*1 at bar. situation in the matter of such There is no similarity it at the where existed is continued place Here the residence has not The legislature pro- was when imposed. probation are to be sus- settlement legal that qualifications vided is on in which probation. person during period pended court, conclude, that while the trial did I am obliged to initiate ability change legal destroys probation the consummation settlement, not of change it does prevent before commenced probation. court to be of the lower affirmed. ought judgment that Mr.
I am authorized to state Chief Justice Fairchild in this dissent. joins vs. Appellant,
Wagner, Commission Industrial others, Respondents.* September 1956. 14 November * denied, costs, January on rehearing without 1957. Motion for
Cn C_n On
Cn Ul *5 OrGO Ul *6 Fairchild,
For the there was a brief Chame by appellant Milwaukee, & oral Irvin B. Kops and Chame. argument by a For the Industrial Commission there was respondent Levitan, assist- brief the and Mortimer Attorney General by Levitan. ant and oral Mr. attorney general, argument by Metal, Inc., For the and Hardware Ampco respondents Quarles, there was a brief by Mutual Casualty Company and Quarles, and Norman C. Skogstad & attorneys, Spence Milwaukee, counsel, oral all of and P. Rynkiewics Walter and Mr. Rynkiewics. Mr. Skogstad argument by briefs were also filed by the motion rehearing, On Madison, Hart, and Pad- Toebaas, & Jackman of by Kraege Previant, J. and Hugh Albert Goldberg, & Goldberg way, Milwaukee, curiae. as amici all of Hafer, raises the Wagner following employee Currie, J. this contentions on appeal: that the tempo- That the evidence requires finding
(1) the sustained by Wagner during period disability rary partial 15, 1952, 10, 1951, was through August from December cent. than per greater 33% 2, 1951, have been determined should That October
(2) 1951, 6, for all dis- rather than April of injury, as the date 2, 1951. to October subsequent ability occurring that did Wagner That the evidence requires (3) by a result of his employment as sustain permanent sup- is without to the contrary and that the finding Ampco in the evidence. port raised, Ruch testi- Dr. first contention the
With respect cent healed was 80 dermatitis per that Wagner’s fied end should 7, 1951, the total disability and that December in farm- 10, was actually engaged 1951. Wagner December cows, the 1951-1952, doing milking the winter of during ing able to do spring He was the barns. cleaning and feeding, work. Wagner of the field share the greater plowing CO VO o 1952, that in form he did
testified of work only April, not do was the which was done his by evening milking children, but while did such he was they milking working the fields. Both Dr. and Dr. Rowe were of the Epstein opinion Wagner’s completely hands were healed August, 1952.
It is true that there is a lack of fix- complete any testimony ing Wagner’s from December temporary partial disability However, at cent. August per 33% burden of on this issue is proof and not upon employee the employer. failed to establish credible evidence that his temporary partial disability during period *7 was than question cent. greater per 33% Counsel for contend that from a basis wage-loss such was temporary partial disability established at more than cent. The issue of loss per wage treated 33% of this with the part opinion dealing problem permanent if it should that there is disability. Only develop permanent in excess of cent should the disability per commission’s 33% with to the respect percentage temporary partial be disturbed. disability Obviously percentage tempo cannot be less than the rary disability partial percentage disability. contention, turn now to second Wagner’s We that Octo- 2, 1951, be as ber should determined the date of as injury to all to that disability occurring subsequent date. The 1951 increased the maximum rate wage which legislature upon 382, is to be based by ch. enacting Laws of compensation 1951, 1, 1951, which effective amended sec. 102.11 July (1), the commission the date of as By fixing injury Stats. being 1951, 6, none of for Wagner’s compensation April temporary based increased maximum was rate upon wage this 1951 amendment. established
