Ruehlow v. Indus. Comm'n of Wis.

• Decision Date: 05 December 1933
• Citation: 213 Wis. 240,251 N.W. 451
• Parties: RUEHLOW v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

213 Wis. 240

251 N.W. 451

RUEHLOW

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1933.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Fred R. Ruehlow against the Industrial Commission of Wisconsin and the State of Wisconsin. From a judgment setting aside an order of the Commission and remanding record to Commission for further proceedings, the Industrial Commission appeals.--[By Editorial Staff.]

Reversed with directions.

Action commenced by the plaintiff on March 22, 1932, to review an order of the Industrial Commission. From a judgment enteredJune 24, 1933, setting aside the order of the commission dated March 10, 1932, which ordered the secretary of state to issue a warrant directing the state treasurer to pay to the plaintiff the sum of $4,019.20 in monthly installments, and remanding the record to the commission for further proceedings, the Industrial Commission appealed.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellant.

H. F. McAndrews, of Kaukauna, for respondent.

NELSON, Justice.

The facts are few and undisputed. The plaintiff, when twelve years of age, lost the vision of his right eye as a result of a nonindustrial accident. On July 6, 1931, at the age of forty years, he lost the vision of his left eye as a result of an industrial accident. There is no question as to his right to recover compensation from his employer for the loss of vision of his left eye.

The question here relates only to the number of weeks of additional compensation the plaintiff should be paid out of the special state fund created by virtue of subsec. (6) (a) of section 102.09, 1929 Stats. (substantially re-enacted and re-numbered section 102.59).

Subsec. (6) (a) of section 102.09, at the time of the accident, provided:

“If an employee has present at the time of injury permanent disability consisting of twenty-five per cent. or more loss or impairment of a hand, arm, foot, leg, ear or eye, and, as a result of such injury, incurs further permanent disability consisting of twenty-five per cent. or more loss or impairment of a hand, arm, foot, leg, ear or eye (not previously disabled), he shall be paid from the funds provided in this subsection additional compensation as specified in item 16, paragraph (a), subsection (5) of this section.”

Said item 16, as enacted at the time of the accident (now 102.52 (a)(16), provides:

“In case an accident causes more than one permanent injury specified in this paragraph, the period for which indemnity shall be payable for the lesser injury shall be increased by twenty per cent., except in the case of injuries to both eyes, when the indemnity period for the lesser injury shall be trebled.”

Said item 16 was obviously intended to measure the increased compensation to which an employee is entitled when an industrial accident causes more than one of the major permanent partial disabilities specified in section 102.52, 1931 Stats. No particular difficulty could arise in applying that law to an accident causing more than one of such injuries, after the facts had been found, viz., an industrial accident causing more than one of the injuries specified and a lesser injury.

[1][2] In the present action, however, we have a situation which requires us to determine the meaning of item 16 when incorporated into subsec. (6) and in connection with an industrial accident which caused only the loss of vision of one eye, the vision of the other eye having been destroyed many years before by a nonindustrial accident. Strictly speaking, we have no lesser injury since the vision of both eyes is gone. We must, however, construe this provision of the Workmen's Compensation Act liberally to the end that such compensation as the Legislature intended should be paid, shall be paid.

Although item 16 deals with a situation involving a lesser injury, we have no hesitation in reaching the conclusion that the Legislature intended that one situated as is the plaintiff should be additionally compensated out of the state fund. With this conclusion, the Industrial Commission is in entire accord.

The perplexing question, however, is: To how many weeks of additional compensation is the plaintiff entitled under the law and the facts? The commission was of the opinion that the plaintiff is entitled to additional compensation from the state fund for a period of 320 weeks. The circuit court was of the opinion that the plaintiff is entitled to additional compensation for a period of 570 weeks.

There is no dispute as to the right of the plaintiff to recover compensation from his employer, in addition to that to be paid for the healing period, if any, for a period of 250 weeks, chapter 210, Laws of 1931, now section 102.52 (a)(13); nor as to the maximum period for which an employee at age 40 may recover compensation for permanent total disability,...