Ogren v. City of Duluth
| Decision Date | 20 April 1945 |
| Docket Number | 33947. |
| Parties | OGREN v. CITY OF DULUTH. |
| Court | Minnesota Supreme Court |
Rehearing Denied May 3, 1945.
Syllabus by the Court.
1. Actual knowledge by a captain in charge of a city fire station of the occurrences manifesting that a fireman had been disabled from an occupational disease is actual knowledge of the city.
2. An employer waives the right to have medical questions referred to a medical board for decision as provided in L.1943, c. 633, s 11, by conduct at the hearing inconsistent with the assertion of the right.
3. The provisions of L.1943, c. 633, when construed in the light of their legislative history and according to the rules prescribed by Minn.St.1941, ss 645.21, 645.35, Mason St.1944 Supp. ss 10933-22, 10933-36, are not retroactive, and consequently a right to compensation under Minn.St.1941, s 176.66, for death caused by occupational disease accruing while that statute was in force is governed by that statute but the procedure and evidence to establish the right are governed by the 1943 statute as the law in force at the time the right is asserted.
4. Where the evidence offered by the employer is sufficient to overcome a presumption that a disease claimed to have caused death was due to the nature of the employe's employment and there is evidence of the employe that it was, giving the employe's dependent the benefit of such a presumption is harmless error, because the presumption disappeared from the case when the evidence sufficient to overcome it was received.
5. An allegation in a claim petition that the deceased died from Myocarditis is not at variance with proofs that he died of Coronary sclerosis, because the word myocarditis is used as including coronary sclerosis.
6. Evidence examined and Held to sustain a finding that an employe died of coronary sclerosis contracted in and due to the nature of his employment.
Harry E. Weinberg, City Atty., and Ray W. Bruess, Asst. City Atty. both of Duluth, for relator.
M J. McKeon, of Duluth, for respondent.
On October 25, 1943, respondent filed a claim petition for workmen's compensation benefits on account of the death of her husband, alleged to have been caused by 'myocarditis, an occupational disease, arising out of and in the course of his said employment,' by relator as a fire fighter. The defenses, principally relied on, were failure on the part of respondent to give the employer statutory notice of claim and that the myocarditis or coronary sclerosis from which the employe died was not an occupational disease within the meaning of the workmen's compensation act, because it was not due to the nature of his employment.
The employe was employed by the city of Duluth as a fire fighter from October 15, 1916, until January 8, 1942. Shortly after midnight on August 31, 1941, an alarm, which proved to be a 'stray' or false one, was received at the fire station where he was on duty. Apparently, he was sleeping at the time on the second floor. He arose and descended to the first floor to take his place on some fire apparatus to go to the fire, if there was one. Because of a weak spell, he was barely able to get to the apparatus. When it was discovered that the apparatus would not have to leave the fire hall, the men returned to the second floor to go to bed again. The employe climbed the stairs with some difficulty. When he got to the second floor he was gasping for breath. He then went to bed, where he gasped and breathed hard. He got up for a period of about ten minutes for relief. The captain in charge of the fire station was present during all these occurrences and occupied the bed next to employe's. After employe returned to his bed, the captain observed his condition and inquired, as it was his duty to do under the circumstances, whether there was anything he could do for him. The employe answered in the negative.
The employe performed no duties as a fire fighter after the occurrences mentioned. Beginning on the following day, he was hospitalized for about ten days. On September 30, 1941, he obtained temporary relief from the Duluth Firemen's Relief Association. On January 8, 1942, he resigned from the fire department. He died on August 25, 1942.
Such further statement of the facts as may be necessary will be made separately in connection with the questions raised here.
