217 Wis. 363 | Wis. | 1935
The following opinion was filed January 8, 1935 :
We shall first consider the questions raised upon the appeal of the plaintiffs. It is the contention of the plaintiffs that the several claimants suffered no com-pensable disability while they were in the employment of the plaintiff Foundry Company. The controversy arose in the following manner: The Travelers Insurance Company had carried the compensation risk of the plaintiff Foundry Company for many years prior to November 28, 1932, on which date they terminated the contract and the Massachusetts Bonding & Insurance Company became the insurance carrier. Thereafter it served a ten-day notice of cancellation, pursuant to the provisions of sec. 102.31, Stats. 1931. The Foundry Company then requested the Employers Mutual
“Their physical condition is such that they now have no disability for any employment. However, continued employment in their present occupation which we understand is of a dusty nature, may result in time in impairment to their health. As they have been in your employ for some time we assume you are anxious to retain them in service and if at all possible provide them with a dustless job. We sincerely hope that such may be the case and we strongly urge this course to be followed. The humanitarian consideration of the health of your workers suggests prompt action on this subject.”
Prior to December 21, 1932, none of the claimants had suffered any wage loss by reason of any disability due to exposure to silica dust. When claimants came back on December 22d, they were told they would not be given work for the reason that the result of their physical examination was not satisfactory, and the company would no longer employ them.
The controlling question raised in ‘each of the cases is the same, but the facts and circumstances of the cases differ somewhat. No useful end would be served by setting forth a statement of the facts in detail in each case. The commission found that claimant Pernovich was totally disabled. All of the questions which we are called upon to consider arise under the facts of the Pernovich case. We shall therefore state the facts in that case somewhat in detail.
Pernovich was thirty-nine years of age. He had worked in shops in Milwaukee, began work for the North End
“And in your opinion is a man with silicosis, one you term a second stage, with a superimposed tuberculosis, able to do any work?” to which he replied:
“He should not work. He might be able to do some, but for his own good he should not do any work, to try to over-dome the tuberculosis infection.”
On cross-examination the doctor testified:
“He unquestionably has had a silicosis which would be demonstrable for a number of years. When his tuberculosis process started is conjectural, but it probably started, sometime within the past year or so. From my examination I could say that it dated back at least a year and the silicosis condition much longer than that. I should say that his silicosis first became demonstrable probably at least five years ago.”
Pernovich testified:
“After I was examined by Doctor Sander, Shorty [the foreman] told me they can’t keep me, the state law called for that. He was sorry for me. He says ‘Too bad, George.’ As a matter of fact I was fighting to go back to work all the time, even after that. After that I went back to see how I was standing. I didn’t believe myself I was sick.”
Reinhart Koepsell testified:
“We laid off every one of our men on the 19th. After they completed their work on the 19th, we discharged them until they were examined. The records show that Doctor Sander examined them on the 21st. That statement was made to all of our employees.”
Pernovich testified on this point:
“On the 19th Mr. Koepsell told everybody that they couldn’t work any further until after the examination. They were all discharged at that time if they ain’t healthy. If the examination showed they were, they might re-employ them.”
Upon other medical evidence which was substantially that given by Doctor Dallwig, the commission found that Perno-vich—
“during this employment he had been employed in chipping, grinding and cleaning castings and also in the sandblasting operations; that during all this time he was exposed to the inhalation of silica dust; that the last day he actually worked was December 19, 1932; that on December 21, 1932, the employer directed the applicant to submit to a medical examination to determine his physical condition; that on the evening of December 21st the employer was advised by the examining physician that the applicant had active tuberculosis Superimposed upon silicosis and that the applicant should not be continued in his dusty employment; that on December 22, 1932, the applicant was told by his foreman that he ‘was no good and couldn’t work’ any longer, and, in the words of the president of the respondent, ‘the next time (day after the medical examination) we saw them, they were told we could not employ them any more on account of the result of this examination;’ that on the basis of the applicant’s discharge because of his physical condition and on the basis of further medical examinations, it is clear that following December 21, 1932, the applicant was totally disabled and undoubtedly will be so disabled permanently.”
Upon the claims of Repati, Motowski, and Murawski, the commission did not make final awards.
Upon the record the following facts appear to be undisputed: (1) The relation of employer and employee existed between the North End Foundry Company and Pernovich; (2) at no time down to and including December 22, 1932, had Pernovich ever sustained a wage loss due to his inability to perform his work in the usual and customary way; (3) that silicosis is a condition of the lungs brought about through the inhalation of certain forms of dust — in this case, silica dust; that it has three stages; that Pernovich was in the second stage of this disease; that it had existed in some stage for probably five years or more; that Pernovich had tuberculosis superimposed upon silicosis; that in the region affected by silicosis it was also affected by tuberculosis; that, when silicosis reaches a certain stage, the-end result is inevitable, that is, there is no cure. Apparently deterioration progresses more rapidly in some individuals than in others; (4) that Pernovich was not discharged because of any present inability to perform his work, but because of the condition disclosed by the medical examination which the employer was fearful would lead to future disability. Whether the discharge be dated from the 19th day of December, when they were discharged subject to be re-employed or from the 22d day of December when they were told they would not be re-employed, is not material to' a determination of the issue in this case; (5) that Pernovich, as is frequently the case while suffering from an advanced stage of silicosis upon which was superimposed tuberculosis, was able to and did continue to perform his work in the customary way; (6) that for him to continue work would diminish his chances of
The question to be decided is, Did Pernovich sustain a disability at a time when the employer and Pernovich were subject to the provisions of ch. 102, Stats., which entitled him to compensation? Sec. 102.03, Stats. 1931, which governs this case, provides:
“(1) Liability for compensation shall exist against an employer for any disability sustained by his employee and for his death, in cases where the following conditions of compensation concur:
"(a) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.”
