257 Wis. 411 | Wis. | 1950
Lead Opinion
In findings and an interlocutory award of compensation made after a hearing before two examiners of the Industrial Commission, and affirmed by the commission, they found (so far as here material) :
That applicant, Dorothy Lockhart, entered St. Mary’s Hospital (hereinafter called “hospital”) school of nursing on September IS, 1942, and continued as a student nurse until May 2, 1944; that in April, 1943, she became ill with a diagnosis of erythema nodosum; that a tonsillectomy was performed on her on April IS, 1944; that in April, 1944, she was informed that an X-ray report indicated a suspicious lesion of possible tuberculosis, but nothing definite; that the hospital informed her she could continue work or go to bed, and she continued as a student nurse until May 2, 1944; that she was a patient at the hospital from May 3, 1944, to July 21, 1944, and went home and returned to the hospital as a patient from September 16, 1944, to September 27, 1944; that sanatorium care was recommended in September, 1944, and on October 11, 1944, she entered the Wisconsin State Sanatorium (hereinafter called “sanatorium”), where a diagnosis of pulmonary tuberculosis was made; that she was a patient there until discharged October 10, 1945; that she and Margaret Wilkinson had worked together as student nurses in the hospital in March, 1943, and at that time Margaret Wilkinson was a highly infectious source of tuberculosis ; that the applicant contracted pulmonary tuberculosis through contact with Margaret Wilkinson in the performance
Upon these findings the examiners awarded compensation to the applicant by the interlocutory order; and the Industrial Commission affirmed the award, and filed a memorandum opinion in which the commission stated:
“Applicant’s last day of work was May 2, 1944. That constitutes the date of injury under sec. 102.01 (2), Stats. Application was filed on July 3, 1946, more than two years after the last day of work. Sec. 102.12 provides that regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”
The plaintiffs contend that in March or April, 1944, the applicant knew she had tuberculosis, and that it resulted from her work. On the other hand the applicant and the Industrial Commission contend that while she may have had a suspicion
. . Absence of notice shall not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the .injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”1
As stated in Larson v. Industrial Comm. 224 Wis. 294, 297, 271 N. W. 835,—
“These provisions [sec. 102.12] were intended to cover cases where there might be some factual basis for ignorance of the character of the disability, and its causal relation to the work in which applicant was engaged. In nearly every accident case this will immediately be apparent, and the provision was directed primarily to cases of industrial disease where it was factually possible for some time after the onset of the disease for the applicant to be in doubt or ignorant, (1) as to what the disease was, and (2), whether it had in fact any relation to his employment.”
As stated in Trustees, M. R. Sanatorium v. Industrial Comm. 224 Wis. 536, 541, 542, 543, 272 N. W. 483,—
“What an employee may think as to the nature of his disability and its relation to his employment is not alone sufficient to start the running of the two-year statute of limitations. To so hold would be to adopt an unthinkably harsh rule. What an employee thinks must be based on*416 something more than suspicion and conjecture in order to start the running of the statute of limitations. Such thought must be based upon knowledge of, or upon reliable information regarding the nature of his disability and its relation to his employment. ... In our opinion, the compensation law does not put upon an employee the duty of knowing the nature of his disability and its relation to his employment before those things are reasonably ascertainable by the medical profession.”
Consequently, until the applicant knew or ought to have known the nature of the disability and its relation to her employment, her right to compensation therefor had not become barred under sec. 102.12, Stats., which was relied upon by the commission in awarding compensation to her.
The evidence in the record clearly establishes that the applicant contracted tuberculosis in the course of her employment as a student nurse at the hospital; that her tuberculosis probably came from her contact while working with Margaret Wilkinson in March, 1943, in the hospital supply room; that her last day of work was May 2, 1944; and that her application for adjustment of her claim was filed with the Industrial Commission on July 3, 1946. But plaintiffs contend there is no credible evidence to .support the commission’s findings that she did not know or ought not to have known more than two years prior to the filing of her application on July 3, 1946, the nature of her disability and its relationship to her employment; and they contend that she knew in April and May, 1944, the nature of her disability, and its relationship to her employment, is shown by the report of the hospital roentgenologist on an X ray taken May 30, 1944. In considering appellants’ contentions in those respects there must be noted the following: There is no history of tuberculosis in the applicant’s family before entering employment at the hospital, and when a pre-employment X ray was taken on July 8, 1942, it was interpreted as negative for tuberculosis. In working with Margaret Wilkinson for two or more weeks in March, 1943, from two to four hours
On May 3, 1944, the applicant re-entered the hospital as a patient for observation, and was still under the care of Dr. Waddell until July 21, 1944. At his request the hospital’s roentgenologist re-examined the X-ray films made in September, 1943, and March and April, 1944, and reported that “The picture is quite characteristic of an active minimal fibrocaseous tuberculous lesion.” Another X ray was then ordered in May, 1944, and interpreted by the roentgenologist in a report, dated May 30, 1944, as follows:
“Re-examination reveals the infiltrations in the periphery of the right second interspace anteriorly to have decreased in sise, significantly. They also appear somewhat more fibrotic. The remainder of the lung fields are clear. Conclusions: Receding minimal tuberculous infection.”
