South Side R. M. Co. v. Industrial Comm. , 252 Wis. 403 ( 1948 )

Action commenced on December 20, 1946, by the South Side Roofing Material Company and its insurer, Massachusetts Bonding Insurance Company. There was also an action begun on December 31, 1946, by W. J. LaVariere d/b/a L S Roofing Company and its insurer, the Fidelity Casualty Company of New York. Each action was brought to set aside an interlocutory order of the Industrial Commission of Wisconsin ordering plaintiffs to pay certain sums as compensation to Harold Armbruster.

On April 12, 1940, Harold Armbruster, then age thirty, was employed by Berlin Chapman Company. On that day, while lifting a hanging scale weighing one hundred thirty-two pounds, he suffered an injury to his back. For this injury he received disability compensation of $26.26. About a a year later he filed an application for additional compensation since he was still troubled with pain in his back. On March 24, 1941, he was examined by Dr. Robert P. Montgomery. The doctor's report reveals that Armbruster had a structurally weak back which became symptomatic as a result of the musculo-ligamentous tear in the lower part of the back which occurred when he was lifting the scale while working for the Berlin Chapman Company the year before. After a hearing was had before the commission in April, 1941, the examiner concluded that Armbruster had been paid the entire amount of compensation to which he was entitled and that "any pain or distress that the applicant now suffers in his back is due to a congenital condition which was not caused or affected in any way by the injury suffered by the applicant on April 12, 1940." Accordingly an order was issued dismissing Armbruster's claim on April 25, 1941.

On March 9, 1944, Armbruster sustained a second injury to his back. This occurred while he was employed by W. J. LaVariere d/b/a L S Roofing Company. He was hanging onto a rope which came loose, causing him to fall. For this injury he received disability compensation amounting to $89.92.

Armbruster entered the employ of the South Side Roofing Material Company on March 7, 1945. The following day, while he was lifting a sixty-five-pound roll of roofing paper, he experienced sharp pain in his back, causing him to drop the roll and forcing him to double up and lean against the wall for support. He received $40.83 in disability compensation for this injury.

From March 24, 1945, to October 20, 1945, Armbruster was in the army. After his discharge he was employed for several months in roofing work. Between April and September, 1946, he was employed by one Rozman. For some weeks he did carpentry work for himself. On August 24, 1946, he became unable to work because of trouble with his back, and from then until October 7, 1946, he performed no remunerative work. It is his claim for compensation for this period of disability in 1946, which is the subject matter of these actions. He was not an employee at the time this disability occurred.

Prior to the first injury in 1940, Armbruster evidently had had no trouble with his back. His testimony is that continuously since that first injury he has been troubled with pain in his back. The pain has varied in severity. There were times when he had to discontinue doing heavy work. He claims that with each of the succeeding injuries his back got worse.

A hearing was held on October 18, 1946, on the matter of Armbruster's claim for compensation for the disability he suffered between August 24 and October 7, 1946. Each of the three employers, in whose employ he had experienced the three prior compensable injuries, was represented. At that hearing Dr. Aaron Yaffe was called as a witness. He had examined Armbruster in February, 1946, at the request of the insurer for the South Side Roofing Material Company, where Armbruster had received the third of his injuries in March, 1945. Dr. Yaffe's testimony was to the effect that Armbruster had a chronic back, that after sustaining a back strain he was more susceptible to back strains later on, and that the second and third injuries were recurrences of the condition that had started in 1940.

In the Industrial Commission's order and award, the examiner said, "The issues are whether the applicant has sustained further disability as a result of one or more of said injuries, and if so, to which injury or injuries it is attributable . . . ." The commission found that the back condition started with the first injury and was aggravated by the second injury and further aggravated by the third, and that the disability from August to October, 1946, was the cumulative effect of the three injuries. Findings of fact were made fixing the amount of temporary compensation. The finding of the examiner, as approved by the commission, reads: "It is computed that for said recent disability the applicant is entitled to indemnity for six weeks and one day at the rate of $24.50 per week or in the sum of $151.08. One third of said sum is $50.36 which said sums are now due and payable by the second and third respondents [The South Side Roofing Material Company and W. J. LaVariere d/b/a L S Roofing Company] and their insurers." It is then further stated that "If it is eventually determined that said period of recent disability is merely a manifestation of permanent disability, it is intended that the sums now awarded may be credited against compensation becoming due for said permanent disability."

