. In the case of Northern States Power Company v. Industrial Comm., 1947, 252 Wis. 70, 73, 74, 30 N.W.2d 217, 219, this court considered the problem of whether wage loss was necessary in order to permit the payment of compensation in a nonschedule injury case. The decision in such case was written by Mr. Justice Wickhem, and the opinion, after reviewing the legislation in cases prior to the 1923 amendment, stated:

'Down to this point we think it is pretty clear that in all cases of permanent partial disability other than schedule and relative injuries the statute was held to require a showing that applicant suffered impairment of earning capacity in the same or other suitable employments.' (Emphasis supplied.)

The term 'relative injuries' in the foregoing quotation refers to those cases where there has been a partial loss of a member, or impairment of a faculty, making it necessary to apply the provision found in section 102.55(3), Stats., previously quoted herein. Under such statute, the compensation awarded must bear such relation to that named in the schedule as the disability bears to the disability named in the schedule. The foregoing quotation from the opinion of Mr. Justice Wickhem in the Northern States Power Company Case makes it clear that no wage loss was necessary in order to establish a disability for payment of compensation in the case of schedule and relative injuries.

While it is true that the disability in the Northern States Power Company Case was occasioned by an industrial accident and not an occupational disease, we believe the language used by the court is equally applicable to a schedule or relative disability arising from occupational disease. There is no question but that the schedule of disabilities contained in section 102.52, Stats.1951, is applicable to losses and impairments resulting from occupational disease as well as from industrial accident. If an employee loses a finger or a hand as the result of an industrial accident he is entitled to receive the number of weeks of compensation specified in the schedule, even though he may have sustained no wage loss. If the employee should lose such finger or hand due to long exposure over a period of years to radium or x-rays, and he should be continued in his employment without wage loss, there is every logical reason why he should receive the compensation specified under the schedule, the same as if he had lost such a finger or his hand as the result of an industrial accident. As mentioned in the statement of facts preceding this opinion, loss of hearing is one of the schedule disabilities, and no distinction should be made between the case where an employee sustains a loss of hearing by trauma from the case where such impairment of hearing is occasioned by occupational disease.

The conclusion, therefore, seems irresistible, that if the loss of a member, or impairment of a faculty, as a result of occupational disease is one which is provided for in the schedule, or is a partial loss, or impairment, as to which the percentage formula provided for in section 102.55(3), Stats.1951, is applicable, this in itself establishes a compensable disability, irrespective of any wage loss. Therefore in the instant case the commission rightly held that the employee's loss of hearing due to occupational disease constituted a compensable disability, even though the employee had sustained no wage loss.

We now turn to the second contention of counsel for respondents, that the...