The term “disability” is not defined by the act. The term “injury” is defined as “mental or physical harm to an employee,” and is extended to and includes diseases growing out of and incident to employment.
In a number of cases the court has taken occasion to point out the difficulties which exist in the administration of the Workmen’s Compensation Act due to the fact that the amendments creating liability for disability due to occupational disease made no special provision for determining when disability arose, leaving the matter to be determined under those provisions of the law applicable to accidental injury. As has been said in previous opinions, occupational disease has a slow insidious approach, and in that respect differs widely from an accident, the happening of which can be fixed at a point in time. When the court came to apply the law it was faced with many difficulties. If it was held that disability arose when the first impairment due to occu
While ch. 403, Laws of 1931, revised the Workmen’s Compensation Act and defined “time of injury,” “occurrence of injury,” “date of injury,” as the date of accident which caused the injury or the date when the disability from occupational disease first occurs, it did not define the term “disability.” Under such circumstances we are obliged to assume that the legislature used the term “disability” in the act of 1931 in the sense in which it was then understood in the law.
“Unless the date when the employee is disabled from rendering further service be taken as the date that determines liability, it will be very difficult to administer the workmen’s compensation act so far as disability resulting from occupational disease is concerned. The protection of the rights of both the employer and the employee requires that liability be fixed as of that date. If liability must be determined as of the date when the disease had its inception, the employee would be under the necessity of giving notice of every slight ailment which might be the incipient stage of some occupational disease that might cause disability at some more or less distant future time. . . .
“Unless the workmen’s compensation act be construed to permit the giving of notice of claim for compensation for disability resulting from occupational diseases within thirty days from the date of disability, employees who are entitled to compensation because of disability caused by such diseases might find their claims barred. . . . ” See also Schaefer & Co. v. Industrial Comm. 185 Wis. 317, 201 N. W. 396.
From that time forward this court has consistently held that disability occurs within the meaning of the statute when the employee is disabled from rendering further service, that is, when he no longer has the present physical ability to perform his work in the usual and customary way. Unless he is so disabled as to be unable to perform his usual and customary work in the ordinary way during the time of his employment, he sustains no compensable injury even though while in the employment he may have been subjected to exposure which contributed to the end result. See Hayes v. Industrial Comm. 202 Wis. 218, 231 N. W. 584; Montello Granite Co. v. Industrial Comm. 212 Wis. 243, 248 N. W. 427, 249 N. W. 516; Michigan Quartz Silica Co. v. Industrial Comm. 214 Wis. 492, 253 N. W. 167.
It is argued, however, that the court has extended the rule laid down in the Zurich Case, supra, in two cases. The first of these cases is Kannenberg Granite Co. v. Industrial Comm. 212 Wis. 651, 250 N. W. 821, which is relied upon by claimants as establishing their right to compensation in this case. In that case the employee Terve had worked for a number of years prior to July 24, 1930, for Anderson Brothers & John
The second of these cases is Michigan Quartz Silica Co. v. Industrial Comm., supra. In that case the claimant testified :
“Previous to June 9, 1932, I didn’t feel just up to snuff. Mostly I noticed it about May 7th. It was hard for me to breathe. I wasn’t as peppy as before. I was tired out most of the time, but the breathing was hardest and I had a cough. ... I don’t know how long before May 7th it had been coming on. I can’t remember how long before that I was coughing. My staying out of the plant did not have anything to do with my condition. I wasn’t afraid to go in there.”
He further testified that he did not notify his employer of his condition because he wanted to continue his work as long as possible and did not want to lose his job. He was subjected to an examination, and on the advice of his physician he quit work on June 9, 1932. The real controversy in the case was between the insurance carriers, but the question
It must be apparent that the court can gO' no farther under the law governing this case than it went in the Kannenberg Granite Company Case and the Michigan Quartz Silica Company Case. What we are asked to do in the present case is to hold that where an employee has been subjected to exposure, but has suffered no physical disability which prevents him from performing his work in the usual and customary way,
In a number of cases it has been argued that to permit an employer to discharge an employee who has been subjected to exposure in anticipation of future disability is against public policy and should in some way be prevented by the court. On the other hand, it has been argued that it is in accord with sound public policy that men supposing themselves to be healthy should not be allowed to continue in a hazardous occupation, and that such examinations are in the interest of sound public policy. Involving as these arguments eta questions of public policy, obviously the matter is one for the legislature and not for the court. It is the duty of the court to administer the law as enacted by the legislature.
We find no evidence whatever in the record to sustain the finding of the Industrial Commission that the claimants in these cases suffered a compensable disability. They suffered no disability as that term is defined in the law until after the relation of employer and employee had been terminated. In this connection a word should be said in regard to so-called “medical disability.” Disability is itself a somewhat elusive
The question to be determined is, What is the just liability of an industry which unduly increases the hazards and risks of normal life? In cases of accident, prescribed formulas give a certain answer. The commencement, the duration, and the extent of accidental injuries can be determined with reasonable certainty. In cases of occupational disease, the matter is much more difficult because of the inability, first, to determine what proportion is due to the occupation and what
There being no evidence to sustain the finding, the trial court was in error in modifying and affirming the award.
By the Court. — The judgments in the several cases appealed from are reversed, and the causes remanded with directions to the circuit court to enter judgment in each case setting aside the award of the Industrial Commission.
A motion for a rehearing was denied, with $25 costs in one case, on March 5, 1935.