220 Wis. 665 | Wis. | 1936
The action was commenced to vacate an award of the Industrial Commission of death benefits to the widow of an employee of the plaintiff company who* died from tuberculosis found by the commission to have resulted from silicosis sustained while in the employment of the company. The circuit court confirmed the award.
The appellants claim that there is no evidence to support the findings of the commission, (1) of notice to the employer that the employee was afflicted with silicosis, and (2) no evidence to support the finding that he was so afflicted.
(1) The employee died January 2, 1929. His last date of employment was December 28, 1928. He had been in the employ of the appellant company several years and exposed to silica dust during the whole period. On March 6, 1928, the employee was examined by a company doctor at
Sec. 102.12, Stats. 1927, which governed the matter of notice at the time of the employee’s examination, provided that a notice in writing be given to the employer within thirty days from the time the injury upon which claim for compensation was based was received, but also provided that recovery should not be barred if within the thirty-day period actual notice of the injury was given to the employer. The injury involved in the instant case was presence of silicosis. The “actual notice” as distinguished from the “written notice” of the statute “may exist where the employer is given possession of facts which show him to be conscious of having the means of knowledge although he does not use them.” Seaman Body Corp. v. Industrial Comm. 209 Wis. 321, 326, 245 N. W. 68. “In case of disability, which is the result of an occupational disease, suffered because of working under conditions which are well known to result commonly in such disease, sufficient actual notice of injury may be inferred under such facts and circumstances as existed in Zurich Gen. Acc. & L. Ins. Co. v. Industrial Comm. 203 Wis. 135, 146, 147, 233 N. W. 772.” Van Domelon v. Industrial Comm. 212 Wis. 22, 249 N. W. 60. There is no question that the company on March 9, 1928, had knowledge, and therefore notice, of the actual condition of the defendant that caused his death on January 2, 1929, The com
“It is a matter of common knowledge that such [dusty] occupations give rise to lung troubles, and that a continued exposure increases the difficulty and greatly diminishes the chances of recovery.”
This common knowledge is imputed to the company. The company surmised that the condition of the deceased was due to his work because they told their doctor, who examined him at their request and their expense, to treat him if necessary. In the Zurich Case, a request by the employee that he be given work where he would not be subjected to dust, in connection with knowledge of the employer of the nature of the employee’s work, was held to constitute sufficient notice under the statute involved. The inference of the “actual notice” required by the statute seems to be as well supported in the instant case, as was the like inference in the Zurich Case. The correctness of this view, of course, rests upon the hypothesis, here assumed as the fact, that the tuberculosis with which the employee was afflicted in March was caused by silicosis. Whether that assumption is proper depends upon whether the finding of the commission that it was so caused has support in the evidence, which is involved in appellant’s second assignment of error.
(2) The fact here involved rests upon the testimony of Dr. Schlomovitz that in his opinion the deceased “had advanced silicosis, complicated by tuberculosis finally terminating in characteristic heart failure,” and the partially corroborating statements of the other physicians who testified to the effect that, while they could not from the X-ray skia-graphs taken at the time of the employee’s physical examination say definitely that silicosis then existed, nodules indi
By the Court. — The judgment of the circuit court is affirmed.