216 Wis. 615 | Wis. | 1935
This appeal involves principally the question as to which of the two compensation insurance carriers, who are parties to this action, is liable for compensation to the defendant, Gottfried Schmoller, as an employee of the plaintiff, Glancy Malleable Iron Company (hereinafter called the Glancy Company). From January, 1901, to May, 1933, Schmoller was in the employment of that company. Its insurance against liability for workmen’s compensation was carried by the defendant, Employers Mutual Liability Insurance Company (hereinafter called the Employers Company), at all times material to the issues herein, prior to April 1, 1931, and also subsequent to April 1, 1933; and by the plaintiff, Travelers Insurance Company, for the interval between those dates. For the first twenty-nine years of Schmoller’s employment he worked as a moulder, which exposed him to inhalation of silicate dust to such an extent that by January, 1930, he had become medically disabled because of silicosis; and, as he had pains in his chest, was short of breath, and was losing weight and getting weaker, and could not continue to perform hard labor as a moulder any more, he then spoke to the superintendent of his employer about his condition in those respects and requested to be given cleaner and lighter work. The superintendent recalled that Schmoller then told him that the work was getting too strenuous for him and that he would like a lighter job. He did not recall Schmoller’s referring to a
When the Employers Company, on April 1, 1933, again became the compensation insurer of the Glancy Company, it had all of the latter’s employees, including Schmoller, examined by one of its physicians, and, on April 18, 1933, as the result of that examination, he found that Schmoller had silicosis in the second or third stage. Thereupon the Glancy Company took Schmoller’s name off its pay-roll, and on May 4, 1933, he was informed by the superintendent that the doctor thought it would be better for his health if he remained out of the foundry, and that he could not work any more for the Glancy Company.
Schmoller testified that when he worked last, on March 18, 1933, as well as ever since, he was short of breath and unable to do any heavy work; that he expected and would have continued to work as relief watchman and oven-tender
The examiner, who had been authorized by the commission to make findings, found that Schmoller—
“because of his employment as a moulder, and as a nightwatchman and oven-tender, did inhale dust so as to cause applicant to have a silicosis; that the applicant became disabled because of silicosis on March 18, 1933, while employed as night-watchman and oven-tender; .' . . that although applicant’s employment was changed about January 20, 1930, to lighter work, that of night-watchman and oven-tender at a lesser rate of pay per hour, the applicant suffered no wage loss because of disability prior to March 18, 1933; that applicant, because of his injury, has been, since March 18, 1933, disabled to an extent equal to one-half of total disability and is entitled to compensation for disability on that basis. . . .”
Upon that finding the Glancy Company and the Travelers Insurance Company, as its insurance carrier, were ordered to pay compensation that accrued since March 18, 1933.
That finding, insofar as it was intended thereby to find that the first compensable disability of Schmoller, because of silicosis, occurred on March 18, 1933, is contrary to the evidence which established that he had, in fact, sustained such disability in January, 1930, because at that time his silicotic condition had progressed to such an extent that, because of páins in his chest, shortness of breath, and weakness, he could not continue to do the hard work of a moulder, and therefore was obliged to request his employer to give
Consequently, the commission should have found the extent to which Schmoller had become disabled in January, 1930, and also the amount of compensation which was to be paid to him on that account by the Glancy Company, and the Employers Company, as its compensation insurer up to April 1, 1931. The examiner’s finding that, since March 18, 1933, Schmoller has been disabled to the extent of one-half of total disability does not necessarily warrant the assumption that that was also the extent of Schmoller’s disability in January, 1930. On the contrary, it appears that, subsequent to January, 1930, increased medical disability arose because of a new onset, induced by the subsequent exposure to which Schmoller was subjected while working as watchman and oven-tender, and which aggravated his
On an appeal by the Industrial Commission, it is contended that the judgment is erroneous insofar as the circuit court remanded the record because of error in computing the amount of the compensation to be paid for disability
The Employers Company, on a motion for review, contends that because the appellants did not file a petition in twenty days to have the Industrial Commission review the examiner’s findings and order, the circuit court should have granted a motion made by the Employers Company for the dismissal of the action on the ground that it was to review an award of an examiner, and not an award that had been reviewed or passed on by the full board. That contention cannot be sustained. Sec. 102.18 (2), Stats. 1933, provides that the Industrial Commission may authorize a commissioner or examiner to make findings and orders, and any party in interest dissatisfied therewith may file a written petition with the commission to have it review such findings or order. However, sub. (3} of sec. 102.18, Stats., provides :
“If no petition is filed within twenty days from the date that a copy of the findings or order of the commissioner or*623 examiner was mailed to the last known address of the parties in interest, such findings or order shall be considered the findings or order of the industrial commission as a body, unless set aside, reversed or modified by such commissioner or examiner within such time.”
Consequently, as no petition was ever filed for a review of the examiner’s findings and award, they became, under and by virtue of that statutory provision, the findings and award of the commission as a body, and as such they were subject to review in an action in court brought against the commission for that purpose under sec. 102.23, Stats.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment vacating the award in all respects and remanding the record to the Industrial Commission, with directions to dismiss the application as to the Travelers Insurance Company, and for further proceedings, in accordance with the opinion.