561 The material are statutes to considered sec. necessary 102.01, 1949,1 102.03, Stats. and sec. Stats. 1949.2 While sec. 102.01 that in case of disease (2) provided occupational the date of is the last for the last work injury day employer whose caused such employment disability, provision applies loss after the termination of when the occurs only wage and, there is loss from the where employment, wage occupa tional disease before the termination of the date employment, of the commencement of such loss establishes the date wage Assur. General A. F. & L. v. Industrial Corp. injury. 540, 543, 224, 221 Wis. 266 N. W. Comm. (1936), Industrial Co. v. Comm. Bay Drop Forge Green (1953), 60 N. W. 61 N. Wis. W. (2d) (2d) this, in the The reason for in such 847. explained opinions cases, is because the amendment sec. two cited to which defines date of with injury 102.01 respect disease, was intended to render com- disabling occupational from disease any disability occupational occurring pensable same had been terminated. causing after the employment was not intended to 1933 amendment change prior Such court decision determination of date of rule established disease with where disabling occupational injury respect to termination had occurred of em actually prior loss where the in situations had not employment ployment, ended. *8 1 1949, provided part 102.01(2), Stats. follows: Sec. injury,” injury,” “occurrence of “Time of “date of in- (2) . . . injury of the accident which caused the or in
jury” the date is disease, day employer of work for the last the last whose em- of case disability. ployment caused 2 102.03, 1949, provided part as follows: Stats. Sec. periods temporary of disease intermittent of dis- (3) In the case claims, separate permanent partial disability and ability create shall separate any from subsequent a claim a claim dis- create shall ability disability of an intervening is the result which'latter cause. (4) compensation and the right to amount thereof shall in provisions in accordance with the of law in be determined all cases effect injury. of date as of the
Thus in the instant case had sustained Wagner actually 1951, loss in wage before his with April, employment 2, 1951, Ampco finally terminated on October and the com 6, 1951, mission found been the properly to have date April 1949, of While sec. injury. 102.03 Stats. that provided intermittent shall periods create temporary disability sepa claims, rate it did not each that of such intermittent provide shall have its own date of periods We deem separate injury. that the record in the instant case establishes that Wagner’s dermatitis was not cured on the three completely occasions he returned to work at between Ampco and April Octo words, ber 1951. In other while there were four intermit tent periods partial were all disability they due to one continuous disease that occupational assumed its disabling We, therefore, character in 1951. April, conclude that there is credible evidence to support of the finding commission that was the April date of to all injury applicable periods temporary partial disability sustained by Wagner. The last most and serious issue us on this facing appeal is whether the evidence requires that sustained some total percentage from disease as a result of his occupational employment by Ampco. The medical that he can never undisputed again resume work in a safely machine or other shop industrial because skin on his plant fingers hands has become so that sensitized he would dermatitis if he were develop again such work. attempt His basic rate as of April 1951, as a tool and diemaker in machine Ampco’s was shop, hour. This per type $1.89 is hereafter employment barred him, him the leaving of either option farming doing common labor.
Dr. Ruch testified that skin Wagner’s had become highly sensitized and he adhered to his original diagnosis contact dermatitis” due “occupational to his contacts at Dr. Rowe testified that Ampco. it was the of both opinion *9 Dr. Epstein himself that became Wagner sensitized dur- his ing employment Dr. by Kalb in Ampco. his testimony did not that deny skin Wagner’s had become sensitized highly due to contact with some irritant and his in no contradicts way Ruch, opinion Rowe, Drs. and Epstein in that respect. on point which Dr. Kalb with disagreed the opinions
of these other three was physicians the source of the irritant which caused the dermatitis. For the reason that when Dr. Kalb was consulted by late in Wagner in cold weather had been cows, milking scalding milking utensils, and cows’ washing udders with “B-K” on his little farm, Hales Corners and also because of other reasons doctor, enumerated it by was Dr. Kalb’s opinion dermatitis was “not Wagner’s industrial in essentially na- commission, however, ture.” The rejected this opinion Dr. Kalb when it found that expressly contact Wagner’s dermatitis was due to his employment by Ampco. Inasmuch Dr. Kalb no expressed opinion on the bearing issue of we do not consider permanent disability that his testimony has whatever on that any issue. bearing
