180 Wis. 334 | Wis. | 1923
Lead Opinion
While in the employ of the plaintiff the defendant Frank Goetsch received a blow on his head resulting in a venous hemorrhage of the brain. No written notice of the injury was served upon the employer, and upon the former appeal (172 Wis. 548, 179 N. W. 740) this court held that actual knowledge of the injury by a foreman of the employer, but not communicated to the employer, was not equivalent to the statutory notice. In the Commission’s memorandum of December 17, 1921, this ruling is vigorously assailed, resulting in a conclusion that by reason of the actual knowledge of the injury by the foreman not communicated to the employer the latter is estopped from claiming that he has been misled. This conclusion is in direct conflict with our former, decision, to which we adhere, because we held the foreman’s knowledge did not take the place of the statutory written notice, and the case was sent back with directions to the Commission to find as a fact whether or not the employer was misled by reason of a failure to give the statutory notice, but not to find or to conclude that the equivalent of a statutory notice was given.
The only ground upon which the plaintiff claims it was misled by failure to get the written notice is that it was prevented from offering competent medical aid at an early stage, which, it is claimed, if given, would either entirely
As to this claim the Commission says: “It is perhaps possible that respondent might have given some surgical attendance that would have reduced the disability materially. Applicant, however, had the advice and attendance of his family physician and might, within his right, have denied to respondent’s physicians the opportunity to treat him either medically or surgically, or to do other than examine him.” In another part of the memorandum it is stated that “there was no misleading of the employer because of the lack of written notice unless it be predicated on the loss of opportunity to observe the case and have treatment rendered by surgeons alleged to- be more skilled. This we do not think constitutes a misleading within the purview of the statutes.” It seems rather strange that the Commission should have reached the conclusion that an employer could not be misled by a lack of opportunity to examine and observe the employee when the statute, sec. 2394 — 12, provides, that a refusal by the employee to submit to examination or in any way obstruct the same shall suspend his right to begin or maintain any proceedings for the collection of compensation. Here is by the plainest inference a direct legislative declaration that the right to examine is of such value that a refusal shall suspend the right to compensation. It is also obvious that the right to examine has a direct bearing upon the nature, extent, and curability of the injury — matters usually in dispute in such cases. But it is enough for us to say thatthe legislature has considered such right of examination of value, and it does not come within the power of the Commission to declare otherwise. '• It was inferentially held in Vasey v. Industrial Comm. 167 Wis. 479, 167 N. W. 823, that a failure to give notice might mislead the employer because of lack of opportunity to offer medical aid.
It will be seen, therefore, that the Commission reached its
The finding that there was no intention to mislead is founded upon a correct view of the law and upon sufficient evidence to sustain it.
We are asked by the appellants, in case the award is set aside, not to send the record back to the Commission for a finding, but to make the finding ourselves. This we cannot do. Secs. 2394 — 19 and 2394 — 20 contemplate that all find'ngs of fact must be made by the Commission, and if findings are lacking the record must be sent back to it for such further findings as the court directs to be made.
By the Court. — Judgment reversed, and cause remanded to the circuit court with directions to set aside the' award and to remand the record to the Industrial Commission with directions to make a finding upon the question whether or not the employer was misled by the failure to give the written notice. No costs to be taxed by either party, b ■
Dissenting Opinion
(dissenting). This case presents a serial story involving a tragedy for the victim of a work accident. It is a story of the law’s delays, in which it seems to me that technicality has been exalted through a process of metaphysical reasoning to reach a nicety of distinction that is impractical and impossible in administration and contrary to the legislative intent. It works injustice and violates the principles and purposes of the compensation act.
Goetsch gave his employer no written notice of the injury within thirty days, for two reasons: he did not realize the nature of his ailment; he did not know the requirement of the law as to notice.
Goetsch was injured June 16, 1917, and made claim for compensation April 24, 1918. In the meantime he had been treated by his family physician and examined by a doctor representing the carpenters’ union to which Goetsch belonged. The Industrial Commission heard the claim, the Hartford Accident & Indemnity Company, insurer, defending for the employer, beginning May 23, 1918, and concluding January 24, 1919. The Commission entered its findings and award May 24, 1919. It found that “no written notice of the accident and claim was given within the thirty days fixed by statute, but the respondent [the employer] had immediate actual notice of such injury, and the failure of the applicant to give written notice was without intent on his part to mislead the respondent, and the respondent was not in fact misled thereby.” July 19, 1919, the employer, through its insurance carrier, brought an ac
“The failure to give any such notice . . . shall not be a bar to recovery . . . if it is found as a fact . .. . that there was no intention to mislead the employer, and that he was not in fact misled thereby.”
So the case went back to the circuit court, where the judgment was vacated and the records returned to the Commission. Evidently the Commission was nonplussed. It wrote a memorandum, in which it explained why there was no misleading of the employer by failure to give written notice, in these words:
“There was no misleading of the employer because of the lack of written notice, unless it be predicated on the loss*341 of opportunity to observe the case and have treatment rendered by surgeons alleged to be more skilled. This we do not think constitutes a misleading within the purview of the statutes.”
The Commission made new findings of fact. January 5, 1922, in which it again found “that the applicant failed to give written notice of his injury and claim.; that.such failure was without intent on his part to mislead the employer and the employer was not in fact misled thereby.” Again the case was taken to the circuit court for review, and on December 23, 1922, the circuit court, by Judge Thompson, in a clear and able opinion, sustained the award of the Commission. Again the case was appealed to this court, where in due course it came up for decision, and on April 3. 1923, this court again reversed the judgment of the lower court and directed that the cause be remanded with instructions to the Commission “to make a finding upon the question whether or not the employer was misled by failure to give the written notice.” Again we call attention to the fact that the Commission has already twice found “that the employer was not in fact misled thereby.”
The court evidently thought the Commission was contumacious in its memorandum. I do not so regard the action of the Commission. The Commission labored too industriously, perhaps, to make plain its position, which is misunderstood here. To me the court’s opinion is the more confusing. The court cites sec. 2394 — 12, Stats., to show that the employer may have been misled because the legislature there provided for an examination of the injured man from time to time upon written request, and suspending compensation in case of refusal. The statute has no application in case whatever. The employer never made such a request and the injured man never refused such a request. It is too plain for dispute that the workman did'not realize the cause of his ailment until some nine months after the accident. For. this reason he did not and could not give
It will not do to twist sec. 2394 — 12 from its fundamental purpose in order to deny the injured man compensation. The intent of the statute is too plain for construction. The purpose of the statute as to notice is equally obvious. It has the same purpose as the statute requiring notice within two years of a claim for personal injury under a common-law action (sub. (5), sec. 4222, Stats.), or the notice required in one year in actions against railroad companies for injuries to property (sec. 1816&, Stats.). The danger of loss to workmen by the unusually short limitation of thirty days
But whatever is the construction of the statutes there should be an end of this protracted proceeding. Sec. 3072m, Stats., is designed to bring about this very desirable purpose.
I cannot see how the mandate of the court to send this case back for another round of argument, appeals, and dilatory proceedings can be justified. For nearly six years a workman has been a helpless invalid as a result of an industrial accident under the compensation act.' For five years his claim has been shuffled back and forth in a maze of legal intricacies, and the end is nowhere in sight. I believe the law’s delay is being made an instrument of oppression and injustice in this case.
For the reasons stated I respectfully dissent.