Mellen Lumber Co. v. Indus. Comm'n of Wis.

• Decision Date: 31 May 1913
• Citation: 154 Wis. 114,142 N.W. 187
• Parties: MELLEN LUMBER CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 114

142 N.W. 187

MELLEN LUMBER CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 31, 1913.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Mellen Lumber Company against the Industrial Commission of Wisconsin and another to review findings of the Commission. From a judgment confirming the award of the Commission, plaintiff appeals. Affirmed.Brown, Pradt & Genrich, of Wausau, for appellant.

Walter C. Owen, Atty. Gen., Byron H. Stebbins, Asst. Atty. Gen., and W. Stanley Smith, of Ashland, for respondents.

BARNES, J.

This case arises under the Workmen's Compensation Act. One Winters was employed as a shingle sawyer by the plaintiff. While at work he lost the thumb and index finger of his left hand. He was earning to exceed $750 per year when injured. He applied to the industrial commission to fix the amount of compensation which he was entitled to receive. The matter was referred to Hon. A. W. Sanborn to take testimony and make findings and report the same to the commission. Mr. Sanborn found that the earning capacity of the applicant had been reduced to $9 per week by reason of the injury, and that he was entitled to recover 65 per cent. of the difference between the maximum amount allowable for total disability under the compensation act, to wit, $14.42 a week, and what he was capable of earning thereafter, to wit, $9 a week, or $3.52 a week for a period of 15 years, or an aggregate of $2,745.60. The commission made an award in accordance with these findings.

The plaintiff commenced an action to review these findings alleging, among other things, that the award had been made without a final hearing before the commission. This contention was sustained, and the record was remanded for further hearing before the commission. Thereafter the commission made a second award. It was found as a fact that Winters was totally incapacitated by the accident from again following the occupation of shingle sawyer. It is not expressly found that the injured employé could engage in other lines of employment, but in the decision filed with the award it is said: “We feel that there are many occupations open to the applicant where he can earn a good wage, and we have little doubt that he will find his place as a useful selfsupporting member of society.” The commission on the final hearing awarded the claimant 65 per cent. of the maximum allowance, $14.42 a week, or $9.37, until the weekly payments aggregated $3,000, less the sum of $46.85, which had already been paid.

Among other things, the commission found: “That, because of the injuries received in said accident, the said applicant, William H. Winters, is totally and permanently disabled so that he cannot return to the employment in which he was working at the time of the accident, and there is a total permanent impairment of his earning capacity in such employment.” This second award was confirmed by the court, and plaintiff appeals from the judgment of confirmation.

It is perfectly obvious that the commission did not find, and did not intend to find, that Winters was incapacitated from engaging in all gainful occupations. It did find that he was permanently disabled from engaging in the work of shingle sawyer. The commission construed the compensation act to mean that, where an employé is totally disabled from performing the particular work which he was performing when the injury occurred, he is entitled to recover the maximum allowance for total disability, no matter what his earning capacity may be in other callings. The circuit court came substantially to the same conclusion.

The appeal involves but a single question, and that is a question of law, of statutory construction. The appellant urges that the construction adopted is unreasonable and was not within the contemplation of the Legislature; that it is absurd to say that it was intended to give the applicant here, who concededly is capable of earning a substantial wage, the same compensation that he would receive had he lost both his arms or both his legs, and that if such is the meaning of the law it is unconstitutional because it deprives the employer of his property without due process of law. Some criticism is made by the appellant on the alleged hybrid findings of the commission, and it is insisted that there should be either a clearcut finding of total disability or one of partial disability. If the commission placed the correct interpretation upon the law, its findings were properly made. It found total disability to do a certain kind of work, but not to do all kinds of work, and that the statute made it obligatory upon the commission to award compensation as for total disability.

[1] The material provisions of the Compensation Act, §§ 2394--1 to 2394--71 Stats. (1911), are the following:

Section 2394--9:

“(2) If the accident causes disability, an indemnity which shall be payable as wages on the eighth day after the injured employé leaves work as the result of the injury, and weekly thereafter, which weekly indemnity shall be as follows:

(a) If the accident causes total disability, sixty-five per cent. of the average weekly earnings during the period of such total disability: Provided that, if the disability is such as not only to render the injured employé entirely incapable of work, but also so helpless as to require the assistance of a nurse, the weekly indemnity during the period of such assistance after the first ninety days shall be increased to one hundred per cent. of the average weekly earnings.

(b) If the accident causes partial disability, sixty-five per cent. of the weekly loss in wages during the period of such partial disability.

(c) If the disability caused by the accident is at times total and at times partial, the weekly indemnity during the periods of each such...