Voelz v. Industrial Commission

| Wis. | Oct 5, 1915

The following opinion was filed June 1, 1915:

Winslow, C. J.

The Industrial Commission can make no award unless it be supported by its findings of fact (sec. 2394 — 19, Stats.), and every finding of fact must have some substantial evidence in its support, though not necessarily the preponderance of the evidence. Milwaukee C. & G. Co. v. Industrial Comm. 160 Wis. 247" court="Wis." date_filed="1915-03-02" href="https://app.midpage.ai/document/milwaukee-coke--gas-co-v-industrial-commission-8191682?utm_source=webapp" opinion_id="8191682">160 Wis. 247, 151 N. W. 245. It must result from this that a finding of fact made by the Commission cannot he based on mere conjecture any more than a finding of fact made by the court. It does not require so much evidence in its support, but it cannot be upheld without evidence.

In the present case the Commission did not determine the crucial question of fact in the case, namely, the question how the gonococci germs got into the eye. They say that the substance which fell in the eye may have been infected, or, “with the eye inflamed, it might have become infected by rubbing it with an infected cloth or washing it in infected water, or in other ways. This seems a reasonable conclusion.” We interpret this as meaning that it is purely conjectural as to how the infection got in the eye, hence they do not decide that question, but their legal conclusion is that, however the infection came in, it is legally traceable to the dropping of the foreign substance in the eye, because that fact inflamed the eye and induced the rubbing with an infected cloth or the washing with infected water.

This would be strictly logical if it could be said (1) that the claimant would not have washed his eye or rubbed it with a towel in the absence of the injury to the eye, and (2) that only an inflamed eye could be infected by a gonorrhoeal infection. The difficulty is that neither of these propositions can be supported. People who have suffered no such mishaps also wash their faces and wipe their eyes with towels daily as a matter of course, and it is a well known fact that the gonorrhoeal infection waits not upon inflammation or in> jury to make its entry into the eye.

It is said in the Encyclopedia Britannica (11th ed.), vol. 27, p.. 983:

“One of the most important points in the management of a case of gonorrhoea is to prevent all risk of the septic discharge coming into contact with the eye. It sometimes happens that the patient inadvertently introduces the germs into his own eye by his finger, or that his eye or the eye of some member of bis household becomes inoculated by the use of an infected towel. If this happen, prompt and energetic measures must be taken to save the eye.”

In the present case it is found, upon sufficient evidence, that the claimant had no gonorrhoeal infection except that which developed in his eye, but it does not appear where or under what circumstances he washed the eye or what towels or cloths he used to wipe it.

Apparently the substance which fell in his eye was something hard. ISTo mention is made of it as a liquid. The claimant calls it “something” and says he tried to get it out by rubbing. It appears by the evidence that the claimant was not working on the waste pipe or any pipe which takes water away from the wash bowl, but on the locknut of the basin cock, i. e. the cock which supplies clean water to the bowl.

If the Commission had found as a fact that the infection came from the substance that dropped in the eye, it might be difficult to say that there is no evidence to support the finding, but they did not so find. On the contrary they reached the conclusion, which seems to us eminently reasonable and logical, that it might have come from this source and might also have come from a number of outside sources.

In substance, the conclusions of the Commission are as follows: Something fell in the plaintiff s'eye, causing pain; he rubbed the eye; gonorrhoeal infection followed; he did not have the infection previously; we cannot determine whether the infection in the eye came from the substance which fell into it, from water with which he bathed it, or from a towel with which he rubbed it, but in either event we regard the dropping of the substance in the eye as the legal cause of the subsequent loss of sight within the meaning of the Conjpen-sation Act.

If this be correct, then any man at work at any occupation who gets something in his eye while at work and rubs the eye, the rubbing being followed by gonorrhosal infection, may recover for tbe loss of the eye simply on producing evidence of these facts, together with evidence tending to show that he did not have gonorrhoeal infection previously. We cannot agree that this is good law. It bases liability upon conjecture., Unless there be some evidence tending to show that the substance which fell in the eye caused the infection and. unless that fact be found, we cannot regard the subsequent loss of the eye as proximately resulting from an injury “incidental to and growing out of the employment.” Koenig v. Industrial Comm. 159 Wis. 646, 150 N. W. 996.

By the Court. — Judgment reversed without costs, and cause remitted to the circuit court with directions to set aside-the award of the Industrial Commission.

Siebecker, J., dissents.

A motion for a rehearing was denied, without costs, on October 5, 1915.