The interlocutory order which followed provided that the L S Roofing Company and its insurer should within ten days pay to the applicant $50.36 and that the South Side Roofing Material Company and its insurer also should within ten days pay to the applicant $50.36. The order dismissed Armbruster's claim as against the Berlin Chapman Company, where his first injury occurred, because it had no Jurisdiction to order that company to pay the remaining third, having made findings of fact and an order on April 11, 1941, which relieved Berlin Chapman Company and its insurer from any further liability for the injury occurring in 1940.

In their actions in circuit court seeking to set aside the order of the commission, the plaintiffs contended that the findings of fact were conjectural and speculative, unsupported by substantial evidence. The circuit court affirmed the commission's order. The respondent Armbruster, upon this last claim, insists upon the existence of a bodily condition of weakness allegedly resulting from injuries occurring during his employment by three successive employers. The Industrial Commission, in passing upon the claim, decided that it was proper to divide the liability and apportion it in equal degrees among the three employers. The employers were successive, and there was a considerable period of time between employments. Lacking jurisdiction to make an award against the first employer because of the lapse of time and a former decision, the commission could not place a burden there of one third, but did make an award assessing one third on the second and third employers.

This effort to sum up the loss and levy compensation in equal proportions upon several distinct and successive employers cannot be supported.

The Workmen's Compensation Law considers the existence of a status, that is, of employer-employee, and affixes certain obligations upon the employer because of that status. Those obligations are to be determined under the statute. The employer is bound to respond in workmen's compensation for whatever injury an employee sustains during the course of his employ with that employer. Sec. 102.03(1), Stats. 1945. The purpose is to fix the liability on the particular employment where it belongs. The statutes and decisions in the consideration of cases involving occupational disease, for instance, make it clear that the employer for whom the employee works at the time of the onset of a disability is liable. Sec. 102.18(5), provides:

"If it shall appear to the commission on due hearing that a mistake has been made in an award of compensation for an injury when in fact the employee was suffering from an occupational disease, the commission may within three years, set aside such award, and make a new award under this section."

In Zurich Gen. Acc. L. Ins. Co. v. Industrial Comm. (1930), 203 Wis. 135, 146, 233 N.W. 772, the court said,

"Upon a full reconsideration of the entire matter, it is considered that it should be held that the `time of accident' within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. . . . If . . . there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employee is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account."

This is not a case involving an occupational disease, but it is contended that similar reasoning should apply. The claimant here was not an employee of anyone during the period for which he seeks compensation. He claims, however, that his disabilities were caused by the previous injuries. In WesternLime C. Co. v. Industrial Comm. (1928) 194 Wis. 606,608, 217 N.W. 303, the rule is stated thus:

"There must be a showing made by the claimant, in order to sustain an award for such a subsequent injury, that it can be traced back to, and have some causal connection with, the first injury occurring while in the immediate service of the employer." See Employers Mut. L. Ins. Co. v. IndustrialComm. (1933) 212 Wis. 669, 672, 250 N.W. 758; American Rolling Mill Co. v. Stevens (1941), 290 Ky. 16,160 S.W.2d 355.

At different times three injuries for which Armbruster made claims were considered by the Industrial Commission. At none of those times was there any attempt to determine any per cent of partial permanent disability. Had it been concluded that while working for the Berlin Chapman Company he sustained a partial permanent disability, that much of course, would fail upon that employer. Employers Mut. L.Ins. Co. v. Industrial Comm., supra. If it had been found at the time of his injury while working for LaVariere that that second injury caused or contributed further to a partial permanent disability, then, of course, LaVariere would be accordingly liable for Armbruster's increased disabilities due to that employment. See sec. 102.59(1), Stats. 1945. So also in the case of the employment with the South Side Roofing Material Company. But, as we have noted, no partial permanent injury was found by the commission at any of the times that claims by Armbruster were before the commission. No new evidence has been introduced at this time to warrant the conclusion that each injury did in fact contribute to a partial permanent injury or disability, a condition which was not apparent at the times of the injuries. To justify assessing either employer here sought to be charged with one third of the compensation which Armbruster's alleged disability is considered to merit, the commission ought to have found upon competent evidence that the only causes of his present disability were those three injuries and that each was equal in causal effect to each of the others. No such finding was made, nor could it be supported by the evidence. The commission is not vested with power to award compensation as it may think it ought to be awarded, nor is it permitted in selecting a method of distributing a burden, to resort to its ideas of what would be charitable or equitable, regardless of the degree of causation. The rule established by law requires the commission "to proceed upon the basis of certain established standards."Welhouse v. Industrial Comm. (1934) 214 Wis. 163,165, 252 N.W. 717.

