Md. Cas. Co. v. Indus. Comm'n

• Decision Date: 07 February 1939
• Citation: 230 Wis. 363,284 N.W. 36
• Parties: MARYLAND CASUALTY CO. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

230 Wis. 363

284 N.W. 36

MARYLAND CASUALTY CO.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 7, 1939.

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

Affirmed.

Action by Maryland Casualty Company against the Industrial Commission and others to vacate an award of the Commission. From a judgment affirming the award entered July 8, 1938, the plaintiff appeals.

On August 17, 1934, Bertha Forness, a maid in a tuberculosis sanatorium operated by Douglas county, applied for compensation for tuberculosis sustained as an occupational disease while in the course of her employment, giving on or about June 15, 1933, as the date of her injury. On June 15, 1933, the Employers Mutual Liability Insurance Company was the insurance carrier of the county, and was made a party to the proceeding. On the hearing it was determined that the applicant became afflicted with tuberculosis in March or April, 1932, instead of June 15, 1933. Contention was then made that there was no liability because the application was not made within two years from the date of the affliction, but the Commission held that at the time of the affliction the applicant was told by her doctor that her trouble was pleurisy, and that she made her application for compensation for tuberculosis within two years from the time she learned that her disease was in fact tuberculosis. The Commission made an interlocutory award fixing the compensation to be presently and until further hearing paid to the applicant by the county and the Employers Mutual Company. Action was brought to vacate this award but the court confirmed it and on appeal to this court the judgment was affirmed April 7, 1937. Trustees of Middle River Sanatorium v. Industrial Comm., 224 Wis. 536, 272 N.W. 483. The award was that Douglas county and the Employers Mutual Company should pay the applicant for her loss of wages incurred up to that time, including the loss in 1932, and “so long as her disability continued, subject to the right of hearing by either party”; determined that applicant's disability had not ceased and it could not be determined at that time how long said disability would continue; that jurisdiction was therefore reserved of the question of further disability as well as of the medical and hospital expense incurred by the applicant as a result of her condition. The Employers Mutual Company has paid the amounts ordered by the interlocutory award to the aggregate of $2,610.22. In January or February, 1937, the Employers Mutual Company discovered that it was not the county's carrier in March and April, 1932, but became such on June 15, 1933. It thereupon petitioned the Commission to determine (1) whether it was the carrier or liable as insurer in March or April, 1932; (2) whether it was entitled to reimbursement of the amounts it had paid pursuant to the award from the county or from the Maryland Casualty Company who it alleged was the carrier in March or April, 1932; (3) whether it would be entitled to reimbursement from them if it should be compelled to make payments of compensation in the future; and (4) if held for future payments, whether the applicant was still disabled and whether there is any liability on the part of the employer or its insurer for any medical or hospital expense of the applicant. Miss Forness had previously made application for payment of medical expenses and hospitalization, and her application was still pending. Copies of the petitions of the Employers Mutual Company and of Miss Forness were served on the Maryland Casualty Company and the latter filed answers to both with the Commission. Douglas county filed an answer to the petitions of the Employers Mutual Company and Miss Forness by which it claimed that it was entitled to have any award to Miss Forness of the expenses incurred by her and any award of future compensation to her paid by the Maryland Casualty Company if such awards were not ordered paid by the Employers Mutual Company, and the Maryland Casualty Company filed an answer to this claim denying that it was the insurer of the county at the time Miss Forness sustained her affliction. In its answer to the petition of the Employers Mutual Company the Maryland Casualty Company alleged that that company was the insurer at the time Miss Forness sustained her affliction. The Commission set June 4, 1937, as the time for hearing the petitions and gave notice to the Maryland Casualty Company. At the time set the Maryland Casualty Company appeared, and at the opening of the hearing objected to the jurisdiction of the Commission. The Employers Mutual Company stated that it was not contesting the right or amount of the expenses claimed by Miss Forness if it were held liable. On inquiry by the examiner the Maryland Casualty Company by its counsel stated that it had not considered whether Miss Forness was entitled to these expenses. It further stated that if it were held that it was properly impleaded as a party it would be entitled to a trial on all the issues. The examiner conceded that it was so entitled if it wanted such trial. Counsel then stated that it would not take part in the proceedings until the examiner determined whether it was a party, and stated that it was opposed to being made a party on the ground that more than two years elapsed after the applicant filed her claim and reiterated that the Maryland Casualty Company would not be bound by any further proceeding until it was determined whether it was properly a party to the proceeding. The examiner then ruled that the Maryland Casualty Company was a party and he would receive any evidence it had to offer. Counsel then objected to any further proceeding until it could procure a review of the ruling of the examiner by the Commission. The examiner ruled that with that objection of record the hearing would proceed and proceed it did. Counsel for the Maryland Casualty Company was given opportunity to call any witnesses it desired, to cross-examine any witnesses then heard, and to call any witnesses that it desired for cross-examination that had been examined at previous hearings. The evidence taken at the original hearing was received subject to further hearings for cross-examination if counsel desired. Counsel stated in effect that he considered that the Maryland Casualty Company was entitled to a ruling from the Commission as to its being a party to the proceeding and was not prepared to proceed until such ruling was procured. Evidence was taken on June 4, 1937, but the hearing was not concluded. Further hearing was had on September 16, 1937, and further evidence taken. Counsel for Maryland Casualty Company was present at the latter hearing. In the meantime Maryland Casualty Company was sent a transcript of the proceedings on all previous hearings, including the testimony taken thereat. Its counsel had access to the files of the Commission March 10, 1937. The Commission wrote counsel on June 5, 1937, that he was entitled to a full hearing de novo on all questions involved if he desired it, but he made no request for such hearing and finally stood on his claimed right to a ruling from the Commission that the Maryland Casualty Company could not be made party to the proceeding or held liable on a claim of which it had no notice within two years from date of injury. On the matter coming before the Industrial Commission it ruled that the applicant, Miss Forness, was entitled to medical and hospital expenses as prayed; that she became afflicted with tuberculosis in March or April, 1932, and that the Maryland Casualty Company was the county's insurer at the time the affliction occurred and liable for these expenses and for her wage loss since June 4, 1937, when the Employers Mutual Company ceased paying, and for loss of wages in the future during her disability, which was found to be total, the length of the continuance of which could not then be determined; that the treatment which she was and had been receiving tended to lessen the period of total disability; and that the Employers Mutual Company was released from further payments to the applicant. On this award two separate actions were brought, one by the Maryland Casualty Company to vacate the award, the instant case, and the other by the Employers Mutual Company to modify the award by ordering the Maryland Casualty Company or the county to reimburse...