Vande Zande v. Department of Industry, Labor and Human Relations

• Decision Date: 19 December 1975
• Docket Number: No. 152,152
• Citation: 236 N.W.2d 255,70 Wis. 2d 1086
• Parties: Melvin J. VANDE ZANDE, Appellant, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, et al., Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 255

236 N.W.2d 255

70 Wis.2d 1086

Melvin J. VANDE ZANDE, Appellant, v.DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, et al., Respondents.

No. 152 (1974).

Supreme Court of Wisconsin.

Dec. 19, 1975.

Lawton & Cates, Madison, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, for respondent.

Gordon Samuelsen, Asst. Atty. Gen., Madison, for DILHR.

CANNOR T. HANSEN, Justice.

This case presents two issues:

1.Did the department act without or in excess of its powers in finding the applicant permanently partially disabled to the extent of 20 percent of total disability, and making an award based on that finding?

2.Did the department act without or in excess of its powers in failing to award compensation for alleged periods of temporary partial disability?

On July 3, 1969, the applicant, age forty-four, was injured when the brakes of the truck which he was driving in the course of his employment for defendant-respondent, General Asphalt, Inc., failed to operate properly.The truck headed for a lake and just before it went in, applicant jumped out of the cab, sustaining compensable injury.The applicant has a sixth-grade education and had engaged in manual labor most of his life.Certain periods of temporary total disability sustained by the applicant were conceded.These periods were July 3, 1969, to January 1, 1970; July 20, 1971 to August 20, 1971; and November 3, 1972 to November 28, 1972.

The examiner found that the applicant had suffered the following injuries as a result of the accident: Total deafness in his left ear, a skull fracture, loss of sense of taste and smell, facial paralysis and periods of intermittent headaches and dizziness.He also found that the applicant's wage-earning ability had been impaired and he had suffered permanent partial disability to the extent of 20 percent of permanent total disability.The award for this finding of disability was 255 weeks of compensation.He also found that the applicant had suffered temporary total disability during the periods conceded.

A petition for review of the findings and order of the examiner was filed with the department on June 13, 1973.The department entered an interlocutory order modifying the order of the examiner to the extent that the first period of temporary total disability was found to be from July 3, 1969, to July 9, 1970, rather than from July 3, 1969, to January 1, 1970.This lengthened the compensable number of weeks from 33 weeks and 3 days to 60 weeks and 3 days.The fact that the department entered an interlocutory order is not material to this appeal.

Judicial review of workmen's compensation awards made by the department is governed by sec. 102.23, Stats., which states, in relevant part:

'102.23 Judicial review.(1) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive.The order or award, . . . shall be subject to review only in the manner and upon the grounds following: . . .

'. . .

'(d) . . ., the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:

'1.That the commission acted without or in excess of its powers.

'2.That the order or award was procured by fraud.

'3.That the findings of fact by the commission do not support the order or award.'

PERMANENT PARTIAL DISABILITY.

The trial court concluded that the hearing loss was a scheduled disability under sec. 102.52(18), Stats., with 55 weeks of compensation mandated by the legislature as the benefit period for total deafness in one ear, and that the remaining 200 weeks of compensation benefits resulted from computations under the applicable statutory sections for percentages of permanent partial disability.Thus the two benefits were added together to determine the final award of 255 weeks.

The applicant argues that the scheduled benefits allowed by sec. 102.52(18), Stats., for total deafness in one ear should not be applied to him.Moreover, he contends that the department erred in failing to find him partially disabled to the extent of 40 percent of permanent total disability, in view of the testimony of an examining physician instead of 20 percent as determined by the department.

Section 102.52, Stats., 1969, provides, in pertinent part:

'In cases included in the following schedule of permanent partial disabilities indemnity shall be paid for the healing period, and in addition thereto, where the employe is 52 years of age or less, for the period specified, at the rate of 70% of the average weekly earnings of the employe, . . .'

'. . .

'(18) Total deafness of one ear from accident or sudden trauma, 55 weeks.'