1. The employer contends that the employe and respondent, his dependent, failed to serve the statutory notice of the occurrence of the injury required by Minn.St.1941, s 176.16, Mason St.1927, s 4280. The statute does not require written notice of death or injury where the employer has actual knowledge. Actual knowledge by an officer or agent standing in the employer's place for the time being is actual knowledge of the employer. Markoff v. Emeralite Surfacing Products Co., 190 Minn. 555, 252 N.W. 439 (actual knowledge of employer's superintendent acquired ten minutes after the injury); State ex rel. City of Northfield v. District Court, 131 Minn. 352, 155 N.W. 103, Ann.Cas.1917D 866 (actual knowledge of city's mayor and street commissioner acquired immediately after the injury). Actual knowledge of an officer in charge of a fire station of the happening of an accidental injury is actual knowledge on the part of the city. Salt Lake City v. Industrial Comm., 104 Utah 436, 140 P.2d 644 (). The finding that the city had actual knowledge of the employe's occupational disease is sustained by the evidence that the captain in charge of the fire station had actual knowledge thereof within ten minutes after its occurrence.
2. The employer claims that the commission erroneously tried the claim under Minn.St.1941, s 176.66, instead of under L.1943, c. 633. So far as here material, the 1941 statute provides that employes disabled from certain diseases due to the nature of and contracted while employed in certain processes of an industrial character, which are listed in a schedule (subd. 9) of corresponding specified diseases and processes and which are the occupational diseases and occupations covered by the statute, shall be entitled to compensation as upon the happening of an accidental injury. Subdivision 8 creates a presumption that, if the employe at or immediately before the date of disablement was employed in any of the processes mentioned and his disease is the corresponding one mentioned in the schedule, 'the disease presumptively shall be deemed to have been due to the nature of that employment.' The schedule (No. 24) lists the following occupational diseases as due to the hazards of fire fighting: 'myocarditis, coronary sclerosis, and pneumonia or its sequelae in firemen,' and, as the corresponding process, 'Active duty with organized fire department.'
The 1943 statute in express terms (ss 5, 6) repealed the subdivisions of the 1941 law which contained the schedules of diseases and processes and the presumption mentioned. In addition, it expressly provides in s 3(o) that prior legislative enumerations of occupational disease shall not entitle any employe afflicted with such disease to a presumption that the same is in fact an occupational disease.
Relator's claim is that the procedural and evidentiary provisions of the 1943 statute control, with the consequence (1) that respondent was not entitled to a presumption that myocarditis or coronary sclerosis should be deemed to have been due to the nature of the employe's employment as a fire fighter; and (2) that the medical questions involved should have been referred to a medical board for decision instead of being decided by the commission. We think that the employer is entitled to raise only the question whether respondent was entitled to the presumption. The question with respect to decision by the medical board of the medical questions has been eliminated by relator's waiver of the right to a decision by that tribunal. At the opening of the hearing, in response to an inquiry by counsel who appeared for relator, the referee stated that the case would be tried under the 1941 statute and not under the 1943 act. After some discussion in which counsel insisted that the 1943 statute was applicable, the referee asked him 'in what way' he claimed it applied. In answer to this inquiry, counsel stated that respondent was not entitled to the presumption under the 1941 statute, which he said is 'one instance,' and then stated: 'Now, there are undoubtedly more, and if it is necessary to go into it, why, I should like a short time to reexamine the act.' A great deal of argument was had concerning the applicability of the presumption. Thereupon the hearing proceeded with no further mention of a reference of the medical questions to the medical board and without any demand for such a reference. The 1943 statute (s 11) provides that each party may take the testimony of only one physician and that, when that has been done, the medical questions shall be referred to the medical board, therein provided, for decision. The parties entirely ignored the provisions of this section and proceeded upon the supposition that decision of medical questions, as well as others, should be made by the referee. Each party took the testimony of two physicians and not of one only. The hearing was adjourned from Duluth to Minneapolis to enable the respondent to take the testimony of the second physician. All this was done voluntarily and without objection by the employer. The latter's counsel did not raise the points, other than the one relating to the presumption, which he indicated to the referee he might raise after he had reexamined the act. The only permissible inference is that counsel had decided not to press the point that the medical questions should be...
To continue reading
Request your trial