Wagner v. Industrial Commission

• Decision Date: 07 January 1957
• Citation: 273 Wis. 553,80 N.W.2d 456
• Parties: Fred WAGNER, Appellant, v. INDUSTRIAL COMMISSION and Ampco Metal, Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 456

80 N.W.2d 456

273 Wis. 553

Fred WAGNER, Appellant, v. INDUSTRIAL COMMISSION and Ampco Metal, Inc., et al., Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1957.

Fairchild, Charne & Kops, Milwaukee, Irvin B. Charne, Milwaukee, of counsel, for appellant.

Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., Quarles, Spence & Quarles, Milwaukee, Norman C. Skogstad, Milwaukee, Walter P. Rynkiewicz, Milwaukee, of counsel, for respondents.

Toebaas, Hart, Kraege & Jackman, Madison, Padway, Goldberg & Previant, Milwaukee, Albert J. Goldberg, Milwaukee, Hugh Hafer, Milwaukee, of counsel, amici curiae.

CURRIE, Justice.

The briefs filed in support of respondents' motions for rehearing contend that permanent partial disability must be determined on the basis of body loss, not wage loss. The governing statute is sec. 102.44(3), Stats., which reads as follows:

'For permanent partial disability not covered by the provisions of sections 102.52 to 102.56 the aggregate number of weeks of indemnity shall bear such relation to the number of weeks set out in paragraphs (a) and (b) as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of 70 per cent of the average weekly earnings of the employe to be computed as provided in section 102.11. Such weekly indemnity shall be in addition to compensation for healing period and shall be for the period that he may live, not to exceed, however, these named limitations, to wit:

'(a) One thousand weeks for all persons 50 years of age or less.

'(b) For each successive yearly age group, beginning with 51 years, the maximum limitation shall be reduced by 2 1/2 per cent per year, with no reduction in excess of 50 per cent.'

The case of Northern States Power Co. v. Industrial Comm., 1947, 252 Wis. 70, 30 N.W.2d 217, is cited in support of such contention. That case involved an injury sustained as a result of accident, and not, as in the instant case, disability caused by occupational disease. This distinction would be immaterial if we were dealing with a scheduled or relative disability covered by secs. 102.52 and 102.55, Stats. Green Bay Drop Forge Co. v. Industrial Comm., 1953, 265 Wis. 38, 60 N.W.2d 409, 61 N.W.2d 847. Whether such distinction is material as to a case of permanent partial disability due to occupational disease bearing no relation to the schedules of sec. 102.52 is an issue which confronts us here.

In the Northern States Power Co. case the employee sustained an injury in the nature of a protruded intervertebral disc while lifting a refrigerator during a demonstration to a customer, for which he was operated upon. Based upon medical testimony that he had sustained a 10 to 15 per cent permanent disability due to loss of motion in the spine, the commission determined his permanent partial disability at 12 1/2 per cent and its award of compensation was affirmed on review by the circuit court. On appeal, the employer and his insurance carrier contended that, because the employee's earnings were as high, or higher, after the ending of the healing period, as they were at the time of the accident, he had sustained no permanent partial disability within the meaning of sec. 102.44(3), Stats. This court, in an opinion written by Mr. Justice Wickhem, held that prior to the 1923 amendments to the Workmen's Compensation Act, establishing schedule and relative disabilities, permanent partial disability was measured by wage loss, but that, by reason of such amendments, permanent partial disability is now measured by body impairment and not wage loss. We quote from the opinion as follows, 252 Wis. at page 76, 30 N.W.2d at page 220:

'During the healing period it is possible to establish a wage loss because that is a past event. But since an award for permanent disability is no be made for all time at tne end of this period it must be based upon some sort of prediction as to impairment of earning capacity. It appears to us that the legislature has specifically chosen in the case of non-schedule permanent partial disabilities the method of comparing the severity of the injuries causing such a disability with those causing permanent total disability. We see no other construction that will give meaning to section 102.44(3).'

In the case of a nonschedule or relative injury due to industrial accident, such as was involved in the Northern States Power Co. case, it is possible for a physician to examine the injured employee, after the healing period has been completed, to determine whether there has been any...