The reason commission in assigned its memorandum for denying was opinion permanent disability “that whatever have had he have disability may may henceforth will be not increased sensitivity or such original due as to render more susceptible injury respondenfs him [Ampco’s] We have employ.” (Italics supplied.) searched the record in vain to find evidence such any support determination that further was due to any disability Wagner sensi original not increased by injury Ampco’s tivity The infer employ. that the commission ence is must inescapable have based such in its on rather something past experience than any In in the record. Merton Lumber evidence Co. v. Indus 260 Wis. trial Comm. N. W. (2d) situation, with a confronted similar when this court stated:
in XT 'O *10 the knowledge that the commission suggests for “Counsel considera- be must given the commission of and experience in all it proper it and hope give concede tion. We gladly is of great and experience But while such knowledge cases. means a sub- it is no of evidence by in the value appraisal of the Workmen’s The constitutionality evidence. stitute for review of judicial the right Act depends upon Compensation evidence. are by the findings supported whether to determine 327, 133 Co., 147 Wis. supra. v. Falk [(1911), Borgnis the not in can be review of material There no N. W. 209.] is and experience commission’s knowledge and the record not em- the of either employee there. To subject rights which based facts or expert opinions to decisions upon ployer do of be a of due of record would denial process not appear in the case cannot The of fact present law. findings that sustained on principle.” court de- the learned trial
The memorandum opinion disability, to this issue of but one permanent voted paragraph the same: we quote is: there disability? “The first Was permanent question a conclusion that ended Dr. authority Ruch that the Dr. Rowe considered 22). December 1951 (tr. of 1952’ some time into August man’s ‘condition continued time that his hands were ‘normal’ at that (tr. 81). 79); (tr. the man recovered’ Dr. that was ‘completely Epstein thought the This evidence sustains by (tr. 84). August commission’s finding.”
The the trial court overlooked completely testimony all three these doctors considered that skin had Wágner’s his Dr. become sensitized due to employment by Ampco. not but Dr. Rowe was to state testify did Epstein permitted the was same as that Dr. Rowe. opinion that Dr. Epstein’s Rowe testified that should never Both Drs. Ruch and Wagner It is his former thus obvious return to employment. again of these that the testimony physiciafis, quoted portions in trial court its memorandum referred opinion, only of the visible effects of the dermatitis on up clearing hands and Wagner's did not relate to the sensitivity Wagner had as a result his developed employment by Ampco, which would result in further sensitivity attacks of dermatitis if should thereafter to work a machine attempt It is this which has shop. sensitivity resulted loss and partial permanent disability. of the doctors cited the trial court in itsof memorandum decision
above-quoted paragraph
was not
evidence, which,
“credible
would
unexplained,
support
if
of the commission” that there was no
*11
St. Mary’s Congregation v. Industrial
disability.
Comm.
525, 531,
19;
62
265 Wis.
N. W.
Fruit Boat
(1953),
(2d)
304, 307,
Industrial
Market v.
Comm.
264
(1953),
Wis.
58
689; Motor
N.
Co. v. Public
Transport
W.
Service
(2d)
548;
263
Comm.
Wis.
56 N. W. (2d)
and
(1953),
Hills
Co.
Industrial Comm.
Dry Goods
v.
Wis.
76, 85,
Accepting it is our to his Ampco, was due employment by' dermatitis no other that the record will support considered opinion that has sustained disability than permanent hands become of the skin of his fingers having as a result as a the course of employment Ampco sensitized during there with irritants which of contact produced result of years further determine that measure We sensitivity. such terms of is the in percentage percentage disability such unable as a result of to do being he has sustained loss VO VO he was where in machine or industrial
work plant shop we quote hour. On this latter point earning per $1.89 57.00, 1, sec. Larson, p. Law of Compensation, Workmen’s as follows: the result of disability inability, “Compensable work suitable or obtain to injury, perform