When Dr. Waddell saw that report he ordered a gastric test to confirm the probable diagnosis. It takes up to two months to get a report on a gastric specimen tested for tuberculosis, and the gastric-test report, dated June 22, 1944, indicated positive laboratory tests for tuberculosis. Dr. Wad-dell testified he did not know when the report came to his attention, and did not recall when he told the applicant about the result of the test, either in June or July. She testified that she first knew she had active tuberculosis after she was given the gastric-test report by Dr. Waddell, and the only testimony in the record as to when she was advised of the result of the gastric test is her testimony that she was advised about two weeks before July 21st that the gastric test was positive.
From October, 1944, to October, 1945, Dr. Schmidt, superintendent of the State Sanatorium had charge of the applicant. He testified that on the basis of the X-ray film of April 4, 1944, he would not diagnose pulmonary tuberculosis in her case; that the film alone suggests the possibility
However, because the roentgenologist’s report of May 30, 1944, makes a diagnosis of “receding minimal tuberculosis,” appellants rely upon it to establish that the applicant had contracted tuberculosis during the course of her employment and that she knew those facts. Appellants’ contention in that respect cannot be sustained. Although the superintendent of nurses testified she handed and read that report to the applicant, it was not a definite diagnosis; it was but suspicious of minimal tuberculosis; and as the applicant testified, “There was a possibility I had minimal tuberculosis but it was indefinite. I was informed that the X ray of chest showed possible tuberculous lesions.” As the evidente is undisputed that she never saw the X ray of May 30, 1944, and never was told anything about it or informed of the results thereof, it follows that it does not establish that she knew or ought to have known the nature of the disability and its relation to the employment. Moreover as there was Dr. Waddell’s testimony that when he examined the roentgenologist’s report of May 30, 1944, he did not make a diagnosis of active tuberculosis on that X ray, and also the testimony of Drs. Schmidt and Curreri and Dickie that the X ray of May 30, 1944, would not establish a definite diagnosis of active tuberculosis, and the testimony of the hospital’s superintendent of nurses
As she testified she was not informed of the source of her infection until she consulted with Dr. Maresh at Wisconsin State Sanatorium in October, 1944, and then first learned upon stating her history that her tuberculous condition was related to her employment at the hospital, and that her contact there with Margaret Wilkinson was the source of her tuberculosis, the Industrial Commission was fully warranted in finding that on May 2, 1944, she sustained injury in the nature of pulmonary tuberculosis while in the employment of the hospital; that the record is sufficient to establish that she did not know the nature of her disability and its relation to her employment prior to October, 1944; that she ought to have known the nature of her disability and its relation to her employment no earlier than October, 1944; and that the filing of her claim on July 3, 1946, was timely and her claim is not barred by operation of sec. 102.12, Stats.
The plaintiffs, in claiming that the applicant knew in April and May, 1944,'the nature of her disability and its relationship to her employment at the hospital, rely considerably on what was written on two sheets of paper by an adjuster for the hospital’s insurance carrier as purported statements by the applicant in a two-hour conversation with the adjuster. In relation to the purported statements as written by the adjuster, applicant testified that the adjuster did not report accurately all of the matters which were explained to him. That she stated that the X-ray report of April 4, 1944, showed that the diagnosis was minimal tuberculosis, and that it was not a definite diagnosis but he did not write it all down as she stated. Ele wrote a part of it, but it was incomplete;
In view of the applicant’s testimony as to the extent and manner in which the adjuster purported to write what she had stated, it was within the province of the examiners to consider the purported statements as written by the adjuster to be so inaccurate and incomplete as to be of little consequence in so far as they are in conflict or inconsistent with the applicant’s testimony at the hearing upon which the issues were decided by the examiners and the commission. To her statements to the adjuster and also in some of her testimony as to what she knew about her physical condition at various times during the course of the developments therein which finally resulted in her ultimate disability and incapacity to work, there is applicable in her case, — as there was in Trustees, M. R. Sanatorium v. Industrial Comm., supra, page 542,- — the conclusion that due consideration of much of what she stated expressed her thoughts at subsequent times rather than the thoughts she had prior to October, 1944.
The statement in item No. 9 of the applicant’s application for compensation filed in July, 1946, which reads, “Notice of injury given employer — on April (or late March) in the following manner: Was informed that X ray of chest showed
By the Court. — Judgment affirmed.
The following memorandum was filed September 6, 1950:
See memorandum on motion for rehearing, post, p. 422.
Rehearing
(on motion for rehearing). In lieu of the citation of sec. 102.12, Stats., and the statute quoted in connection therewith in the opinion filed on June 30, 1950, said portion of the opinion is corrected to read:
“. . . sec. 102.12, Stats. 1943, that,—
. . Absence of notice shall not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”
By the Court. — Motion denied with $25 costs.
