289 N.W. 618 | Wis. | 1939
Action brought by Henry J. Rathjen against his employer, the Ludington Telephone Company, and its compensation insurance carrier and the Industrial Commission to set aside the commission's "orders and order of August 2, 1938" in relation to plaintiff's application for the payment of workmen's compensation. The employer and its insurer filed an answer, but the commission noticed a motion to dismiss the action for want of jurisdiction on the part of the court. That motion was granted and the plaintiff appealed.
The material facts shown by pleadings and the exhibits attached thereto in relation to the proceedings and record before the Industrial Commission are as follows: On July 27, 1935, the plaintiff Rathjen, while in the employment of the Ludington Telephone Company as a line repairman, was injured and sustained a severe shock when lightning struck a line which he was repairing. Upon a hearing on his petition filed with the commission for the payment of compensation for injury sustained by "shock resulting from lightning following wires," an examiner for the commission made findings of fact that Rathjen sustained temporary total *454
disability and later partial disability but no permanent disability, and upon those findings an award was made on January 6, 1937, ordering certain payments as compensation, which "when made shall be in full release of liability." Subsequently, on Rathjen's application the commission on January 29, 1937, awarded the further sum of $250 to Rathjen for "additional intermittent disability resulting in wage loss sufficient to entitle the applicant" to that amount. No petition to review the examiner's findings or his and the commission's orders and awards of January 6 and 29, 1937, was filed by Rathjen, and they were not set aside, modified, or changed by any order of the commission within the periods of time allowed therefor by subs. (2) and (3) of sec.
"In view of the petition now filed and in view of the present record, we would like to know whether you and the employer are willing to give further voluntary consideration to *455 this man's claim, and whether or not you wish to check up on the matter promptly with him and his attorneys. . . We wish the insurance company and employer would at once check up on the matter and advise us and the attorneys for the applicant and the applicant as to what their attitude in the matter will be."
The insurer replied on November 26, 1937, —
"It is our intent to have Mr. Rathjen report back to Dr. Rosenberger for a further check up and observation. Following receipt of Dr. Rosenberger's report, we will be able to inform you as to our position in the case."
Between the date of that letter and July, 1938, by arrangements made voluntarily between the parties and the commission, Rathjen was examined by physicians selected by the parties, and also a physician whom the commission appointed with the insurer's permission and at its expense to make an independent examination, the physicians' reports were submitted to the commission, and examiners conducted hearings at which the physicians testified and were cross-examined. On August 2, 1938, the commission wrote Rathjen's attorneys and the insurance carrier, in a letter written by the commission's director of workmen's compensation, that, —
"This matter was heard at Eau Claire on June 8, 1938. As the parties are aware, the case was closed by the commission's final order of January 29, 1937. The purpose of hearing was to ascertain whether the insurance carrier should be requested voluntarily to accept additional liability. The company was willing to do so, provided the commission, upon the testimony presented, should feel that additional compensation should be paid. Before the hearing, it will be remembered that Mr. Rathjen was referred to Dr. Reese, who made an independent medical examination and reported to the commission, copy of which was supplied to the parties. In view of the independent examiner's report, and in view of the testimony given, the commission concludes that it is not warranted in requesting the carrier to assume additional liability. We are, therefore, closing our file." *456
Likewise, in a letter written by the director on August 15, 1938, in reply to an inquiry by Rathjen's attorneys as to whether the letter of August 2d was a final disposition of the matter, he said, —
"Inasmuch as the order, which was issued on January 29, 1937, was final, the commission is without jurisdiction to make further order. The insurance carrier had agreed that if the commission found, upon testimony presented, that further compensation should be paid, the carrier would consider voluntary assumption of additional liability. Inasmuch as the commission feels that the present record does not warrant a further payment, we are closing our file."
Thereupon Rathjen commenced this action in the circuit court on August 31, 1938. The employer and its insurance carrier filed answers, but the commission noticed a motion to dismiss the action for want of jurisdiction, which was granted by the court and is under review on this appeal.
Rathjen's first contention is that the commission could not make a motion to dismiss the action because it was not a proper party in interest inasmuch as (a) it was not to pay an award of compensation, and (b) issue had been joined by answers filed by the employer and its compensation insurance carrier. That contention cannot be sustained. In such actions, the commission is not a mere nominal party, but is a necessary as well as a real party in interest. Sec.
"In any action to review an order or award of the commission, and upon any appeal therein to the supreme court, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not; . . ." *457
and it is provided in sec.
"Said commission, or any party aggrieved by a judgment entered upon the review of any order or award, may appeal therefrom within the time and in the manner provided for an appeal from the orders of the circuit court. . . ."
It is apparent from those provisions that it was clearly the legislative intention to have the commission be a real party in interest, and not a mere nominal party, even though it is not financially interested in the outcome of the litigation. And that that was the legislative intention is evidenced by the statement in the report of the legislative committee on industrial insurance (1911) that, —
"The object of having the action to review brought against the board is two-fold: (1) If any error is made it will be an error made by the board, the fraud of the board that may be subject to review. Consequently, the board should defend its own action, and this will be done at the expense of the state."
Moreover, the right of the commission as a real party in interest to move for the dismissal of such an action because the court's want of jurisdiction was recognized in Archerv. Industrial Comm.
On the other hand, as the commission contends, the order under review must be sustained if plaintiff's action was not commenced within thirty days after the date of the order of the commission which is to be reviewed. The circuit court has only such power to review orders and awards of the commission *458
as are conferred by provisions in the compensation act (ch. 102, Stats. 1937) (Albion v. Industrial Comm.
"From the evident purpose of the act and the stringent language used in this statute so hedging in the right to review, we hold that unless the person feeling aggrieved by the order or award of the commission pursues its dictates closely, the circuit court obtains no jurisdiction to review such order or award." Gough v. Industrial Comm., supra.
It follows that the circuit court did not have jurisdiction if the commission's order or award which is to be reviewed was made more than thirty days prior to the commencement of this action on August 31, 1938. On that issue it appears the record that no order or award was made by the commission after January 29, 1937, which was over seventeen months prior to the commencement of this action. *459
After that date there was no act or proceeding on the part of the commission which resulted in an order or award. Its jurisdiction or power to change, modify, or set aside its prior orders under subs. (3) and (4) of sec.
Rathjen also contends that the court erred in granting the motion to dismiss because he was entitled, by reason of allegations in his petition of August 23, 1937, to have a review of the commission's failure to make findings as to the existence of an occupational disease, and as to whether a mistake had been made in awarding of compensation for an injury when in fact he was suffering from an occupational disease. He claims that if the commission had so found it was within its powers to set aside its award within three years and make *460
a new award under the provisions of sub. (5) of sec.
By the Court. — Order affirmed.