210 Wis. 398 | Wis. | 1933
The following opinion was filed December 6, 1932:
The Industrial Commission of Wisconsin made an award of workmen’s compensation in favor of John Sanger and against his employer the Nordberg Manufacturing Company and its insurance carrier, American Employers’ Insurance Company. The award was based upon disability resulting from an occupational disease. Sanger was a core maker, and since 1900 worked at that trade in foundries. Such employment required him to work in a dusty atmosphere and to breathe dust, which led to the contraction by him of the disease of tuberculosis superimposed on pneumoconiosis. He worked for the North End Foundry Company intermittently from. December 23, 1924, to October 8, 1928. On the latter date he left the employment of that company because he was dissatisfied with the work as
On July 2d, after his discharge from the sanitarium, Sanger secured employment at his trade as a core maker with the Nordberg Manufacturing Company, where he continued at work until the 25th day of November, 1929, at which time he was laid off, due to a slackness of work. While working during this period he lost weight, developed a bad cough, which became worse, and he testified that he would have had to suspend work anyway if he had not been laid off, because he did not feel able to continue at work.
Upon the appeal here, the finding that the employee sustained the injury, as found by the Industrial Commission, is not challenged, but it is contended that the injury found to have been sustained was but a recurrence of a former attack sustained by Sanger when he was in the employ of the North End Foundry Company.
It may be conceded that when Sanger went to the Muir-dale Sanitarium he was suffering from tuberculosis which resulted from the following of his trade as a core maker. However, there is no evidence in the case to justify or at least to compel a conclusion that he sustained a compensable injury at any time while in the employ of former employers. He did not quit work upon any former occasion by reason of disability resulting from tuberculosis. When he first consulted a physician about Christmas, 1929, he was not in the employ of any one. When he went to work for the Filer & Stowell Company during January, 1929, he worked without cessation until he was laid off.
The workmen’s compensation act deals with compensable injuries, and under the provisions of sec. 102.03, Stats., the injury,- to be compensable, must occur when “the employee is performing service growing out of and incidental to his employment.” The contention here is, that under the rule laid down by this court in Zurich General Acc. & L. Ins. Co. v. Industrial Comm. 203 Wis. 135, 233 N. W. 772; Outboard Motor Co. v. Industrial Comm. 206 Wis. 131, 239 N. W. 141; and Marquette Granite Co. v. Industrial Comm.
This court recognized, in Wisconsin Granite Co. v. Industrial Comm. 208 Wis. 270, 242 N. W. 191, that in order to entitle the employee to compensation it was necessary that the injury be sustained by the employee at a time when the relation of employer and employee obtained, and it was held in that case that under some circumstances that relation
We take this occasion to emphasize again, as we have many times in the past, that the right of an employee to compensation for an occupational disease hangs „by a slender thread, in view of the very cursory statutory provisions upon which that right must rest. It has required no little judicial ingenuity to save the right in many cases where the legislature seemed to intend compensation to be paid. It is realized full well here that most any time judicial ingenuity will be baffled, and there may come a time when a worthy employee must go uncompensated because of the failure of the legislature to grapple with the subject in a specific and definite way.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on February 7, 1933.