Janiszewski v. Industrial Commission

• Citation: 9 Wis.2d 171,100 N.W.2d 347
• Parties: Walter JANISZEWSKI, Appellant, v. INDUSTRIAL COMMISSION and Ladish Company et al., Respondents.
• Decision Date: 05 January 1960
• Court: Wisconsin Supreme Court

Page 347

100 N.W.2d 347

9 Wis.2d 171

Walter JANISZEWSKI, Appellant, v. INDUSTRIAL COMMISSION and Ladish Company et al., Respondents.

Supreme Court of Wisconsin.

Jan. 5, 1960.

Stephen J. Hajduch, Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Edward H. Borgelt and Clayton R. Hahn, Milwaukee, of counsel, for respondents Ladish Co. et al.

DIETERICH, Justice.

This action was commenced by the plaintiff to review an order of the Industrial Commission on the theory that it acted without and in excess of its powers in applying an administrative rule in the computation of hearing loss, that such rule discriminates against hearing disability in its own right, that it treats such disability in a special and different manner than as authorized by law, without warrant of authority, and without due process and equal protection of the laws.

The defendants-respondents, Ladish Company and Liberty Mutual Insurance Company, answered, denying among other things that the commission acted in excess of its powers, denied that the findings are not supported by the evidence, denied that the application of an administrative rule providing for a diminution of a hearing disability award by one-half of one per cent commencing at age 50 was a violation of the law, denied that its findings are without warrant of authority or that its findings treat the disability in a special or different manner than authorized by law and denied that such findings and order deprived the plaintiff of due process and equal protection of the law.

The plaintiff was 64 years of age at the time of his retirement and it was admitted that the noise level pressure in the drop forge department, where he had served the employer for many years, was of such a nature so as to result in an industrial hearing loss in each ear.

Dr. Louis Brachman testified on behalf of the appellant, and Dr. Meyer S. Fox testified on behalf of respondent. They had made audiometric tests on the appellant and testified in regard to the results of their tests. The Industrial Commission selected the best readings for each ear at frequencies of 500, 1,000 and 2,000 cycles per second and found the average decibel loss to be 48.33 for the right ear and 45 for the left ear. It then applied the hearing disability table in the report of the medical subcommittee, and according to that table the average decibel loss of 48 is 51.7 per cent of compensable hearing loss and 45 average decibel loss is 46.7 per cent of compensable hearing loss. This percentage did not take into account the possibility of hearing loss which accompanies age (presbycusis). Under sec. Ind 80.25 one-half per cent was deductible for each year begining at the age of 50, seven per cent was deductible for the non-occupational loss of hearing.

The medical subcommittee recommendation, which was adopted by the commission in its rule Ind 80.25, is based on expert testimony and testing in thousands of cases where presbycusis is evident. This committee was made up of four otologists and an industrial physician. The function of the subcommittee was to make recommendations to the advisory committee and to the Industrial Commission with respect to the whole problem of industrially induced hearing loss.

The issue in this case is whether that part of 3 Wis.Adm.Code, § Ind 80.25, which provides that in determining loss of hearing resulting from noisy employment, a portion of the loss should be ascribed to age, is not in conflict with sec. 102.555(4), Stats.1955, which required a reduction in the period for which indemnity was payable by two and one-half per cent for each year that the age of the employee exceeded 50.

3. Wis.Adm.Code, § Ind 80.25, provides in part:

'Loss of hearing; determination. Until otherwise directed the commission as a matter of policy adopts the report of the medical subcommittee of the advisory committee on workmen's compensation legislation of the industrial commission, dated April 5, 1954, for determination of loss of hearing in workmen's compensation cases, to be hereafter decided, regardless of the date of injury.

'Such report is herewith attached.

'Report of Medical Subcommittee to Advisory Committee on Workmen's Compensation Legislation.

'* * * The committee agrees that an allowance should be made for loss of hearing which accompanies advancing age (Presbycusi...