Wagner v. Industrial Commission

• Decision Date: 07 November 1956
• Citation: 273 Wis. 553,79 N.W.2d 264
• Parties: Fred WAGNER, Appellant, v. INDUSTRIAL COMMISSION and Ampco Metal, Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 264

79 N.W.2d 264

273 Wis. 553

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

Supreme Court of Wisconsin.

Nov. 7, 1956.

Amended on Rehearing Jan. 7, 1957.

See 80 N.W.2d 456.

Fairchild, Charne & Kops, Milwaukee, for appellant.

Vernon W. Thomson, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for Industrial Commission.

Quarles, Spence & Quarles, Milwaukee, for Ampco and Hardware Mutual (Norman C. Skogstad, Milwaukee, and Walter P. Rynkiewicz, Sheboygan, of counsel.)

CURRIE, Justice.

The employee Wagner raises the following contentions on this appeal:

(1) That the evidence requires a finding that the temporary partial disability sustained by Wagner during the period from December 10, 1951 through August 15, 1952, was greater than 33 1/2 per cent. (2) That October 2, 1951, should have been determined as the date of injury rather than April 6, 1951, for all disability occurring subsequent to October 2, 1951.

(3) That the evidence requires a finding that Wagner did sustain permanent disability as a result of his employment by Ampco and that the finding to the contrary is without support in the evidence.

With respect to the first contention raised, Dr. Ruch testified that Wagner's dermatitis was 80 per cent healed as of December 7, 1951, and that the total disability should end December 10, 1951. Wagner was actually engaged in farming during the winter of 1951-1952, milking cows, doing the feeding, and cleaning the barns. He was able to do the spring plowing and the greater share of the field work. Wagner testified that in April, 1952, the only form of work he did not do was the evening milking which was done by his children, but while they did such milking he was working in the fields. Both Dr. Epstein and Dr. Rowe were of the opinion that Wagner's hands were completely healed by August, 1952.

It is true that there is a complete lack of any testimony fixing Wagner's temporary, partial disability from December 10, 1951 to August 15, 1952, at 33 1/3 per cent. However, the burden of proof on this issue is upon the employee and not the employer. Wagner failed to establish by credible evidence that his temporary partial disability during the period in question was greater than 33 1/3 per cent.

Counsel for Wagner contend that from a wage loss basis such temporary partial disability was established at more than 33 1/3 per cent. The issue of wage loss is treated in that part of this opinion dealing with the problem of permanent disability. Only if it should develop that there is permanent disability in excess of 33 1/3 per cent should the commission's finding with respect to the percentage of temporary partial disability be disturbed. Obviously the percentage of temporary partial disability cannot be less than the percentage of permanent disability.

We turn now to Wagner's second contention, that October 2, 1951, should be determined as the date of injury as to all disability occurring subsequent to that date. The 1951 legislature increased the maximum wage rate upon which compensation is to be based by enacting ch. 382, Laws of 1951, effective July 1, 1951, which amended sec. 102.11(1), Stats. By the commission fixing the date of injury as being April 6, 1951, none of Wagner's compensation for temporary disability was based upon the increased maximum wage rate established by this 1951 amendment.

The material statutes necessary to be considered are sec. 102.01, Stats.1949, ¹ and sec. 102.03, Stats.1949. ² While sec. 102.01(2), Stats.1949, provided that in case of occupational disease the date of injury is the last day of work for the last employer whose employment caused disability, such provision applies only when the wage loss occurs after the termination of employment, and, where there is wage loss from the occupational disease before the termination of employment, the date of the commencement of such wage loss establishes the date of injury. General A. F. & L. Assur. Corp. v. Industrial Comm., 1936, 221 Wis. 540, 543, 266 N.W. 224, and Green Bay Drop Forge Co. v. Industrial Comm. 1953, 265 Wis. 38, 47-48, 60 N.W.2d 409, 61 N.W.2d 847. The reason for this, as explained in the opinions in such two cited cases, is because the 1933 amendment to sec. 102.01(2), Stats., which defines date of injury with respect to disabling occupational disease, was intended to render compensable any disability from occupational disease occurring after the employment causing the same had been terminated. Such 1933 amendment was not intended to change the prior rule established by court decision for determination of date of injury with respect to disabling occupational disease where wage loss had actually occurred prior to termination of employment, or in situations where the employment had not ended.

