Wacker v. Indus. Comm'n

• Decision Date: 12 April 1946
• Citation: 248 Wis. 315,21 N.W.2d 715
• Parties: WACKER v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

248 Wis. 315

21 N.W.2d 715

WACKER

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 15, 1946.

Rehearing Denied April 12, 1946.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action commenced by Florence Wacker, plaintiff, on the 6th day of November, 1944, against John Ernst, d/b/a Superior Body & Painting Company, Car and General Insurance Corporation, Ltd., and the Industrial Commission of Wisconsin, defendants, to vacate findings and an order of the Industrial Commission.

Plaintiff appeals from a judgment in favor of the defendants and against plaintiff, entered on the 26th day of June, 1945, confirming the findings and order of the Industrial Commission which set aside an agreed statement of facts entered into between the parties and the award of the Industrial Commission based thereon.

L. A. Tarrell, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Hannan, Johnson & Goldschmidt, of Milwaukee, for respondents John Ernst and others.

MARTIN, Justice.

Raymond Wacker, husband of the plaintiff, was accidentally killed on September 19, 1943, while driving an automobile owned by his employer. A report of the accident was made by the employer to the Industrial Commission. Correspondence was had between the Industrial Commission, the employer, the insurance carrier, and the widow, with the result that on October 25, 1943, a stipulation of facts and a request for an award to be based thereon was filed by the widow and the insurance carrier of the employer. The stipulation, in part, provides: ‘It is agreed and stipulated that on September 19th, 1943, the respondent, John W. Ernst d/b/a Superior Body & Painting Company, and one Raymond Wacker were both subject to the provisions of the workmen's compensation act of Wisconsin; that on said day the said Raymond Wacker was in the employ of the said respondent, and that while performing services growing out of and incidental to his employment, he accidentally sustained personal injury which resulted in his death on September 19th, 1943; that the injury and death of said employee were proximately caused by accident and not intentionally self-inflicted.’

Based on the facts stipulated, an award directing the payment of a death benefit to the widow was entered on November 2, 1943. Compensation was paid in accordance with the award and no petition to review it was filed with the Industrial Commission until March 13, 1944, on which date an application to set aside the stipulation of facts and the award was filed with the commission by the employer and insurance carrier. A hearing was scheduled for May 4, 1944, at which plaintiff appeared and objected to the jurisdiction of the commission to take any testimony or any proceedings. A second hearing was held on September 15, 1944, and testimony was taken. After this hearing the commission found that at the time of his fatal injury Raymond Wacker ‘was performing no service in the course of his employment and was, therefore, outside of the scope of said employment.’

Findings of fact and an order setting aside the agreed statement of facts, and the order and award based thereon, were entered by the examiner on September 19, 1944. A petition to review the examiner's decision was filed with the commission and on October 19, 1944, the commission entered its order affirming the decision of the examiner.

Appellant contends: (1) That the Industrial Commission had no authority to set aside the agreed statement of facts filed with the commission for the purpose of an award; (2) that the Industrial Commission was without jurisdiction to entertain the petition to set aside the agreed statement of facts and the award based thereon several months after the award had been entered. The respondent Industrial Commission states the question involved thus: ‘Where an order is entered on a stipulation of settlement in which the word ‘compromise’ does not appear, may the industrial commission, under the provisions of sec. 102.16(1), Stats., on application of the employer and insurance carrier, set aside such order more than twenty days after the date of such order?'

Sec. 102.16(1) provides: ‘Any controversy concerning compensation, including any in which the state may be a party, shall be submitted to said commission in the manner and with the effect provided in this chapter. Every compromise of any claim for compensation may be reviewed and set aside, modified or confirmed by the commission within one year from the date such compromsie is filed with the commission, or from the date an award has been entered, based thereon, or the commission may take such action upon application made within such year. Unless the word ‘compromise’ appears in a stipulation of settlement, the settlement shall not be deemed a compromise, and further claim shall not be barred except as provided in section 102.17(4) irrespective of whether award is made.'

The last sentence was added to sec. 102.16(1) by sec. 11, ch. 270, Laws of 1943, and became effective on June 9, 1943. Sec. 102.17(4) provides: ‘The right of an employe, his legal representative or dependent to proceed under this section shall not extend beyond six years from the date of the injury or death or from the date that compensation (other than medical treatment or burial...