Wichman v. Indus. Comm'n

• Decision Date: 04 February 1941
• Parties: WICHMAN v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

237 Wis. 13

296 N.W. 78

WICHMAN

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 4, 1941.

Appeal from an order of the Circuit Court for Dane County; A. C. Hoppmann, Judge.

Affirmed.

Action begun September 9, 1939, by Otto Wichman against the Industrial Commission, Town of Niagara, Marinette County, and the Wisconsin Conservation Commission to review the action of the Industrial Commission in dismissing plaintiff's application for compensation for permanent partial disability. From an order dismissing the action, plaintiff appeals.

While engaged in work for the Wisconsin Conservation Commission to improve a trail in the Town of Niagara, Marinette County, plaintiff sustained an injury. Claim for compensation was duly made, but on July 31, 1939, after a hearing, the Industrial Commission examiner entered an order dismissing the claim. The plaintiff received a copy of the findings and award on August 2, 1939. A petition to review was filed with the commission on August 23, 1939, and the commission wrote the attorney for plaintiff that since the petition to review was not filed within twenty days after receipt by the petitioner of the examiner's findings and order, the commission was “without power to review the examiner's order and the order as made becomes the order of the commission as a body.”

Cain & Farley and Joseph E. Tierney, all of Milwaukee, for appellant.

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

Lecher, Michael, Whyte & Spohn, of Milwaukee (Thomas S. Stone, of Milwaukee, of counsel), as amici curiae.

FAIRCHILD, Justice.

Review of the Industrial Commission's orders or awards may be had in those instances and in the manner provided by statute. The statute in force at the time this review was sought provided that an action would lie to review an order or award “originally made by the commission as a body” and in one other instance, namely, when the order or award is made by the commission “following the filing of petition for review” under sec. 102.18(3), Stats. In the case at bar the petition for review was not timely under sec. 102.18(3), Stats., and because of this there was no right to a review. The order of the examiner thus became a nonreviewable decision under the statutes. This appears from a comparison of the section before and after the amendment. Before the amendment made by Ch. 261, Laws of 1939, effective July 20, 1939, sec. 102.23(1), Stats., read: “Within thirty days from the date of the order or award of the commission as a body any party aggrieved thereby may commence *** an action.”

After the amendment that section read: “Within thirty days from the date of an order or award originally made by the commission as a body or following the filing of petition for review with the commission under section 102.18 any party...