Thus in the instant case Wagner had actually sustained a wage loss in April, 1951, before his employment with Ampco finally terminated on October 2, 1951, and the commission properly found April 6, 1951, to have been the date of injury. While sec. 102.03(3), Stats.1949, provided that intermittent periods of temporary disability shall create separate claims, it did not provide that each of such intermittent periods shall have its own separate date of injury. We deem that the record in the instant case establishes that Wagner's dermatitis was not completely cured on the three occasions he returned to work at Ampco between April 6th and October 2, 1951. In other words, while there were four intermittent periods of partial disability they were all due to one continuous occupational disease that assumed its disabling character in April, 1951. We, therefore, conclude that there is credible evidence to support the finding of the commission that April 6, 1951, was the date of injury applicable to all periods of temporary partial disability sustained by Wagner.

The last and most serious issue facing us on this appeal is whether the evidence requires a finding that Wagner sustained some percentage of permanent total disability from occupational disease as a result of his employment by Ampco. The medical testimony is undisputed that he can never again safely resume work in a machine shop or other industrial plant because the skin on his fingers and hands has become so sensitized that he would develop dermatitis if he were again to attempt such work. His basic wage rate as of April 6, 1951, as a tool and die maker in Ampco's machine shop, was $1.89 per hour. This type of employment is hereafter barred to him, leaving him the option of either farming or doing common labor.

Dr. Ruch testified that Wagner's skin had become highly sensitized and that he adhered to his original diagnosis of 'occupational contact dermatitis' due to his contacts at Ampco. Dr. Rowe testified that it was the opinion of both Dr. Epstein and himself that Wagner became sensitized during his employment by Ampco. Dr. Kalb in his testimony did not deny that Wagner's skin had become highly sensitized due to contact with some irritant and his testimony in no way contradicts the opinion of Drs. Ruch, Rowe and Epstein in that respect.

The point on which Dr. Kalb disagreed with the opinions of these other three physicians was the source of the irritant which caused the dermatitis. For the reason that when Dr. Kalb was consulted by Wagner late in 1950, Wagner in cold weather had been milking cows, scalding milking utensils, and washing cows' udders with 'B-K' on his little Hales Corners farm, and also because of other reasons enumerated by the doctor, it was Dr. Kalb's opinion that Wagner's dermatitis was 'not essentially industrial in nature'. The commission, however, rejected this opinion of Dr. Kalb when it expressly found that Wagner's contact dermatitis was due to his employment by Ampco. Inasmuch as Dr. Kalb expressed no opinion bearing on the issue of permanent disability we do not consider that his testimony has any bearing whatever on that issue.

The reason assigned by the commission in its memorandum opinion for denying permanent disability was 'that whatever disability he may have had or may have henceforth will be due to original sensitivity not increased or such as to render him more susceptible by injury in respondent's [Ampco's] employ'. (Italics supplied.) We have searched the record in vain to find any evidence to support such determination that any further disability of Wagner was due to original sensitivity not increased by injury in Ampco's employ. The inference is inescapable that the commission must have based such finding on something in its past experience rather than any evidence in the record. In Merton Lumber Co. v. Industrial Comm., 1951, 260 Wis. 109, 50 N.W.2d 42, 46, when confronted with a similar situation, this court stated:

'Counsel for the commission suggests that the knowledge and experience of the commission must be given consideration. We gladly concede it and hope to give it in all proper cases. But while such knowledge and experience is of great value in the appraisal of evidence it is by no...