Johnson v. Industrial Commission of Wis.

• Decision Date: 02 December 1958
• Citation: 93 N.W.2d 439,5 Wis.2d 584
• Parties: Raymond F. JOHNSON, Plaintiff and Appellant, v. INDUSTRIAL COMMISSION OF WISCONSIN, Walco Engineering and Construction Company, a foreign corporation, Standard Accident Insurance Company, a foreign Insurance corporation, Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 439

93 N.W.2d 439

5 Wis.2d 584

Raymond F. JOHNSON, Plaintiff and Appellant, v. INDUSTRIAL COMMISSION OF WISCONSIN, Walco Engineering and Construction Company, a foreign corporation Standard Accident Insurance Company, a foreign Insurance corporation Defendants and Respondents.

Supreme Court of Wisconsin.

Dec. 2, 1958.

Borg, McGill & Moodie, Superior, William L. McCusker, Madison, of counsel, for appellant.

Stewart G. Honeck, Atty Gen., Mortimer Levitan, Asst. Atty. Gen.; Beatrice Lampert, Asst. Atty. Gen., for respondent Industrial Comm.

Hughes, Anderson & Davis, Superior, for respondents.

HALLOWS, Justice.

The question on appeal is whether traumatic neurosis is compensable under the Workmen's Compensation Act, and if so, whether the healing period for such mental injury is to be determined solely on a physiological basis.

Dr. Houkom, the Industrial Commission and the circuit court took the view that the limitation in the use of the appellant's arm after November 1, 1954 was a residual. The Industrial Commission could only find such permanent partial disability on the basis that traumatic neurosis existed and caused such limitation of use. Either the appellant has a true case of traumatic neurosis or hysteria, or he is malingering. This was a question of fact for the Commission to decide. The finding of disability necessarily rules out malingering and is based upon the evidence that the accident caused not only physical injury but also the appellant's mental condition. From the evidence the disability is real and there is no proof of malingering. From a review of the record we are satisfied that the appellant has an honest, fixed, definite and continuing belief that he is suffering severe pain in his right arm and hand and is unable consciously to use the arm to its fullest extent. We point out that the neurosis suffered by the appellant was the direct result of the injury and not one collateral or unrelated thereto.

While this court has not heretofore held that traumatic neurosis is compensable under the Workmen's Compensation Act we believe that traumatic neurosis or hysteria caused by an industrial accident is a compensable injury. In Miller Rasmussen Ice & Coal Co. v. Industrial Comm., 1953, 263 Wis. 538, 57 N.W.2d 736, this court held the psychiatric reports were too uncertain and lacking in positiveness to support the Commission's finding that a slight injury in 1945 caused the employee's traumatic neurosis. The implication in this case and the view of the dissenting opinion was that traumatic neurosis is a compensable injury.

Injury is defined in sec. 102.01(2), Stats., 16 W.S.A., p. 290, as "injury' is mental or physical harm to an employee caused by accident or disease.' This section recognizes there may be two effects of an accident: (1) physical harm, which involves the body in some muscular, orthopedic, anatomical or other physical aspects, and (2) mental harm, which affects the human mind in many different ways. The mental health of a person is as important as his physical health. The impairment of either may result in an actual physical inability to work. However, claims for mental health under the Workmen's Compensation Act should be examined with caution and carefulness because of the danger inherent in such cases of malingering. Traumatic neurosis and malingering are sometimes confused, but there are objective criteria by which the two conditions can be distinguished. See Current Medicine for Attorneys, Vol. III, No. 14, November 1956, p. 27.

Many states have recognized that where occupationally incurred injury to the body and shock to the nervous system produces a neurosis resulting in disability or death it is compensable. 1 Larson, Workmen's Compensation Law, Sec. 42.22, p. 616 and cases cited; Annotation Workmen's Compensation--Neurasthenia 44 A.L.R. 500; Horovitz, Injury and Death Under Workmen's Compensation Laws, 3rd Ed., p. 75. For a discussion of traumatic neurosis, its medical background and as a basis for liability see articles in 41 Marquette Law Review 421 (1958); Schweitzer 4, Cyclopedia of Trial Practice, Injuries to the Nervous System, p. 2425; McBride, 5th Ed., Disability Evaluation, Principles of Treatment of Compensable Injuries, p. 638.

A recent case involving neurosis of the type known as conversion hysteria was held a compensable injury under the Workmen's Compensation Act even where the complainant suffered from a mental or personality disturbance which existed prior to the injury. Redfern v. Sparks-Withington, 353 Mich. 286, 91 N.W.2d 516. In Rialto Lead & Zinc Co. v. State Industrial Comm., 1925, 112 Okl. 101, 240 P. 96, 44 A.L.R. 494, a mental condition known as neurasthenia which existed as a direct result of a physical injury sustained by the employee and which prevented him from working, was held to be compensable under the Oklahoma Workmen's Compensation Act [85 O.S.1951 § 1 et seq.]. In United States Fuel Co. v. Industrial Comm., 1924, 313 Ill. 590, 145 N.E. 122, it was held that an employee who has an honest, fixed and continuing belief that he is suffering severe bodily pain which manifested itself in his inability to do work and in his gait, which was brought about by accidental injury, was entitled to compensation.

In Ladner v. Higgins, Inc., La.App.1954, 71 So.2d 242, the employee, a 'chipper', suffered a shoulder injury when the scaffolding upon which he was standing collapsed. Some months later, while working in an unrelated employment, he picked up a 'chippter's' gun and almost immediately suffered a reaction which induced temporary blindness and vomiting. Compensation was allowed.

Many courts which have considered this problem have held that where there has been a physical injury or trauma and the claimant's disability is increased or prolonged by traumatic neurosis or hysterical paralysis the disability including the effects of the neurosis is compensable. The acceptance of this ruling has involved many different kinds of neurosis. See 1 Larson, Workmen's Compensation Law, Sec. 42.22, p. 616.

One case has gone so far as to allow recovery for traumatic neurosis coming on much later as a change in condition. Skelly v. Sunshine Mining Co., 1941, 62 Idaho 192, 109 P.2d 622. A neurotic mental disability is as real as any other disability and may be as disastrous. In Redrick v. Knapp Bros. Co., 1937, 127 Pa.Super. 92, 193 A. 117, 118, the court said:

'There can be no reasonable doubt, in our opinion, that the employee's death was the direct result of the accident; that is, it was brought about by fear and worry that the punctured wound in his foot, caused by his stepping on a nail, would result in lockjaw.'

Compensation for traumatic neurosis may be awarded after all physical symptoms have disappeared. Such recovery was allowed in American Smelting & Refining Co. v. Industrial Comm., 1942, 59 Ariz. 87, 123 P.2d 163, where the physical effects of the falling of rock on the claimant's shoulder had cleared up but complete paralysis of one arm remained, which was attributed solely to hysteria. A workman who had entirely recovered from muscular injury to his leg was granted compensation where he suffered from traumatic neurasthenia resulting from the accident and honestly, though mistakenly, believed he could not work. Eaves v. Blaenclydach Colliery Co. [1909] 2 K.B. (Eng.) 73 C.A. The court said in the Eaves Case: 'It seems to me entirely a fallacy to say that a man's right to...