Thomson v. Industrial Commission

| Wis. | Jan 10, 1928

Vinje, C. J.

The only questions raised by the appeal are questions of facts, namely, whether there was evidence sufficient to authorize the Industrial Commission to find that tuberculosis was contracted by the employee while in the course of his employment; and second, whether the employer was prejudiced or misled by reason of no notice of the contracting of such tuberculosis being given to the employer. The evidence is practically conclusive that at the termination of the employment in December, 1914, the employee had a well developed form of tuberculosis. It is quite conclusive, also, that previous to his entering upon the employment he was free from tuberculosis. The latter fact is controverted by the appellant, but the evidence is quite clear and satisfactory that if Jepson was suffering from tuberculosis at all at the time he entered the employment of A. D. Thomson & Company it was a latent or slumbering form and that the dust in which he worked during the term of his employment lit up such latent or slumbering form of tuberculosis. The employee claims that he was well and had been examined medically a short time before he entered the employ of A. D. Thomson & Company and that he had no tuberculosis. Dr. O’Leary, who had examined him a number of times since his employment and before his discharge, was of the opinion that “the condition of this man could be traced back to the nature of his employment.” Drs. Tuohy, Orchard, and Schnell, who had also examined him, were of the opinion that the duration of his employment was too short to attribute his condition at the time of his examination to such employment. Where, as here, there is a difference of opinion between experts as to the cause of the sickness, it is for the Industrial Commission to make a finding as to such contested matter, and unless such finding is clearly against all the credible testimony, or so inherently unreasonable in itself as not to be entitled to any weight, the conclusion arrived at by the Commission is final. We fail 'to see that the finding made by the Commission, sustained as it is by the trial court, is not conclusive upon us. Where, as here, we have a finding of fact or conclusion from undisputed testimony not so unreasonable in itself as to be disregarded, we are concluded by the result arrived at by the Commission. We therefore conclude that the finding that tuberculosis in this case was caused by the nature of the employment and during the term of the employment is sustained by sufficient evidence.

It is conceded that the employee failed to give the statutory notice. There is no evidence in the record to show that the employer was in any way prejudiced thereby. The burden rests upon the employer, in case there has been a failure to give notice, to show that he has been prejudiced. In the absence of such proof the failure to give notice is immaterial.

By the Court. — Judgment affirmed.