219 Wis. 204 | Wis. | 1935
The judgment appealed from confirmed an award by the Industrial Commission for the payment by the plaintiffs, Motor Castings Company and its insurer, of workmen’s compensation to Joseph Lester for partial disability sustained by him on April 7, 1933, while employed by the Motor Castings Company.
In connection with making that award, the commission found that the applicant, Lester, while working in a foundry inhaled silica dust so as to cause his disability, which arose out of his employment while performing service growing out of and incidental thereto; and that “at the time of applicant’s sustaining his disability he was in the employ of Motor Castings Company, and his disability commenced on April 7, 1933.”
The plaintiffs contend that the evidence does not admit of the finding that Lester sustained compensable disability on April 7, 1933, or while employed by the Motor Castings Company.
Evidence which is undisputed establishes that from 1922 to October 13, 1932, Lester worked for the South Side Malleable Casting Company, where he was exposed to silica dust, as a repairer of sand-blast equipment, except for the last nine months of that period during which time he was exposed to coal dust; that while employed there he was off ten days in February, 1932, because of an appendectomy, and also two weeks in March, 1932, because of a sore chest,
On April 4, 1933, physicians selected by Motor Castings Company, or its insurer, examined Lester; and one of those physicians told him that he was really not fit to be inside of a foundry. Lester testified: “That was about April 5th . . . I did not talk with the boss or foreman, or anybody after that, but I worked on the 7th of April and went home that night and never went back to work because they sent in a discharge over there that they should not keep me there. The foreman told me that. He stated that they discharged me. They would not let me in the foundry any longer. I think he told me that on the 7th day of April, 1933.”
It is undisputed that up to the time of that discharge on April 7, 1933, he had worked for the Motor Castings Company without suffering any disability that occasioned any loss of time or wages.
Subsequent to the time that the commission concluded, and the circuit court rendered its decision in this action, that Lester was entitled to the payment of compensation by the plaintiffs, this court decided the cases of North End Foundry Co. v. Industrial Comm. 217 Wis. 363, 258 N. W. 439, and
On this appeal the Industrial Commission, in view of this court’s decisions in the cases cited above, does not urge that its findings and award are correct, but suggests that “possibly liability should have been imposed upon a prior employer, and that the record should be remanded for additional hearings and findings.” Lester, however, has not requested a rehearing or any such relief. The commission’s finding that “disability commenced on April 7, 1933,” negatives, by implication, the existence of any compensable disability prior to that time; and that has been accepted by him as a verity. Moreover, although Lester laid off from work for two weeks in March, 1932, because of pains in his chest and coughing and spitting blood, that illness does not appear to have been regarded as an occupational disease. As there was no testimony, medical or otherwise, that that illness, or the layoff in March, 1932, was due to silicosis, it would have
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment setting aside the award. ■-