Works v. Koepsel

• Decision Date: 10 February 1931
• Citation: 204 Wis. 493,234 N.W. 756
• Parties: ACME BODY WORKS ET AL. v. KOEPSEL ET AL.
• Court: Wisconsin Supreme Court

204 Wis. 493

234 N.W. 756

ACME BODY WORKS ET AL.

v.KOEPSEL ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1931.

Appeal from a judgment of the Circuit Court for Dane County; A. C. Hoppmann, Circuit Judge. Affirmed.

Action by Acme Body Works and the Travelers' Insurance Company, plaintiffs, commenced October 11, 1929, against Herman Koepsel Greunke Grading Company, United States Fidelity & Guaranty Company, J. M. Braun, L. H. Keller, G. J. Keller, and Industrial Commission of Wisconsin, defendants, to set aside an award of the Industrial Commission. From a judgment entered on the 27th day of June, 1930, confirming the award, the plaintiffs Acme Body Works and the Travelers' Insurance Company appeal.Olin & Butler and B. H. Stebbins, all of Madison, for appellants.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and L. Hugo Keller, of Appleton, for respondents.

OWEN, J.

The Industrial Commission made an award of compensation in favor of Herman Koepsel and against the Acme Body Works and its insurance carrier, the Travelers' Insurance Company. The injury for which the award was made was industrial blindness of the left eye, which the Industrial Commission found to have resulted from an injury to the eye sustained by Koepsel while in the employ of the Acme Body Works June 23, 1920. It is contended by the appellants that the evidence does not support the finding that the industrialblindness resulted from the injury which it is admitted was sustained by Koepsel while in the employ of the Acme Body Works in June, 1920.

It appears that on June 23, 1920, when Koepsel was in the employ of the Acme Body Works, he was struck in the left eye by a knot while operating a saw. He returned to work July 28, 1920, receiving compensation for temporary total disability during the intervening period. He was fitted with glasses by Dr. Rector, May 18, 1921, who found no cataract at that time, but did discover congenital stigmatism in both eyes. July 12, 1926, while working for the Greunke Grading Company, a particle of stone or steel struck his left eye. July 18, 1926, he went to Dr. Brooks, who removed a foreign substance from the eye and found a cataract causing industrial blindness of the eye. December 22, 1926, Koepsel filed an application for compensation against the Greunke Grading Company, claiming that the injury of July 12, 1926, had resulted in the loss of sight in his left eye. After taking evidence at a couple of hearings, the Industrial Commission made the Acme Body Works and its insurance carrier, the Travelers' Insurance Company, parties to that proceeding. Thereafter other hearings were held and more evidence was taken, resulting in a finding of the Industrial Commission that the blindness of the eye was due to the first injury received by Koepsel while in the employ of the Acme Body Works June 23, 1920. It is claimed that this finding is not supported by the evidence.

[1] While it is tacitly conceded that the evidence discloses a possibility that the injury was due to the accident of 1920, it is earnestly contended that it does not rise to the dignity of a probability that it was the result of that accident. The evidence is necessarily expert in character. There is no dispute but that the present condition of the eye is due to a cataract. There is agreement on the part of all the experts that a cataract may be congenital, senile, or traumatic. There is no difference among the experts upon the proposition that this cataract is traumatic in character. There is no evidence that the claimant sustained any injury to his eye except the one in 1920 and the one in 1926. It appears from the testimony that the formation of a cataract on June 18, 1926, is an unusual result from either the injury of 1920 or that of July 12, 1926. However, so far as the evidence reveals, it seems clear that we have here, first, a traumatic cataract, and, second, that it must have resulted from one injury or the other. The experts seemingly agree that the condition of claimant's eye could not have resulted from the 1926 injury. The period intervening between that injury and the discovery of the cataract did not allow a sufficient time for its formation. We find quite complete accord in the evidence of the experts for eliminating the injury of 1926 as the cause of the cataract. While there is greater difference between the experts as to whether the cataract could have resulted from the injury of 1920, we think there is sufficient in the evidence to show that the injury of 1920 was the cause of the cataract, producing claimant's industrial blindness.

[2] The cause and origin of disease is often obscure and elusive. It is not subject to exact and definite proof comparable to physical facts. Unless a determination of such questions can rest on a preponderance of probabilities, justice must often be defeated. With reference to a germ disease this court has said: “It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed, and concerning which witnesses can acquire positive knowledge. Under such circumstances the Industrial Commission or the court can base its findings upon a preponderance of probabilities or of the inferences that may be drawn from established facts.” Pfister & Vogel L. Co. v. Industrial Commission, 194 Wis. 131, 134, 215 N. W. 815; citing Vilter Mfg. Co. v. Industrial Commission, 192 Wis. 362, 212 N. W. 641, 57 A. L. R. 627. See, also, Hafemann v. Seymer, 195 Wis. 625, 219 N. W. 375. This rule is applicable here. The evidence eliminates everything except the injury of 1920 as a cause of the cataract. While the result is unusual, it is not impossible. We have, therefore, a cataract due to some injury. The only injury...