Volunteers of America of Madison, Inc. v. Industrial Commission
| Citation | 141 N.W.2d 890,30 Wis.2d 607 |
| Parties | VOLUNTEERS OF AMERICA OF MADISON, INC., et al., Respondents, v. INDUSTRIAL COMMISSION and State of Wisconsin, Appellants. |
| Decision Date | 10 May 1966 |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., Gordon Samuelsen, Asst. Atty. Gen., Madison, for appellants.
Aberg, Bell, Blake & Metzner, Gerald J. Bloch, Madison, for respondents.
This appeal presents an interesting question of statutory interpretation. The statute in question is sec. 102.08, Stats., which provides:
The issue is whether this statute bars an epileptic, or those claiming through him, from recovery of workmen's compensation for accidental injury or death benefits when he knowingly has misrepresented to his employer that he is not subject to epileptic seizures, and his epilepsy is a material factor in causing the accident. The circuit court held that under such circumstances the statute does bar recovery.
Our court is committed to the 'positional risk' or 'increased hazard' doctrine in determining whether an accidental injury to an employee 'arises out of his employment' within the meaning of the Wisconsin Workmen's Compensation Act. 1 Therefore, absent sec. 102.08, Stats., the fact that an epileptic seizure may have caused the employee Cusic to have fallen out of the canoe in an unconscious state which resulted in his drowning would not have barred the workmen's compensation death benefit. This result follows because Cusic's employment placed him in a hazardous position over water and his resultant death by drowning arose out of this hazardous position. Therefore, only by the application of sec. 102.08 can appellants avoid payment of the death benefit.
There appears to be no past decision of this or any other court which is directly in point on the effect such statute has where there has been a knowing false representation by the employee that he is free of an ailment or physical defect described in sec. 102.08, Stats.
Two two decisions of other courts which are probably closest in point where reasoning by analogy is resorted to are Martin Company v. Carpenter 2 and Air Mod Corporation v. Newton. 3 Both these cases involved 'second injury fund' statutes. 4 These statutes, although by different procedures, provided that where an employee had sustained a previous permanent injury and then during the course of employment sustained a subsequent injury, the employer would only be liable for that amount of workmen's compensation as would have been due for such subsequent injury, without regard to the effect of the prior injury. The statutes further provided that, if the combination of the prior injury and the subsequent injury resulted in total disability, the fund would pay all compensation for total disability in excess of that allowed for the subsequent injury when considered by itself.
In Martin Company v. Carpenter 5 a female employee filed a claim for workmen's compensation for a back injury alleged to have occurred while at work for her employer, the Martin Company. When she had been hired by this employer the year before, she signed a document entitled 'Physical Examination Record' which contained questions she had answered. One of these questions asked if she had ever been subject to various diseases and infirmities including 'Back Injuries.' She had answered this question 'No.' The Florida court denied recovery on the grounds (1) that no 'accident' had occurred at work causing the injury, and (2) that when claimant procured employment she had fraudulently failed to note a 20-year history of back trouble. The court based its decision with respect to ground (2) on the bases that such a misrepresentation (a) robs the employer of the choice of whether he will hire the employee with the disability and (b) probably prevents the employer from resorting to the special 'second injury fund' statute. As noted by the court, that statute encourages employers to hire those afflicted or disabled in some way. It thus manifests the same legislative intent as sec. 102.08, Wis.Stats. The Florida court concluded by adopting the rule that:
'* * * a false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen's Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer.' 6
The claimant in Air Mod Corporation v. Newton 7 sought workmen's compensation benefits for a back injury when he slipped at work. The evidence disclosed that claimant had undergone surgery for back trouble in the year prior to his employment, yet when procuring employmene he answered in the negative a questionaire inquiring whether he had any 'physical defect' or had been confined by illness in the past year. In its opinion the Delaware court noted the Delaware 'second injury fund' statute and pointed out that claimant's misrepresentation would prevent the employer from resorting to that statute. The court then concluded that an employee would forfeit his rights to workmen's compensation benefits if:
'* * * in applying for employment, the employee (1) knowingly and wilfully made a false representation as to his physical condition; and (2) the employer relied upon the false representation and such reliance was a substantial factor in the hiring; and (3) there was a causal connection between the false representation and the injury.' 8
The United States supreme court has recently held in Still v. Norfolk & Western R. Co. 9 that false representations by an employee with respect to his physical condition at time of hiring will not bar recovery under the Federal Employers' Liability Act (F.E.L.A.) from the employer railroad for accidental injury, even though the very physical defects fraudulently concealed contributed to the injury and the employer would not have hired him if it had known of their existence. The rationale of this holding is that the legislative policy embodied in the F.E.L.A. is that 'a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties * * *.' 10 (Emphasis supplied.)
We do not consider the holding in the Still Case persuasive in the instant case. Here we have an entirely...
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