According to the findings of the examiner, as affirmed by the department, the applicant sustained a compensable injury, resulting from the accident, which caused a skull fracture, loss of sense of taste and smell, facial paralysis, intermittent headaches, dizziness, and vertigo, and 100 per cent loss of hearing in his left ear.The applicant contends that the ear injury led to the other aspects of disability and, therefore, the entire range of disabilities should be considered as a whole, rather than separating the loss of hearing from the other disabilities.If this procedure were to be followed, based on an estimation of 40 percent permanent partial disability, the applicant would receive an additional period of benefits under sec. 102.44, Stats., instead of the scheduled 55 weeks of compensation provided by sec. 102.52(18), for total loss of hearing in one ear, plus compensation for 20 percent permanent partial disability under sec. 102.44 as determined by the department.

The applicant relies on this court's decision in Wagner v. Industrial Comm.(1956), 273 Wis. 553, 79 N.W.2d 264, 80 N.W.2d 456, for his contention that the scheduled benefits should not be considered applicable to him.In that case, an employee developed contact dermatitis on his hands as a result of his work as a tool and die maker in a machine shop.He was forced to quit that occupation because he could no longer use his hands for that type of work.It was contended that the inability of the claimant to use his hands for this type of work should be considered in the same category as loss of a member, and thus compensable under the scheduled rates in sec. 102.52, Stats.This court determined that, because of the permanently sensitized condition of his hands, he was precluded from employment in a machine shop or industrial plant and, therefore:

'. . . His disability is greater than that limited to his hands only and actually is one of the same category as extending to the whole body. . . .'Wagner, supra, p. 566, 79 N.W.2d p. 271.

On this basis it was concluded that the scheduled rate for loss of a member was inapplicable and that the occupational disease and its effects should be compensated with relation to an overall percentage of permanent partial disability.

The applicant herein argues that his injury, as that suffered by the claimant in Wagner, supra, was greater than merely loss of hearing.However, Wagner does not support the position of the applicant.This court specifically pointed out that the disability suffered by that claimant, rather than being a scheduled injury, was an occupational disease, bearing no relation to the schedules of sec. 102.52, Stats.In the instant case, the applicant suffered a loss specifically recognized and compensable under sec. 102.52.

If a loss is sustained which is recognized by and compensable under sec. 102.52, Stats., the schedule therein is exclusive.Sec. 102.44(4), provides in part, that:

'(4) Where the permanent disability is covered by the provisions of section(s) 102.52, . . . such section(s) shall govern; . . .'

That this language rendered exclusive the statutory schedule for certain specific losses listed in sec. 102.52, was recognized by this court in Mednicoff v. ILHR Department(1972), 54 Wis.2d 7, 14, 194 N.W.2d 670.In the instant case, the additional physical effects of deafness sustained in one ear have not been ignored by the department.They form the basis for the award of benefits of 20 percent permanent partial disability.The scheduled benefits for total loss of hearing in one ear are applicable and exclusive in this situation.

The second contention made by the applicant involves the validity of the findings made by the department.In reviewing orders of the department, this court has formulated the rule, in accordance with the statutory mandate, that findings of fact are conclusive if supported by credible evidence 'It is our conclusion the test should be whether there is any credible evidence in the record sufficient to support the finding made by the department.The assumption in that test is, of course, that the evidence is relevant, that it is evidentiary in nature and not a conclusion of law, and that it is not so completely discredited by other evidence that a court could find it incredible as a matter of law. . . .'R. T. Madden, Inc. v. ILHR Dept.(1969), 43 Wis.2d 528, 547, 169 N.W.2d 73, 82.

In a situation where the facts are not in dispute, this court has stated:

'. . . (W)hen the facts are not in dispute but permit the drawing of different inferences, the drawing of one of such permissible inferences by the department is an act of fact finding and the inference so derived constitutes an ultimate fact upon which a conclusion of law may rest. . . .'Christnacht v. ILHR Department(1975), 68 Wis.2d 445, 451, 228 N.W.2d 690, 694.

However, if no conflicting inferences could be drawn from undisputed facts, then the determination is a matter of law.Neese v. State Medical Society(1967), 36 Wis.2d 497, 153 N.W.2d 552.See also, Comment, Judicial Review of Workmen's Compensation Cases, 1973, Wis. LawRev. 576.

Certain additional facts are pertinent to this issue.The applicant was treated...