In 1941, the commission considered a second claim alleged to have arisen out of the first injury at the Berlin Chapman Company on April 12, 1940. In that second claim Armbruster sought to show that his injuries had been more extensive than it had been thought when he was awarded $26.26 at the time of the injury the year before. At the hearing in 1941, the report of Dr. Robert P. Montgomery was received in evidence. He reported that he believed the injury of 1940 in no way permanently altered Armbruster's structurally weak back; that Armbruster's complaints were entirely of the basis of a chronic postural back strain secondary to structural defects in the spine and congenital shortening in the right lower extremity; and that Armbruster was likely to continue to have pain in the lower part of his back when the demands on the back were heavy. Dr. Montgomery had taken X rays of Armbruster which showed the left side of the pelvis was elevated an estimated one half to three quarters of an inch, that there was a right lower dorsal, upper lumbar scoliosis, and that the lumbosacral articular facets were asymmetrical. There was no evidence of bone or joint disease or trauma in any of the X rays.

Dr. L.J. Seward, who had attended Armbruster, testified at the 1941 hearing that he agreed essentially with Dr. Montgomery's report. He did, however, express an opinion, based on the history given by Armbruster of his having done heavy work all his life, that the injury Armbruster had in 1940 must have been the cause of the trouble. He said further, "I have to take his word for the pain."

Considering this medical testimony and the claimant's own testimony, the commission in 1941 determined "that the applicant suffered no permanent disability because of the injury in the course of his employment on April 12, 1940; that any pain or distress that the applicant now suffers in his back is due to a congenital condition which was not caused or affected in any way by the injury." Accordingly, his application further compensation was dismissed.

There is a lack of substantial evidence on which to base a finding that his condition differs from that which existed when he came before the commission in 1940 and 1941. He has since suffered two more temporary compensable injuries involving his back, one when working for LaVariere in 1944 and one when working for the South Side Roofing Material Company in 1945, but a reference to the facts set forth above compels the conclusion that the only injury disclosed by the evidence in either case was a temporary strain, for which compensation has been made. These strains are likely to occur due to the condition of his back and the nature of the work he did. Dr. Yaffe, who had examined Armbruster after his third injury, testified that the trouble Armbruster had had off and on ever since 1940 amounted to intermittent remissions, to be expected in a case of a chronic back. He believed that each injury was an aggravation of symptoms that Armbruster had had continuously since 1940.

Besides the three employments referred to, Armbruster since 1940 has worked for himself in chopping wood and doing some building. He has served in the army, being inducted after a physical examination. He appears to have complained considerably about back strain then, although no objective findings seem to exist. He had similar trouble with his back while an employee of one Rozman, whose employ he left because, as he said, he did not want to involve him in a workmen's compensation claim. Evidently during the years since 1940 remissions have occurred when he has subjected his back to considerable strain and have disappeared upon his resting thereafter. The conclusion necessarily is that no permanent injury resulted from the several employments. As described by the doctors and confirmed by answers to questions made by the claimant himself, his back condition is chronic.

This state of facts leaves the record without substantial bases on which to find that Armbruster's disability in 1946 was different from that which existed as far back as 1941 and before his employment by either LaVariere or the appellant here. On the evidence it not only could as well be concluded that claimant's present disability arose from other sources than the injuries for which he here seeks compensation, but the testimony is to that effect. It might be urged that the first injury was the cause of all the trouble. Or it might be urged that other periods of heavy work contributed as much or more to the present disability than the claimed injuries did. But the congenital condition of the back has been present at all times. Evidently conjecture and speculation were resorted to in reaching the conclusion on which the award was made. Under the circumstances presented by this record there is nothing to warrant dividing liability for the disability equally among the three successive employers and making W. J. LaVariere d/b/a L S Roofing Company and the appellants here chargeable with one third of the compensation awarded. We conclude that the findings of the commission are unsupported by the evidence. F. A. McDonald Co. v. Industrial Comm.250 Wis. 134, 26 N.W.2d 165.

By the Court. — Judgment of the circuit court reversed, with directions to enter an order vacating the interlocutory award. Record remanded for further proceedings.