Summary
In Harnischfeger Corporation v. Industrial Commission, 253 Wis. 613, 34 N.W.2d 678, a workman had fractured his left leg in a compensable accident resulting in an osteomyelitis and in a ten per cent permanent partial disability as to use of his leg.
Summary of this case from Manley v. American Packing Co.Opinion
October 15, 1948. —
November 16, 1948.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellant there was a brief by L. A. Tarrell, attorney, and T. W. Korb of counsel, both of Milwaukee, and oral argument by Mr. Tarrell.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
This is an appeal from a judgment, dated April 16, 1948, confirming an interlocutory order of the Industrial Commission, dated June 14, 1947, ordering the plaintiff, Harnischfeger Corporation, to pay to the defendant, Alden Wickman, certain sums as compensation for injuries sustained while in its employ, certain sums directly to J. A. Martineau as attorney's fee, and reserving jurisdiction for determination of past and future medical expense and future disability.
On December 1, 1937, Alden Wickman, age twenty-six, in the course of his employment by Harnischfeger Corporation, sustained an injury to his left leg which resulted in a compound comminuted fracture of the left tibia in which osteomyelitis developed and a straight break of the fibula which healed satisfactorily. He returned to work on March 13, 1938, was hospitalized in 1940 for about two weeks, and then worked steadily until August 31, 1942. On that date, while on a fishing trip, he was in an automobile accident and fractured his left leg in the same place as the previous fracture. On September 30, 1942, an application for compensation was filed, and on June 14, 1943, the commission found that Wickman had sustained certain disability as a result of a compensable injury on December 1, 1937, and further:
"That on August 31, 1942, applicant was involved in an automobile accident which resulted in refracture of his injured leg at the site of previous fractures caused by his injury. of December 1, 1937; that because of injury sustained in the automobile accident, disability has resulted in .excess of that which had resulted previously; that disability caused by the automobile accident was the result of an intervening cause and not the proximate result of the injury of December 1, 1937; that at the time of his automobile accident applicant had recovered from the effects of his injury of December 1, 1937, except for a permanent partial disability of ten per cent loss of use of his leg at the knee; that following applicant's first injury, he developed osteomyelitis which has now subsided, but which may, in the future, recur and result in additional disability; that the commission, therefore, reserves the right at a future date to pass upon additional liability; that up to the time of final hearing, the respondent is not liable for additional compensation benefits because of disability resulting from the injury of August 31, 1942, nor for any medical or hospital expenses incurred by reason of that injury."
On March 25, 1946, when he did not have the status of an employee, Wickman sustained a spontaneous fracture of his left leg while walking. There was medical testimony to the effect that the osteomyelitis resulted from the original injury and had weakened the leg so as to cause the pathological fracture on March 25, 1946. Other facts will be discussed in the opinion.
There are three incidents which are involved in this case: (1) The 1937 compensable accident when Wickman fractured his left leg; (2) the 1942 accident when Wickman fractured' his leg in an automobile accident while on a fishing trip; and (3) the 1946 incident when Wickman sustained a spontaneous or pathological fracture of his left leg.
Whether the fracture which occurred on March 25, 1946, was a proximate result of the compensable injury sustained by Wickman on December 1, 1937, presented a question of fact for the commission. Western Lime C. Co. v. Industrial Comm. (1928) 194 Wis. 606, 608, 609, 217 N.W. 303; Frayer v. Industrial Comm. (1934) 214 Wis. 673, 253 N.W. 96.
The evidence is undisputed that Wickman developed osteomyelitis in the tibia following his injury in 1937. Dr. Vander Linde, the physician who treated Wickman from December 1, 1937, until 1944, testified at the January 4, 1943, hearing that on December 1, 1937, Wickman had a compound comminuted fracture of the left tibia and that osteomyelitis developed. At the May 21, 1943, hearing, Dr. Vander Linde again testified as to the evidence of osteomyelitis after the 1937, injury.
Dr. P. S. Epperson, who specializes in X ray, testified that an X ray taken on August 4, 1942, showed a healed fracture and "the osteomyelitis is healed."
Dr. William H. Alexander, who saw Wickman's leg in 1941 when there was a discharging sinus, testified that Wickman probably had a low-grade chronic osteo.
The medical testimony of the doctors established that osteomyelitis resulted from the crushing leg injury. Therefore, in its award of June 14, 1943, the commission stated in part: "developed osteomyelitis which has now subsided, but which may, in the future, recur and result in additional disability."
Wickman brought an action to review the commission's finding that the 1942 disability was caused by the automobile accident and was not the proximate result of the injury of December 1, 1937. The action was dismissed on plaintiff's motion. The Harnischfeger Corporation filed no answer and no cross complaint. It need not be considered whether the appellant is now bound by the 1943 determination of causal relationship between the 1937 injury and the osteomyelitis that followed for res judicata does not apply to temporary awards of the commission. Hinrichs v. Industrial Comm. (1937) 225 Wis. 195, 273 N.W. 545. The commission's finding does, however, evidence the presence of medical testimony to sustain the 1943 finding, and acquiescence in that finding by the appellant.
The commission in its finding of May 29, 1947, found that Wickman sustained a spontaneous fracture of the left leg while walking. Dr. C. H. Boren testified that bone disturbances, whereby the structure, tensile strength of the bone, has been weakened, may cause spontaneous fracture. Wickman testified that the 1946 accident happened when he stepped out of a car, started walking about two steps and his left foot came down on a frozen rut. He fell forward. He stated that he knew his leg was broken as soon as he fell down as it snapped when he stepped on the frozen rut. There is evidence, as found by the commission, that Wickman sustained a spontaneous fracture of the left leg.
Dr. William H. Alexander, who specializes in general and industrial surgery, testified that Wickman suffered from osteomyelitis as a result of the original injury; that the osteomyelitis never disappeared entirely; and that the osteomyelitis was the cause of the spontaneous or pathological fracture which occurred in 1946.
Dr. C. H. Boren, who did a great deal of work in general surgery and the industrial field of medicine and surgery, testified that low-grade chronic osteomyelitis may have quiescent periods and such periods do not indicate that the condition is entirely healed or cured, that even a quiescence for three or four months would not indicate complete healing, and that if it broke out again it was a part of the original process. His testimony confirms that given by Dr. Alexander, and the testimony of either or both more than fulfils the requirement of evidence to sustain the commission's findings.
There is medical testimony to the contrary by Drs. Vander Linde and John O. Dieterle with reference to the spontaneous fracture in 1946 being a proximate result of the 1937 compensable accident, but the testimony of the other physicians refers to testimony at the 1943 hearing on the question of whether the 1942 accident was a result of the 1937 accident.
The commission's finding on disputed medical testimony is conclusive in view of the testimony of Drs. Alexander and Boron that the spontaneous fracture in 1946 was the proximate result of the compensable injury which occurred in 1937. A. D. Thomson Co. v. Industrial Comm. (1928) 194 Wis. 600, 602, 603, 217 N.W. 327; Crucible Steel Casting Co. v. Industrial Comm. (1936) 220 Wis. 665, 669, 265 N.W. 665; Squires v. Industrial Comm. (1946) 248 Wis. 189, 21 N.W.2d 264.
By the Court. — Judgment affirmed.
BROADFOOT, J., took no part.