work-connected The degree and training. to the claimant’s qualifications which of earning capacity, on disability depends impairment by comparing pre-injury turn is determined presumptively ability; presumption with earning earnings post-injury earn- however, be rebutted may, by showing post-injury do not reflect claimant’s true earning power.” ings accurately commission, main- in behalf of the attorney general, it is tains that if there is disability only and, therefore, must hands and not the entire body, 102.52, Stats. 1949. measured the schedule set forth in sec. a hand have lost a or finger We cannot could agree. Wagner in a machine or industrial and still be able to work shop again rate from that at a reduced wage plant, although probably How- the amputation. earned injury resulting prior of his ever, sensitized condition in the permanently present in a machine shop he is rendered unemployable hands than that limited His is greater industrial plant. *12 of the same category and is one only actually his hands to the the whole We deem following to body. as extending Larson, in 2 Law of Workmen’s Com- enunciated principle 58.20, is to the sec. applicable by analogy p. pensation, at bar: case that, if the agree of modern decisions majority great
“The the member extend to other of parts of the of the loss effects the allow- their schedule efficiency, interfere with and body ance for common is not exclusive. A example the lost member in an of a is that which amputation leg kind of decision of this rest the body, debility, into the of general shooting causes pain socket, other effects result- the or extended of hip stiffening work than would interference with to ability in ing greater the a and loss of leg.” be from simple uncomplicated expected
VO 1-0 From the the record before are unable to determine us we we believe of Neither do percentage permanent disability. that so such is commission to do record sufficient for the such without the reason for further One taking testimony. to the conclusion is that there is no in the record as evidence rate of where hourly county, Wagner Milwaukee pay at outdoor labor other resided time of for common injury, that, than farm A reason is evidence although labor. second labor, this as to the rate of for farm covered was adduced pay farmers, the necessarily laborers work for with latter who has demonstrated the work to be done. directing Wagner has to successfully that he the know-how and operate ability himself, therefore, and, command higher a farm should rate than a common farm laborer. wage sustained any In an to had Wagner disprove attempt testi- loss, carrier for the insurance rely upon counsel wage from to income as the amount Wagner’s gross mony However, is net in 1951 and 1952. it operations farming income, the farm consumed products the value of including material on the issue of wage which is the by Wagner family, should be made From such deduction figure properly loss. reasonable on the amount invested for a return residence, land, in- and farm exclusive buildings, in his to at farm order arrive personal property, come-producing to labor. net income due solely in this court secs. 251.09 vested to power
Pursuant Stats., the cause should be we conclude that and 102.24 (1), such commission for purpose taking to the remanded sustained, loss on the issue of further sustainable, as to enable the may necessary by Wagner the percentage permanent disability compute commission this opinion. with in accordance as in so far is affirmed judgment the Court.—The By fixing April commission’s applicable reversed, of the judgment the remainder of injury, date *13 567a
and cause to remanded the circuit court with directions to in turn remand to the commission for the of further taking and an award of making permanent dis- partial in accordance ability with this In such remand opinion. to the commission of the award temporary partial disability based of to upon percentage cent is per stand unless 33% the commission determines permanent partial disability cent, at than in greater percentage which latter per 33% case the percentage is to temporary partial disability be that of the increased to permanent partial disability. took C. no J., part. Fairchild, was filed following opinion 1957: January motions (on The briefs jor rehearing). filed Currie, J. motions support respondents’ for rehearing contend that must be determined on partial disability the basis loss, not loss. The body statute sec. governing Stats., 102.44 as which reads follows: “For not covered permanent partial disability pro- visions of sections 102.52 to 102.56 the aggregate number weeks of shall bear such to relation the number indemnity of weeks set as the nature of paragraphs (a) (b) out bears one total injury causing permanent shall be at the rate of payable and weekly earnings in section 102.11. Such cent per average
of the to be employee computed provided shall be in
weekly indemnity addition for to that he and shall be for compensation healing period period live, exceed, however, not these may named limita- tions, to wit: thousand weeks all “(a) One persons fifty years age less. each For successive “(b) yearly age with group, beginning the maximum limitation fifty-one years, shall reduced by per cent with no reduction in per year, excess of 50 per 2% cent.”
