N. End Foundry Co. v. Indus. Comm'n
Decision Date | 08 January 1935 |
Citation | 258 N.W. 439,217 Wis. 363 |
Parties | NORTH END FOUNDRY CO. ET AL. v. INDUSTRIAL COMMISSION ET AL., AND FOUR OTHER CASES. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeals from judgments of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.
Reversed.
The five actions involved here were begun (No. 216) on February 9, 1934, the others on November 26, 1933, by the North End Foundry Company and its insurance carrier, Massachusetts Bonding & Insurance Company, hereinafter referred to as the insurance carrier, against the Industrial Commission and the several claimants, to set aside the award of the Industrial Commission made in each of the cases. There was a judgment modifying and affirming the award in each case, dated August 6, 1934, from which the Industrial Commission and the several applicants have appealed. The North End Foundry Company and the insurance carrier have appealed, claiming that they are not liable in any amount whatever.
Such facts as are necessary to an understanding of the questions determined will be stated in the opinion.Michael Levin, of Milwaukee (Shaw, Muskat & Paulsen, of Milwaukee, of counsel), for plaintiff.
James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., E. J. Herte, of Milwaukee, Olin & Butler and B. H. Stebbins, all of Madison (Merle W. Hillis, of Milwaukee, of counsel), for defendant.
Wood, Warner & Tyrrell and Quarles, Spence & Quarles, all of Milwaukee (Kenneth P. Grubb and Jefferson D. Burrus, both of Milwaukee, of counsel), amici curiæ.
We shall first consider the questions raised upon the appeal of the plaintiffs. It is the contention of the plaintiffs that the several claimants suffered no compensable disability while they were in the employment of the plaintiff foundry company. The controversy arose in the following manner: The Travelers' Insurance Company had carried the compensation risk of the plaintiff foundry company for many years prior to November 28, 1932, on which date they terminated the contract and the Massachusetts Bonding & Insurance Company became the insurance carrier. Thereafter it served a ten-day notice of cancellation, pursuant to the provisions of section 102.31, Wis. Stats. The foundry company then requested the Employers' Mutual Liability Insurance Company to carry the risk. This the Employers' refused to do unless every person in the employ of the foundry company was subjected to a physical examination by a physician to be selected by the insurance carrier. All employees submitted to the examination, and the examining physician with respect to the claimants here involved made the following report as a result of his examination:
Prior to December 21, 1932, none of the claimants had suffered any wage loss by reason of any disability due to exposure to silica dust. When claimants came back on December 22d, they were told they would not be given work for the reason that the result of their physical examination was not satisfactory, and the company would no longer employ them.
The controlling question raised in each of the cases is the same, but the facts and circumstances of the cases differ somewhat. No useful end would be served by setting forth a statement of the facts in detail in each case. The commission found that claimant Pernovich was totally disabled. All of the questions which we are called upon to consider arise under the facts of the Pernovich case. We shall therefore state the facts in that case somewhat in detail.
Pernovich was 39 years of age. He had worked in shops in Milwaukee, began work for the North End Foundry Company in 1926, and continued in that employment down to the time of his discharge. During the course of his employment he was in turn chipper, moulder, sand blast operator, fireman, engineer, and, in his own language, “everything that came along.” He never was off because of sickness, once or twice he had a little diarrhea, a cold and a little stomach trouble. He lost no time and no wages prior to December 19th because of his physical condition. He was examined by Dr. H. C. Dallwig on March 8, 1933, who found he was suffering from second stage silicosis with superimposed tuberculosis. The doctor gave it as his opinion that the man was totally disabled; that he must have had tuberculosis while he was still at work, but it was impossible to say when it began. The doctor was asked this question, “And in your opinion is a man with silicosis, one you term a second stage, with a superimposed tuberculosis, able to do any work?” to which he replied:
On cross-examination, the doctor testified:
Pernovich testified:
It appears without dispute that, in response to a demand from the insurance carrier that the men be examined, the men were laid off on December 19th. Reinhart Koepsell testified:
Pernovich testified on this point:
Upon other medical evidence which was substantially that given by Dr. Dallwig, the commission found that Pernovich “during his employment had been employed in chipping, grinding and cleaning castings and also in the sandblasting operations; that during all this time he was exposed to the inhalation of silica dust; that the last day he actually worked was December 19, 1932; that on December 21, 1932, the employer directed the applicant to submit to a medical examination to determine his physical condition; that on the evening of December 21st the employer was advised by the examining physician that the applicant had active tuberculosis superimposed upon silicosis and that the applicant should not be continued in his dusty employment; that on December 22, 1932, the applicant was told by his foreman that he ‘was no good and couldn't work’ any longer, and, in the words of the president of the respondent, ‘the next time (day after the medical examination) we saw them, they were told we could not employ them any more on account of the result of this examination;’ that on the basis of the applicant's discharge because of his physical condition and on the basis of further medical examinations, it is clear that following December 21, 1932, the applicant was totally disabled and undoubtedly will be so disabled permanently.”
Upon these findings the commission awarded compensation amounting to $17,976. In the case of Nyoz, the award was $14,481.28.
Upon the claims of Repati, Motowski, and Murawski, the commission did not make final awards.
Upon the record the following facts appear to be undisputed: (1) The relation of employer and employee existed between the North End Foundry Company and Pernovich. (2) At no time down to and including December 22, 1932, had Pernovich ever sustained a wage loss due to his inability to perform his work in the usual and customary way. (3) That silicosis is a condition of the lungs brought about through the inhalation of certain forms of dust, in this case, silica dust; that it has three stages; that Pernovich was in the second stage of this disease; that it had existed in some stage for probably five years or more; that Pernovich had tuberculosis superimposed upon silicosis; that in the region affected by silicosis it was also affected by tuberculosis; that, when silicosis reaches a certain stage, the end result is inevitable, that is, there is no cure. Apparently deterioration progresses more rapidly in some individuals than in others. (4) That Pernovich was not discharged because of any present inability to perform his work, but because of the condition disclosed by the medical examination which the employer was fearful would lead to future disability. Whether the discharge be dated from the 19th day of December, when they were discharged subject to be re-employed or from the 22d day of December when they were told they would not be re-employed, is not material to a determination of the issue in this case. (5) That Pernovich, as is frequently the case while suffering from an advanced stage of silicosis upon which was superimposed tuberculosis, was able to and did continue to perform...
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