567b The case of Northern States Power Industrial Co. v. 70, 217, 252 is Comm. 30 cited in Wis. N. W. (1947), (2d) of That an such contention. case involved support injury accident, not, as sustained a result of and as in the instant case, This caused disease. distinc disability by occupational a tion would immaterial if we with scheduled dealing were 102.55, 102.52 and relative covered secs. disability by Stats. v. Industrial Comm. Bay Drop Green Co. Forge 60 N. 61 N. (2d) Wis. W. W. (1953), (2d) is as to case of 847. such distinction material Whether bear due to disease permanent partial disability occupational is an sec. 102.52 issue no relation to the schedules of ing which confronts us here. sus
In the Northern States Power Co. Case the employee intervertebral of a tained an in the nature injury protruded ato a demonstration while lifting refrigerator during disc medi customer, Based upon for he was upon. which operated a 10 to 15 cent he had sustained per per cal the the to motion in spine, manent due loss of disability at disability his permanent partial commission determined on was affirmed 12)4 cent its award compensation per and his the On employer circuit court. appeal, review the by that, earn the because employee’s carrier contended insurance healing of the after the ending or higher, were as ings high, accident, he had sus the time of the at as were they period, within disability meaning no partial tained permanent court, written in an This opinion sec. 102.44 Stats. amend to the held that prior Mr. Justice Wicichem, Act, establishing Compensation ments to Workmen’s disabilities, disability permanent partial relative schedule and that, loss, of such reason but by wage was measured measured is now disability amendments, partial permanent from the quote loss. We and not wage impairment by body :76) p. as follows Wis. (252 opinion 567c it is to
“During healing period establish a possible loss because that ais event. an past But since award to be made for all time disability at the end this it must be period based some sort of upon prediction It impairment legislature earning us that capacity. appears has chosen specifically the case nonschedule permanent partial disabilities the method comparing of the severity injuries such a with those causing total causing permanent disability. We see no con- other *15 struction that will give to sec. 102.44 meaning (3).”
In the case aof nonschedule or relative in due to injury accident, dustrial such as was involved in the Northern States Case, Power Co. it is for a possible the physician examine injured after the employee, has been healing period completed, to determine whether there has been of any impairment body If found, functions. such is it is further impairment possible for the physician determine the ratio which such impair ment bears to total on place such disability percentage permanent In partial case of some disability. dis partially abling occupational disease it be also for a may possible physician by examination to physical determine the percent However, of age permanent then partial disability existing. case, in the instant is it to make a utterly impossible physical examination of and determine the Wagner percentage permanent This is partial because the disability. sensitivity produced by the dermatitis cannot be measured objectively.
There is no but has question what sustained permanent as out in the partial disability pointed original this, It is our conclusion that in situations like where opinion. the permanent cannot be determined ob- partial disability examination, jective it be must determined on the basis of other result Any would wage impairment. leave Wagner Stats., remediless. of sec. 102.44 wording does not preclude such an and we deem the interpretation, same to consistent with the of the objectives Workmen’s Compensa- tion Act.
567d this statement The brief of the attorney general questions the : 560) “Obviously in our per- original opinion (ante, p. the be less than cannot disability centage temporary partial disability.” of permanent percentage is, under the provisions disability, Temporary partial loss, Stats., while in terms of measured wage sec. 102.43 (2), sec. under provisions partial disability, permanent Stats., the basis of is measured on body impair- 102.44 (3), amount of such body impairment, To establish the ment. situation pres- unusual type occupational-disease highly stick. here, measuring bemay only wage impairment ent However, under provisions partial temporary loss. in terms of actual wage 102.43 is measured sec. (2) loss be considered may actual factors than Other out partial disability, pointed determining Therefore, sentence the above-quoted in the opinion. original This erroneous and is withdrawn. in the opinion original mandate, which requires into the error carried over same be modified. the same we of our original opinion
In the concluding paragraph *16 the commission remanded to cause was being that the stated secs. 251.09 and in this court under vested the under powers consideration, we now deem further 102.24 Stats. Upon (1), of this court on any such remand powers to base it was error 251.09, has no to court this section application sec. under orders under the Work Industrial Commission. review of makes a If the commission finding Act. Compensation men’s evidence, and the commission’s not supported of fact thereof, on such finding, setting rests order, or any part authorizes remand court review on of the order aside of sec. 102.24 (1), under provisions further proceedings Comm. v. Industrial Co. Realty M. M.& Stats. the errone In the instant case 413. 52, N. W. (2d)
Wis. determined that there was which was that of fact ous disability. partial no permanent
567e the Court.—The mandate is
By amended to read original as follows: is affirmed in so far as “Judgment applicable the commission’s as the in- fixing April date of and the determination of the jury temporary partial disability. reversed, The remainder re- judgment and cause manded the circuit court with directions to set aside that of the order which found no permanent part disability, commission for to remand to the of further taking testi- an and the award of making mony permanent partial in accordance with this Motions for opinion.” re- are denied without costs. hearing